Bell v Nexus Primary Health
[2022] VSC 605
•13 October 2022
| 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 worked as a plumber and still works as a plumbing trainer.
For a period in 2005, the plaintiff was an inpatient at Albury Psychiatric Hospital. She gave evidence that it was related to stress in connection with the activities of her ex-husband.[2] In the years that followed, she seems to have undergone various psychiatric assessments and treatment.[3]
[2]T26-27.
[3]Exhibits 13, 14, 15, 16 and 17.
In 2008, the plaintiff began working for Mitchell Community Health Services, which subsequently became Nexus Primary Health. The relevant premises of the defendant are in Ferguson Street, Broadford. The plaintiff and her husband lived a short distance away on the edge of Broadford.
Initially, the plaintiff worked for the defendant as a receptionist and then in community development and bushfire case management. In 2010, there was a vacancy for a position as a family violence outreach worker. The plaintiff applied for and obtained the position. She was placed on a three month probation plan and seems to have had a twelve month plan which contemplated training, supervision and mentoring.[4] The plaintiff received some training and completed a Certificate IV in community services work.[5] She does not have a degree in social work.[6]
[4]Exhibit 1.
[5]T29-31.
[6]Apparently in contrast to perhaps some but not all other family violence outreach workers: see the evidence of Ms Wearne at T371-372 and T398-400.
The plaintiff’s job required her to support victims of family violence. Overwhelmingly, the victims were referred to the defendant by Victoria Police. The plaintiff seems to have attended the homes of her clients, but also to have provided other support, such as at court hearings involving her clients. The defendant had a written policy relating to home visits and outreach work.[7]
[7]Exhibit 3.
The defendant also had a system of electronic note-taking – known as ‘SHIP notes’. The SHIP notes in respect of one of the plaintiff’s clients – Mrs Dianne Wales – were received in evidence.[8] The plaintiff supported Mrs Wales over a period of years commencing in 2010. In August 2010, a written clinical supervision record identified Mrs Wales as the plaintiff’s only ‘high risk client’ at that time.[9]
[8]Exhibit 2.
[9]Exhibit 1 (Court Book (‘CB’) 61).
At trial, Mrs Wales gave oral evidence of extensive difficulties with her then husband, Peter Wales. The difficulties included threats and serious assaults.[10]
[10]It will be necessary to refer to this evidence in due course. I have been mindful that Mr Wales is not a represented party.
In 2009 or 2010, another employee of the defendant – Julie Albert – was attacked in the staff carpark and pulled from her car by the hair.[11] After the attack, Suzanne Miller of the defendant chaired a meeting in which she said that Ms Albert had been mistaken for a family violence worker and told staff including the plaintiff to ‘be vigilant and keep your eyes open’.[12]
[11]Exhibit 11 (p.4) and Exhibit 12 (p.1). See also, T104.
[12]T104-105. See also, T59 and T315-316.
In about April 2011, the plaintiff consulted Associate Professor Rao. In June 2011, she was admitted into Delmont Psychiatric Hospital for a period of about 16 days. Associate Professor Rao gave evidence that the plaintiff had suffered an exacerbation of borderline personality disorder and depression. She was treated and later discharged and assessed as fit to resume employment.[13] The plaintiff’s employer was aware of that episode.[14]
[13]Exhibit 21 (CB678-680). See also, T124-127.
[14]See, in particular, Exhibit 1 (CB77). See also, Exhibit 6 (CB548).
At about 8am on 27 March 2013, the plaintiff was attacked when getting out of her car outside the surgery of her general practitioner in Powlett Street, Broadford (‘the incident’). She had stopped to pick up a script on her way to the defendant’s premises in Ferguson Street, which were short distance away. After the incident, the plaintiff suffered a series of further distressing events. The evidence concerning the incident, and subsequent events, will be examined in further detail in due course.
Early in the trial there was an issue concerning the nature and aetiology of the plaintiff’s current psychiatric condition.[15] The defendant ultimately accepted, however, that –
[15]Evident in the cross-examination of Associate Professor Rao: see, T149-177.
(a) the plaintiff suffered post-traumatic stress disorder as a consequence of the incident;
(b) she is consequently unable to work; and
(c) the incident has destroyed her life.[16]
[16]T422.
In that connection, after the incident, the plaintiff was treated for many years by Associate Professor Rao until he stopped taking private patients in late 2021.[17] The plaintiff has endured severe psychiatric symptoms, several inpatient admissions, several courses of electroconvulsive therapy and two admissions to a specialist PTSD program at The Austin Hospital. In early 2022, the plaintiff’s treatment was taken over by Dr Tipirneni, a psychiatrist at Bundoora Private Hospital.[18]
[17]T149.
[18]Exhibit 22.
Ultimately, the case for the plaintiff was that –
(a) it was more likely than not that her assailant in the incident on 27 March 2013 was Peter Wales;
(b) prior to that time, the defendant had negligently failed to remove her from the Wales file; and
(c) the negligence was a cause of her injury, loss and damage.
To the contrary, the defendant contended that –
(a) it could not be concluded that the plaintiff had been assaulted by Peter Wales;
(b) further, the defendant did not owe to the plaintiff a duty to control a risk posed by the criminal offending of an unknown person;
(c) the defendant did not breach any duty of care owed to the plaintiff; and
(d) it could not be concluded that any negligence of the defendant was a cause of the plaintiff’s injury, loss or damage.
It will be evident that the defendant came to focus its attention upon the defence of any contention that it was liable to the plaintiff. In the end, the extent of dispute in respect of issues of quantum was quite confined.
B The witnesses and other evidence
Oral evidence was received from –
(a) the plaintiff;
(b) Associate Professor Rao, treating psychiatrist;
(c) Graham Bell, the plaintiff’s husband;
(d) Dianne Wales;
(e) Melissa Scibberas, a former workmate and friend of the plaintiff;
(f) Gary Allan, forensic accountant;
(g) Detective Leading Senior Constable Bronwyn Grant, who had investigated the incident and subsequent events; and
(h) Kathryn Wearne, a social worker and senior manager employed by the defendant.
The latter two witnesses gave evidence as a consequence of subpoenas issued during the course of the plaintiff’s case.[19]
[19]Leave to issue such subpoenas was not resisted by the defendant. I do not mean to suggest that the defendant should have resisted the applications for such leave.
In final address, counsel for neither party sought to criticise the reliability or credibility of the witnesses to which I have referred. Generally speaking, the evidence of those witnesses should be accepted as having been given honestly.
Notwithstanding the above, I should refer specifically to the oral evidence of the plaintiff.
Any suggestion that there was any calculation in the manner in which the plaintiff gave her evidence was expressly disclaimed by senior counsel for the defendant.[20] That concession was very properly made. The plaintiff was impressive. She repeatedly gave evidence contrary to her own interest and plainly endeavoured to give evidence honestly.
[20]T430.
That said, the medical evidence – and to some extent the plaintiff’s own evidence – suggested that her memory and concentration have been affected by her psychiatric condition and subsequent treatment; particularly the various courses of electroconvulsive therapy.[21] To me, that was quite evident in the manner in which she gave her evidence. Her sense of chronology and the detail of events was at times quite hazy.
[21]T24. See also, evidence of the plaintiff’s husband: T195, and the opinion of Dr Athey: Exhibit 23 (CB775).
Further, the plaintiff was at times confused by or had difficulty following the thread or entire content of questions asked, particularly in cross-examination. That had the consequence of her answering what she broadly anticipated to be the question rather than what she was actually being asked.
I have made allowance for these aspects of the plaintiff’s presentation when assessing her evidence.
A significant body of documentary evidence was received into evidence. Much of that related to the psychiatric assessment and treatment of the plaintiff before and after the incident. As I have noted, the only medical practitioner who was ultimately required for cross-examination was Associate Professor Rao.
Other documentary evidence of significance was received into evidence, particularly –
(a) documents relating to the plaintiff’s employment, probation period and clinical supervision;[22]
[22]Exhibit 1.
(b) the ‘SHIP notes’ relating to Mrs Wales;[23]
[23]Exhibit 2.
(c) various occupational health and safety committee meeting minutes of the defendant;[24]
[24]Exhibit 4.
(d) the incident report of the defendant relating to the incident on 27 March 2013;[25]
(e) the Victoria Police ‘LEAP’ record relating to the investigation of the incident;[26] and
(f) the Victoria Police ‘Interpose’ shell relating to the investigation of the incident and subsequent events.[27]
[25]Exhibit 5.
[26]Exhibit 11.
[27]Exhibit 12.
For completeness, I should mention that the defendant ultimately elected to call no witnesses to give oral evidence. That occurred despite evidence given in the course of the plaintiff’s case in respect of –
(a) Ayfer Berdilek, another family violence outreach worker employed by the defendant;[28] and
(b) Suzanne Miller, the chief executive officer of the defendant.
[28]Some of the documentary evidence suggests that Ms Berdilek was, at least at one point, anticipated to be the plaintiff’s mentor: see, Exhibit 1 (CB58-59).
In the course of the cross-examination of the plaintiff there was significant puttage in respect of what was identified as being various anticipated evidence of Ms Miller and, to a lesser extent, Ms Berdilek.[29]
[29]T82, T89 and T111-113.
Notwithstanding the above, and whilst it was at various points contemplated that Ms Berdilek and Ms Miller might attend to give oral evidence, senior counsel for the defendant left open the prospect that they might not be called and ultimately confirmed that no such evidence would be called.[30]
[30]See, in particular, T306 and T412-414.
At that juncture, senior counsel for the plaintiff applied for leave to re-open the plaintiff’s case in order to subpoena Ms Miller to give evidence. That application was refused.
In the course of the events to which I have referred, senior counsel for the defendant accepted that the defendant could be exposed to unfavourable inferences in light of its failure to call, in particular, Ms Miller. In that connection, senior counsel acknowledged that the plaintiff’s evidence ‘about various things that she said she told Ms Miller’ could be considered to be ‘uncontradicted’.[31]
[31]T415.
In Cargill Australia Ltd v Viterra Malt Pty Ltd (No 28),[32] Justice Elliott observed that all evidence must be weighed according to the proof that it was in the power of a party to have produced and the power of an opposing party to have contradicted.[33] In respect of the failure of a party to call a witness or to adduce evidence on particular topics, his Honour stated –
The unexplained failure to call a witness may give rise to a number of possible inferences. These include: (1) the uncalled evidence would not have assisted the party that failed to call the witness; (2) the court may draw, with greater confidence, any inference unfavourable to that party if that witness would be able to “cast light on whether the inference should be drawn”; (3) the court may more readily accept evidence because it was left uncontradicted; and (4) the failure may permit a court to be less inclined to draw inferences favourable to that party from other evidence on that issue.[34]
[Footnotes omitted]
[32][2022] VSC 13 (‘Cargill’).
[33]Ibid [1987], citing Blatch v Archer (1774) 1 Cowp 63; Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345, 405 and 412.
[34]Cargill (n 32) [1989].
In the circumstances to which I have referred, and in light of the concessions properly made by senior counsel for the defendant –
(a) I infer that the evidence of Ms Miller would not have assisted the defendant; and
(b) I accept as uncontradicted the evidence of the plaintiff concerning her communications with Ms Miller (and, for that matter, with Ms Berdilek).
C The incident and related events
In evidence-in-chief, the plaintiff described the incident in the following terms –
I left in the morning to go to work, um, and as you know, the work is quite close to the doctor’s surgery. And I thought I’ll just pop by there on my way and just grab a script. And I was proceeding to get out of my car, and I was grabbed by my hair and my arm was pulled up my back, um, as soon as I stepped from the car. But, I sort of still had my left hand pulling out my bag up to myself, and I was just pushed and squeezed into the corner of the car, um, and I was told not to look at him, um, or he would kill me, and that people such as myself and organisations destroy lives, but I was not to speak to his wife again. Um, and if I looked at him he’d kill me, basically. So, I just froze and went to jelly and slid back into my car.[35]
[35]T59-60. See also, T93.
It was not suggested that I should not accept that description. I accept it as accurate.
I should add that the description to which I have referred is essentially consistent with several documents created immediately after or close to the time of the incident, particularly –
(a) the defendant’s incident report,[36] which relevantly states –
[36]Exhibit 5 (CB533).
Tracey advised that on her way to work she had steped [sic] out of her car and was approached from behind by a man. Tracey was held by the hair and had her arm twisted behind her back. The man threatened her and stated that she ‘did nothing but wreck families’ and that she needed to ‘stay away from his wife’. The man told Tracey she was not to turn around and not to look at him and he ran off. Tracey got back into her car and drove to work.
(b) the record of the plaintiff’s report to Victoria Police,[37] which relevantly states –
[37]Exhibit 11 (p.2).
On Wednesday the 27th of March 2013 at approximately 0800 hours Bell attended at Broadford train station to drop her children off to catch the school bus.
She then drove to the Broadford Medical Clinic located at 28 Powlett Street, Broadford.
She opened her driver side door and leant over to the passenger seat to pick up her handbag. She has suddenly felt someone behind her. The person has grabbed the back of her head by her hair. They then grabbed her left arm and pinned it behind her back. The person held her close so she could not move. A male voice has stated “You stay away from my wife. Don’t contact her again or I’ll fucking kill you again. You people destroy lives. Don’t look at me”. The male has released his grip with force and pushed her forward. The male has then left. Bell who was paralysed with fear has slumped into the driver seat. At no point has she seen the male or any vehicle he has gotten into. When he was behind her, she would described the male as being larger ???? very strong.
(c) the plaintiff’s injury claim form,[38] completed about a fortnight after the incident (albeit with an abbreviated description of the incident) –
Grabbed from behind by my hair. Arm pulled up my back, spoken to then pushed forward.
[38]Exhibit 27.
For its part, the defendant emphasised a particular aspect of the history recorded by Dr Robert Athey, medico-legal psychiatrist, at a consultation with the plaintiff on 20 June 2013.[39] In that connection, Dr Athey recorded as follows –
Ms Bell informed me that she was assaulted on 27.03.2013, when she was grabbed from behind by the hair and her arm was pulled up and twisted behind her back. She was pushed forward. She claimed the assailant said to her that if she turned around and viewed him, he would kill her. He also made allegations that he was no longer allowed to see his children because of her work and he hoped she continued to enjoy her children. She felt that she could not turn around and look at this man, felt terrified and was not able to do anything. She eventually slid into her car and was able to escape. …
[Emphasis added]
[39]Exhibit 23 (CB736). See also, Exhibit 23 (CB751 and CB769).
That aspect was put to the plaintiff at two particular points in the course of cross-examination.
The first point occurred at the end of a long day of evidence by the plaintiff. The plaintiff was shown the page of the report of Dr Athey to which I have referred and said ‘If that’s what it says, that’s possibly accurate’. She was then pressed about whether the incident would have been fresh in her mind at that time and responded ‘it could have – look, I can’t tell you. I’ll try to say yes, it’s accurate’. She was then asked whether she remembered the assailant saying that he was no longer able to see his children because of her, and agreed that she remembered that being said. However, she later did not know whether it was possible that the statement was ‘in fact made’. Shortly thereafter the plaintiff said that she was ‘getting confused’. In the passage of cross-examination to which I have referred, it was broadly evident that the plaintiff was at least tired, and finding it hard to follow and answer the questions being posed. For that reason, the proceeding was adjourned to the next day.[40]
[40]T105-108.
In my view, little significance can be attributed to the plaintiff’s answers given in the course of that passage of cross-examination. It was an example of the tendency of the plaintiff to become confused in questioning, to which I have earlier referred. More specifically, however, the plaintiff was plainly tired and not absorbing the questions being asked. Her evidence at that point is most fairly characterised as having been essentially unresponsive owing to fatigue.
Senior counsel for the defendant returned to the topic the next morning. The plaintiff was again taken to the relevant page of the report of Dr Athey, which senior counsel described as ‘the history that you gave to Dr Athey’.[41] The relevant passage of cross-examination thereafter unfolded as follows –
[41]T114.
‘He also made allegations that he was no longer allowed to see his children because of her work’. That was what was said to you as well, wasn’t it?---If I said that then, yes, it was.
Yes. Now, you know for a fact that nothing you had done through your work had stopped Mr Wales from seeing his children at that time, as at 27 March, don’t you?---I was telling the doctor exactly what was said at the time. It had no reference to whether Mr Wales - what question are you asking, then?
Did you understand my question?---Yeah. I just asked what are - what question are you asking me.
My question – I also want you to tell me whether you agree or disagree with this - but you know for a fact that nothing you had done through your work, up to 27 March 2013, had had any impact on Mr Wales seeing his children?---No, of course not.
…
‘He made allegations that he was no longer allowed to see his children because of her work’. He said that, didn’t he?---Yes. Whatever I said, I would have said that’s in there. It’s in a document.
Yes. ‘And [he] made other threatening comments such as stating that he hopes [s]he could continue to see her children. But from the tone in his voice Ms Bell felt that this was a very distinct threat’. Yes. What was the tone in the voice?---I couldn’t tell you now. We’re in 2022.
Okay. But it’s most unlikely to have been Mr Wales, isn’t it, if that was the content of the conversation?---I have no idea.
Because he knew full well that he could see his children. They were adults?---I haven’t thought about that. [42]
[42]T114-116.
In address, senior counsel for the defendant submitted that in the first part of that passage the plaintiff had confirmed that the relevant part of the history recorded by Dr Athey was ‘accurate’.[43] I do not accept that submission –
[43]T428-429.
(a) the relevant answer of the plaintiff was expressly qualified (‘If I said that then, yes …’);
(b) there were, again, plain elements of lack of comprehension (‘… what question are you asking me’);
(c) it was later apparent that the plaintiff, in fact, had no recollection of what she had said to Dr Athey (‘whatever I said’); and
(d) that which the plaintiff did say in evidence was plainly premised in an assumption that she could have said that which was recorded by Dr Athey because ‘it’s in a document’ – albeit that the fragility of that assumption was the very reason why she was being asked what it was that she had said.[44]
[44]Cf., Philippiadis v Transport Accident Commission [2016] VSCA 1, [105].
In addition, as I have noted, various other documents created on or much closer to the date of the incident contained no such aspect of the history.
In the circumstances, I do not accept that during the course of the incident the assailant said to the plaintiff that he had not been allowed to see his children because of her work.
As I have earlier noted, the incident was the subject of a subsequent police investigation and the plaintiff continued to be the subject of a sequence of intrusive and distressing threats.[45]
[45]T61.
Those threats included a letter seemingly received by the plaintiff at her home on 10 May 2013. A copy of that letter was not tendered in evidence; it was not clear whether a copy was still available. However, the Victoria Police ‘LEAP’ record relevantly states –
ON THE 10TH OF MAY, 2013, THE VICTIM RECEIVED A LETTER IN THE MAIL FROM AN ANONYMOUS SOURCE. THIS LETTER IS OF AN UNPLEASANT AND OMINOUS NATURE AND HAS CAUSED THE VICTIM A GREAT DEAL OF DISTRESS. THE AUTHOR OF THE LETTER MAKES REFERENCE TO THIS INCIDENT AND MAY WELL BE THE SAME OFFN.[46]
[46]Exhibit 11 (p.4).
As is evident, it is likely that the letter came from the assailant in the incident. It follows that by 10 May 2013, at the latest, the assailant knew where the plaintiff lived.
Later, and shortly prior to Christmas 2013, the plaintiff returned home to find a box on her front doorstep. During the trial, it was referred to as the ‘Christmas box’. The plaintiff gave evidence that it contained a letter and bonbon ‘saying this would be the first and last bang that I would see’.[47]
[47]T61.
In the passages of cross examination to which I have earlier referred, it was suggested that the plaintiff’s serious injury affidavit had stated that the letter in the ‘Christmas box’ had included the statement ‘I don’t have my kids now because of you’. To that suggestion, the plaintiff had replied ‘Mmm’.[48] Practically immediately after that, however, the cross-examination of the plaintiff was ceased owing to her evident fatigue.
[48]T107. The plaintiff’s serious injury affidavit was not ultimately tendered into evidence.
I do not accept that such a statement appeared in the letter in the ‘Christmas box’. A contemporaneous note of the content of that letter is recorded in the Victoria Police ‘Interpose’ shell as follows –
I WACHED U THE OTHER DAY GIVE THE SURURETY [sic: SECURITY] DOOR SLUT A CUP A TEE [sic: TEA] THAY WONT KEAP U SAFE HAVE FUN WIF YA KIDS THIS CHRISMAS HORE A CHRISMAS POTO OF A HAPY FAMILY LIKE YRS CUNT THIS IS DA FIRST BANG U WONT SE UR HERE [sic: SEE OR HEAR] THE NEXT.[49]
[49]Exhibit 12 (p.7).
That record is essentially consistent with the account given by the plaintiff in oral evidence.[50]
[50]T61.
The plaintiff and her family went away over Christmas 2013. When she returned, in mid-January 2014, she found that a brick had been thrown through the window of her home.[51]
[51]T61.
In that connection, on 15 January 2014, the Victoria Police ‘Interpose’ shell recorded –
VICTIM AND HER FAMILY HAVE BEEN AWAY FOR A 3 WEEK PERIOD HOLIDAY LEAVING AROUND 3 WEEKS AGO. ARRIVED HOME TODAY AND SAW THE FRONT BLIND IN THE WINDOW ASKEW. ON CLOSE INSPECTION SAW THAT A BRICK HAD BEEN THROWN THROUGH THE WINDOW AND WAS CAUGHT UP BETWEEN THE BLINDS AND A COUCH. APPEARS THAT NO ENTRY HAS BEEN MADE INTO THE HOUSE. PILE OF BRICKS USED TO LANDSCAPE THE PROPERTY SITUATED NEXT TO THE DRIVEWAY. THE BRICK USED MAY HAVE BEEN TAKEN FROM THIS PILE. …[52]
[52]Exhibit 12 (pp.8-9). I note the plaintiff’s evidence that the brick was thrown through her window after returning from a weekend away over Easter time, rather than, as the ‘Interpose’ shell records, Christmas time: T61. This is an example of my earlier observation that the plaintiff’s sense of chronology was, at times, hazy.
It was in this overall context that the plaintiff gave evidence of having taken steps to protect herself and her family, including the installation of ‘cameras and things’.[53]
[53]T61. I note the plaintiff’s evidence that she installed the security cameras in her house after receiving the ‘Christmas box’, and that she received what I have earlier referred to as ‘the letter in the ‘Christmas box’’ on a subsequent date. I repeat my earlier observation in respect of the plaintiff’s memory and chronology. I am satisfied that the plaintiff received this letter in the ‘Christmas box’ just prior to Christmas 2013.
In the circumstances described, it seems to me to be more likely than not that the same perpetrator was responsible for –
(a) the assault on 27 March 2013;
(b) the letter delivered to the plaintiff’s home on 10 May 2013;
(c) the delivery of the ‘Christmas box’ to the plaintiff’s home immediately prior to Christmas 2013; and
(d) the throwing of the brick through the window of the plaintiff’s home in early January 2014.
In that regard –
(a) the first two incidents were vicious, plainly linked and the words uttered during the first and therefore also the second were directed to the plaintiff’s work as a family violence outreach worker;
(b) the second incident shows that the perpetrator then knew where the plaintiff lived;
(c) the third incident – the ‘Christmas box’ – again occurred at the plaintiff’s home and the accompanying letter reveals it to be consistent with the first two incidents in terms of vicious import and words; and
(d) the final incident is close in time to the third incident, again at the plaintiff’s home, and is consistent with the content of the ‘Christmas box’ letter that suggests that during the time concerned the perpetrator had been watching the plaintiff’s home.
I should note that there was a suggestion that a neighbour of the plaintiff could have been the source of the ‘Christmas box’. That possibility seems to have been considered by police, but not pursued nor embraced with any great vigour.
In that regard, the effect of the information that could have implicated the neighbour was debatable. The information – which came from the plaintiff – refers to a dispute relating to a dog, in respect of which the neighbour had sought out the plaintiff’s husband but incidentally verbally abused the plaintiff. The plaintiff’s husband later visited the neighbour and the neighbour wanted to fight him. However, the neighbour later spoke to the husband and apologised and now waves to him; albeit that he ignores the plaintiff and did not apologise to her.[54]
[54]Exhibit 12 (pp.7-8).
It is unclear when it was that these incidents are said to have occurred, and it is not apparent from the police records that the neighbour was ever interviewed by police as a consequence.
Further, the hostility of the neighbour seems to have been directed to both the plaintiff and her husband; and perhaps more the husband than the plaintiff. Indeed, the neighbour seems initially to have sought out the plaintiff’s husband.
However, the letter in the ‘Christmas box’ referred to ‘U’ (ie, ‘you’) having given the installer of a security door a cup of tea. The plaintiff gave evidence of having served tea to security installers.[55] The import of that evidence was that she alone had served the tea – which, of course, is consistent with the position that since the incident the plaintiff has been essentially housebound and her husband has continued to go to work as a plumber or plumbing trainer.
[55]T61: the plaintiff remembered the security measures as having involved the installation of security cameras, but nothing of substance turns upon that detail.
It follows that while the incident involving the neighbour might be said to have been directed to both the plaintiff and her husband and to have been of debatable lasting potency or significance, the letter in the ‘Christmas box’ was angry, ominous and apparently directed to the plaintiff alone. In that sense, it seems to me to be unlikely that the ‘Christmas box’ could have arisen out of the incident involving the neighbour.
Further, in the incident on 27 March 2013, the assailant warned the plaintiff to stay away from his ‘wife’. There was no suggestion that the neighbour’s wife was a client of the plaintiff, or that the plaintiff even knew the neighbour’s wife.
It follows that I do not accept that the neighbour could have been responsible for the assault upon the plaintiff on 27 March 2013 nor, therefore, could the neighbour have been responsible for the letter received on 10 May 2013.
In all of the circumstances, and as I consider it to be more likely than not that the same perpetrator was responsible for all of the incidents to which I have referred, I do not consider it likely that the neighbour was responsible for the ‘Christmas box’ or the incident shortly thereafter involving a brick.
I should also note that there was evidence concerning a further incident in which a tyre was slashed on the car of the plaintiff’s workmate and friend, Melissa Scibberas.
The import of the relevant evidence of the plaintiff was that the tyre had been slashed while Ms Scibberas was living in the plaintiff’s house in Broadford, although she could not be ‘a hundred per cent sure’. The plaintiff said that Ms Scibberas had told Ms Miller of the defendant that she did not know ‘whether it’s got anything to do with Tracey or not’. The police were not called.[56]
[56]T68-69 and T121. See also, T111-112.
For her part, Ms Scibberas gave evidence that the plaintiff had ‘lived not far from work’ and that on some days Ms Scibberas would go to the plaintiff’s home for lunch during her lunch break. That occurred before the incident, but may have occurred after the incident. The tyre of Ms Scibberas’ car was slashed when her car was parked opposite the defendant’s premises. Ms Miller asked her whether it was related to ‘Tracey’s incident’ and Ms Scibberas said that she did not know. Her tyre was slashed somewhere between March 2013 and September 2014, but she could not say when. It did not happen while she was renting the plaintiff’s house.[57]
[57]T309-310 and T317.
On the evidence –
(a) it was not clear when the tyre slashing incident occurred;
(b) it did not occur on the defendant’s premises;
(c) it did not occur while Ms Scibberas was living in the plaintiff’s Broadford house; and
(d) Ms Scibberas did not proffer an opinion that it was related to the incidents involving the plaintiff.
In the circumstances, I do not conclude that the tyre slashing incident was related to the other incidents the subject of evidence.
Ultimately, the plaintiff and her family moved from Broadford. The plaintiff gave evidence that she ‘didn’t feel safe’ and could not stay there by herself during the day.[58]
[58]T61-62.
The precise point at which the family moved away from Broadford was not clear in her evidence, although it was clear enough that it occurred in 2014 because in that year the plaintiff’s son had year 12 exams and did not move with the rest of the family.[59]
[59]The plaintiff’s son stayed with friends instead: T62.
Other evidence suggests that the plaintiff moved at some point between July and September 2014 –
(a) on 15 July 2014 Dr Athey recorded –
She stated that she believes that he [the perpetrator] has kept her house under surveillance. She will no longer drive her car as he may recognise it, and hates leaving home in case she is spotted away from home. She will leave home with her family. She informed me that in January 2014 bricks were thrown through her window, and she believes it was the same person who assaulted her.
She has lived in ongoing fear since then, [and] has been under psychiatric care from Dr Rao, her psychiatrist, who has treated her with a variety of medications, and because of severe symptoms in March 2014 gave her a course of ECT as the depression had taken over and she was unable to function. She stated that at that point in time she was suicidal.
She stated that she is planning to move home to a new location, and is planning to sell her car and get a new car so that it is less likely that she could be traced.[60]
(b) consistently with that evidence, the plaintiff’s workmate and friend, Melissa Scibberas, gave evidence that she moved into the plaintiff’s house in Broadford in September 2014 and that the plaintiff ‘may have left about a month prior to me actually moving in’.[61]
[60]Exhibit 23 (CB769-770).
[61]T308.
For completeness, I should note that the police investigation did not identify the perpetrator of the various incidents involving the plaintiff. Various fingerprint and DNA analyses were unavailing.[62] However, aspects of the records of the police investigation were emphasised by the parties in the course of the hearing.
[62]That seems to have included at least some degree of analysis in respect of, among others, Matthew Turner and Peter Wales: see, Exhibit 12 (p.16). Further, a fingerprint was obtained from the ‘Christmas box’, although that did not match the prints for Mr Wales kept in the police system. DLSC Grant confirmed, however, that the print on the ‘Christmas box’ may not have belonged to the offender: T365.
In particular, the Victoria Police ‘LEAP’ record of the incident on 27 March 2013 notes as follows –
BELL HAS BEEN ASSISTING WITH A FAMILY VIOLENCE INCIDENT INVOLVING AN AFM WISHING TO SEEK ASSISTANCE FOR AN ABUSIVE RELATIONSHIP SHE IS CURRENTLY IN. THIS FEMALE IS RELUCTANT TO PROVIDE DETAILS AND DOES NOT WISH TO SPEAK TO POLICE AS HER PARTNER IS ALLEGEDLY IN A MOTOR CYCLE GANG AND HAS THREATENED HER HARM IF SHE REPORTS HIM. ENQUIRIES ARE TO BE MADE WITH THIS INFORMATION. BELLS HANDLES NUMEROUS HIGH RISK CASES AND ALSO ATTENDS SEYMOUR MAGISTRATES’ COURT FOR FAMILY VIOLENCE MATTERS. BESIDES THE ABOVE INFORMATION BELL CANNOT THINK OF A PARTICULAR SUSPECT THEY MAY HAVE DONE THIS.[63]
[63]Exhibit 11 (p.3).
In the hearing, that potential suspect was referred to as ‘the bikie’.
It seems that on reflection the plaintiff came to put her suspicion in respect of ‘the bikie’ to one side. The ‘LEAP’ record notes that about a week after the incident the plaintiff told police that she had initially held that suspicion ‘simply because … [her client] … had detailed bikie connections’. The plaintiff informed police that she had had little to do with that client lately and that she had never had any contact with ‘the bikie’.[64]
[64]Exhibit 11 (pp.4-5).
At the same time, the plaintiff evidently told police that she had 17 clients and that she ‘really can’t say who might be likely to commit such an offence’. That said, the ‘LEAP’ record notes as follows –
SHE ALSO MENTIONED PETER WALES AS A POSSIBLE SUSPECT JUST BECAUSE SHE IS AWARE THAT HE CAN BE ERRATIC IN HIS BEHAVIOUR. NIL RECENT ISSUES. JUST TRYING TO ASSIST. REQUESTED THAT SHE PROVIDE A LIST OF HER CURRENT CLIENTS.[65]
[65]Exhibit 11 (p.4).
The plaintiff later provided a list of clients to police and the ‘Interpose’ shell records that ‘LEAP’ checks were completed and copies of the reports were said to be attached. The ‘Interpose’ shell records ‘there is no one male that stands out as a suspect amongst these files’.[66] The reports were not attached to the ‘Interpose’ shell received in evidence, and it is unclear whether those reports included reference to Peter Wales.
[66]Exhibit 12 (p.2).
In any event, the ‘Interpose’ shell thereafter notes as follows –
MATTHEW TURNER … LATER NOMINATED BY L/S/C D.J. KONNINGS AS A POSSIBLE SUSPECT. THIS WAS BASED ON THE FACT THAT HE HAS A CURRENT I/V ORDER AGAINST HIM THAT HE HAS BREACHED A NUMBER OF TIMES AND HAS A CLEAR DISREGARD FOR AUTHORITY.
TURNER WAS LATER ARRESTED BY KONNINGS AND INTERVIEWED FOR A NUMBER OF BREACHES OF I/V ORDER. HE WAS SPOKEN TO BY KONNINGS RE HIS INVOLVEMENT IN THIS INCIDENT AND DENIED ALL KNOWLEDGE OF SAME.[67]
[67]Ibid.
Immediately thereafter, the ‘Interpose’ shell refers to the letter received by the plaintiff on 10 May 2013. It follows that the interview of Mr Turner is likely to have occurred prior to that date.
There was a suggestion in the evidence of the plaintiff that Mr Turner had been interviewed by police as a consequence of words spoken at school by Mr Turner’s son to the plaintiff’s son to the effect that ‘my dad hurt your mum’ because ‘anyone that looks after my mum, my dad hurts’.[68]
[68]T57 and T118-119. See also, T90-91.
In oral evidence, the plaintiff referred to and later produced an email from her to Ms Miller of the defendant that corroborated her evidence concerning the incident involving her son. That email suggests that the discussion between the plaintiff’s son and Mr Turner’s son occurred on Wednesday, 17 April 2013 and that the plaintiff then reported that information to the investigating detective, DLSC Grant.[69]
[69]Exhibit A.
That said, in evidence, DLSC Grant was unsure whether the potential connection of Mr Turner to the incident had been brought up by the plaintiff or by one of the police members.[70]
[70]T360.
It is, of course, quite possible that the plaintiff’s suggestion is correct. However, the contemporaneous police records, which I prefer, do not include any reference to the event involving the plaintiff’s son and suggest that the impetus to interview Mr Turner emanated from LSC Konnings and seemingly for other reasons.[71]
[71]Cf., Fox v Percy (2003) 214 CLR 118, 129 [31].
Location checks were subsequently undertaken in respect of Mr Turner’s mobile phone. It seems that these checks were undertaken for ‘completeness’, but did not ‘take the matter any further’.[72]
[72]Exhibit 12 (pp.2-3).
In this connection, I note the evidence led from DLSC Grant to the effect that the location checks excluded Mr Turner from suspicion.[73] That evidence proceeded upon a misreading of the ‘Interpose’ shell,[74] which did not specifically state that Mr Turner was excluded from suspicion by reason of the results of location checks.
[73]T354-355.
[74]The misreading is introduced by the phrasing of the questions of counsel rather than any aspect of the answers provided by DLSC Grant. See also, T361-362.
In evidence, DLSC Grant confirmed that in the course of the police investigation none of ‘the bikie’, Mr Turner nor Mr Wales ever ‘met the threshold of suspect’. It was implicit that Mr Wales was never interviewed in connection with the incidents.[75]
[75]T363.
DLSC Grant confirmed that the investigation remained open and said that ‘nothing would delight me more … than to solve it’.[76]
[76]T355.
D Was Peter Wales the assailant in the incident on 27 March 2013?
As I have earlier noted, the plaintiff contended that, on the balance of probabilities, the assailant in the incident was Peter Wales. In particular, senior counsel for the plaintiff emphasised the evidence concerning the ‘true character of Peter Wales’ and his particular connections with the plaintiff.[77]
[77]T457.
By contrast, the defendant contended that no such conclusion could properly be reached. In that connection, senior counsel for the defendant emphasised the authorities directed to inferential reasoning and the need for the circumstances concerned to give rise to a ‘reasonable and definite inference’ and more than ‘conflicting inferences of equal degrees of probability’.[78]
[78]Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5.
Senior counsel for the defendant also emphasised the observations of Dixon J in Briginshaw v Briginshaw concerning the strength of evidence required in cases in which serious matters are sought to be proved.[79]
[79](1938) 60 CLR 336, 361-362.
That said, of course, in civil cases, such as the present, the standard of proof remains on the balance of probabilities, and care must be taken with generalisations. As Mason CJ, Brennan, Deane and Gaudron JJ observed in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd –
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.[80]
[80](1992) 110 ALR 449, 450. See also, GP Building Holdings Pty Ltd v Voitin [2022] VSCA 210, [81]-[91].
Further, the fact that a case is circumstantial or is to be established via a process of inferential reasoning should not be thought to mean that any different standard of proof should or does apply, or that a case of that kind is incapable of very firmly persuading a trier of fact.[81]
[81]Indeed, a case of that kind can persuade to the criminal standard – see, for example, R v Dawson [2022] NSWSC 1131 – and is regularly found by juries to do so.
Winneke P spoke to the necessary process of reasoning in Transport Industries Insurance Co Ltd v Longmuir.[82] In that connection, his Honour emphasised the potential potency of ‘all of the facts relied upon as a united whole’ and, in respect of the evidence in that particular case, stated –
… In the present case, even though the ultimate fact to be proved involved the commission of a criminal offence, the standard of proof which the learned judge was bound to apply “at the final stage of the process” was the civil standard. The application of that standard required him, at the end of the day, to determine whether the various facts and circumstances which he had found, or accepted, raised the inference, on the balance of probabilities, that the respondent had lit the fire. This is the standard of proof which applies in civil cases which depend for their proof upon circumstantial evidence. It is to be distinguished from the standard imposed in criminal cases where the Crown, in its quest to prove guilt beyond reasonable doubt, must, where it relies on circumstantial evidence, exclude all reasonable hypotheses consistent with innocence. (This distinction is discussed in Luxton v Vines (1955) 85 CLR 352 at 358 and Chamberlain v R (No.2), at 536 per Gibbs CJ, Mason J).
In cases like the present, where the trial judge is asked to draw an inference that a party to civil proceedings has committed a criminal offence, the civil standard of proof still applies. However it is necessary for the court to bear steadily in mind that the seriousness of the allegation will affect the clarity of proof which is required with regard to the evidentiary facts from which the inference is to be drawn.[83]
[82][1997] 1 VR 125 (‘Transport Industries’). See also, Masters Home Improvement Pty Ltd v Northeast Solution Pty Ltd (2017) 372 ALR 440, [100]-[102].
[83]Transport Industries (n 82) 129-130.
In this general connection, and against the contention that Mr Wales was the perpetrator in the incident, senior counsel for the defendant emphasised ’22 propositions’ said to arise out of the evidence,[84] namely that –
[84]T424-429.
(1) nobody knew in advance that the plaintiff had planned to stop at the doctor’s surgery on the way to work on the morning of 27 March 2013;
(2) Mr Wales lived in Seymour, which is half an hour’s drive away from Broadford;
(3) there was no evidence that the plaintiff was followed on her way to the surgery and no evidence that Mr or Mrs Wales knew where the plaintiff lived or what car she drove;
(4) the plaintiff did not see the perpetrator, and there were no witnesses;
(5) the plaintiff did not recognise the perpetrator’s voice, although she had previously spoken to Mr Wales and seen him give evidence in court;
(6) the plaintiff acknowledged in evidence that many men would have disliked her as a consequence of working with their wives and that she was recognisable to other men;
(7) Broadford is a ‘relatively small community’ and consequently there was ‘a comparatively high potential to encounter one or more of those men in the course of everyday life separately from her work’;
(8) the plaintiff accepted that she would have had ‘at least 120 clients during the period she worked for the defendant’ from which it was submitted that it was ‘just as likely to have been the partner or adult child, perhaps, of any of the clients who happened to be in the vicinity of the doctor’s surgery’;
(9) Ms Wearne had given evidence that there is always a perpetrator involved in family violence;
(10) the ‘LEAP’ records identified the plaintiff as having described the offender as large and very strong, and there was no evidence that Mr Wales is large or particularly strong;
(11) the ‘LEAP’ records indicate that the ‘first thing’ that the plaintiff mentioned to police was that the husband of one of her clients was a member of a motorcycle gang and she had not been able to think of ‘a particular suspect that might have done this’;
(12) the ‘LEAP’ records stated that the plaintiff had 17 clients and ‘really can’t say who might be likely to commit such an offence’;
(13) the ‘LEAP’ records identified the plaintiff as having mentioned Peter Wales ‘just because she is aware that he can be erratic’, although she had ‘nil recent issues with him’;
(14) police had considered that the incident might be related to the earlier incident involving Ms Albert, from which it was submitted that ‘it may have been committed by anyone who had a grudge against family violence outreach workers or social workers or employees of the defendant more generally’;
(15) the ‘LEAP’ records identified that a list of the plaintiff’s clients had been obtained and that there was ‘no one male that stood out as a suspect’;
(16) Mr Turner had been identified as a possible suspect and the plaintiff had given evidence that her son had been told by Mr Turner’s son that ‘my dad hurt your mum’;
(17) location searches did not show Mr Turner to have been a distance away at the time of the offending;
(18) DLSC Grant said that no-one was interviewed by police because no-one had met the threshold of being a suspect;
(19) practically all of the ‘120-plus clients’ of the plaintiff had been referred to the defendant by police as a consequence of family violence;
(20) the ‘Interpose shell’ suggested that the plaintiff had thought that a suspect in connection with the ‘Christmas box’ could be a neighbour who had verbally abused her on a previous occasion;
(21) a fingerprint obtained from the ‘Christmas box’ did not match Peter Wales or anyone on the list of the plaintiff’s clients; and
(22) the plaintiff accepted, it was submitted, the accuracy of the ‘history she gave to Dr Athey’.
Despite the overall number of propositions advanced, it will be evident that several arise from common foundations or themes and others very largely overlap.[85]
[85]In the latter regard, at least, on the one hand, propositions (9) and (19) and, on the other, propositions (12) and (15).
Many of the defendant’s propositions are expressly or implicitly premised in the general notion that as a family violence outreach worker in a small rural community, many men could have been motivated, and able, to harm the plaintiff.[86]
[86]Cf., T117.
In that connection, counsel for the defendant emphasised that the plaintiff was estimated to have had ‘120 clients’ over a period of about three years prior to 27 March 2013[87] and that she had said that all of her clients were ‘high risk’.[88] In that context, the defendant sought to implicate all participants in the defendant’s ‘Men’s Behavioural Change Program’ as having been potential assailants.[89]
[87]Cf., T95-96.
[88]T35.
[89]Particularly in the cross-examination of DLSC Grant (T356-358) and Ms Wearne (T397-398).
While the plaintiff at one point described all of her clients as ‘high risk’, it was apparent in the rest of her evidence that they were not all the same in terms of risk.[90]
[90]Indeed, when it was suggested that ‘there were lots of upset perpetrators that you dealt with’, the plaintiff replied ‘not like Mr Wales’: T90.
Further, the records relating to the plaintiff’s work indicate that the defendant’s service identified some clients as ‘low risk’.[91]
[91]Exhibit 1 (CB59).
In addition, the process of clinical supervision of the plaintiff specifically prompted the identification of ‘high risk clients’. In that connection, on 5 August 2010, the only ‘high risk client’ identified in the course of clinical supervision of the plaintiff was Mrs Wales.[92]
[92]Exhibit 1 (CB61).
In any event, in the period concerned, the defendant’s service must have had hundreds of clients. Each of those clients had a partner or perhaps other family members implicated in violence. It follows that hundreds of men must have participated in the defendant’s ‘Men’s Behavioural Change Program’.[93]
[93]The way in which men participated in this program was either by a self-referral or via a Court order made because their partner had an intervention order on foot against them: T397. The general flavour of the evidence was that there were many such men who participated in the program.
In that context, the defendant’s family violence outreach workers – including the plaintiff – must have been visiting the homes of clients, accompanying them to court and occasionally encountering the partners and other family members. In so doing, the only relevant security precaution afforded to the workers by the defendant was a mobile telephone and an ‘in and out board’.[94]
[94]T118. See also, the defendant’s Home Visiting/Outreach Work policies, particularly Exhibit 3 (CB262-273), and the Occupational Health and Safety Committee Meeting minutes dated 24 May 2012, Exhibit 4 (CB376). It might, perhaps, also be said that the defendant provided the Home Visit Safety Checklist to be completed by the workers (see, Exhibit 3 (CB286-297)) – although the status or effectiveness of that document as a ‘security precaution’ is probably debatable.
Yet, in the period concerned, there were only two incidents specifically directed to the family violence outreach workers: Ms Albert was mistakenly attacked in 2009 or 2010 and the plaintiff was attacked in March 2013. There was no other evidence of threatening behaviour in connection with the work of the family violence outreach workers.[95]
[95]I am conscious that the minutes of the meetings of the defendant’s occupational health and safety committee refer to several incidents of threatened or apprehended violence or verbal abuse prior to 27 March 2013, to which recorded incidents I later refer. However, those incidents do not seem to be clearly identified in the minutes as directed to any of the family violence outreach workers: see, Exhibit 4 (CB315-CB432).
Further, in respect of the attack on the plaintiff, there were only three identified persons of interest – one of whom was Mr Wales – and, as the defendant sought to emphasise, in the course of the police investigation it was recorded that there was ‘no one male that stands out as a suspect’.[96]
[96]Exhibit 12 (p.2).
The circumstances to which I have referred do not suggest that large numbers of partners or their associates or other family members were likely to attack a family violence outreach worker. Nor do they tend to support the broad insinuation that the ‘Men’s Behavioural Change Program’ was a seething hotbed of potential violence directed at the family violence outreach workers.
The circumstances of the incident concerning the plaintiff also do not tend to support any such generalised suggestions. In that regard, the assailant must plainly have known the plaintiff well enough to recognise her, and perhaps her vehicle, and also been sufficiently motivated to attack.
Further, the attack was for a directly disclosed and specific purpose: to warn the plaintiff to ‘stay away from my wife’, or the plaintiff would be killed. That does not suggest the involvement of some mercenary recruited via the ‘Men’s Behavioural Change Program’. It was a distinctly personal attack perpetrated in circumstances in which the face of the attacker could not be seen but the link between the plaintiff and the attacker’s ‘wife’ was plainly disclosed and the plaintiff must have been intended to reflect and dwell upon that connection and stay away from the wives of potential candidates upon fear of death.
It follows that the assailant was very likely someone whose wife was receiving support from the plaintiff at or about the time of the attack in March 2013; not some person whose wife had been assisted by the plaintiff up to three years earlier.
In respect of such persons, of course, a client list was obtained, but only three persons were ever identified as ‘persons of interest’: ‘the bikie’, Mr Turner and Mr Wales. I note that the name of ‘the bikie’ was evidently not on the client list.[97]
[97]Exhibit 12 (p.16).
The police investigation – and associated evidence of the plaintiff and DLSC Grant – were the foundation for many of the defendant’s propositions.[98] In that regard, via the evidence of DLSC Grant, the defendant again sought to emphasise the generalised nature of the risk faced by the plaintiff.
[98]Particularly, propositions (10), (11), (12), (13), (14), (15), (16), (17), (18), (20) and (21).
While DLSC Grant acknowledged that risk,[99] I am conscious that she was subpoenaed to give evidence at short notice, was giving evidence concerning an investigation that had taken place many years before and in respect of which she freely described her recollection as ‘rusty’, and that she had evidently not had the opportunity to examine the police records prior to giving evidence.[100]
[99]T368.
[100]The proceeding was stood down to allow DLSC Grant to review the police records: T345-348.
Further, and in the circumstances quite understandably, there were elements of the evidence of DLSC Grant that skated over and did not engage with the details of the investigation evident in the relevant records. In particular, DLSC Grant gave evidence that no-one had been interviewed in connection with the offending,[101] albeit that the ‘LEAP’ record discloses that Mr Turner was arrested and interviewed by LSC Konnings.[102]
[101]T363.
[102]Exhibit 11 (p.4). In evidence, the plaintiff said that Mr Wales was also interviewed by police (T57), however that is not reflected in the records relating to the investigation and, of course, the evidence of DLSC Grant was to the contrary. I do not accept that Mr Wales was interviewed during the police investigation.
Even so, it was plain in her evidence that DLSC Grant acknowledged the potential for Mr Wales to have been the assailant. She described him as ‘angry’, ‘very aggressive’ and said that he ‘took issue’ with people ‘being involved in his relationship’.[103]
[103]T368-369.
In that sense, the evidence of DLSC Grant was consistent with –
(a) the evidence of Mrs Wales concerning Mr Wales’ anger and propensity for violence;[104] and
[104]T276, T278, T280-281 and T284.
(b) the evidence of the plaintiff that –
(i) Mr Wales was physically abusive and would sexually assault and threaten to kill Mrs Wales;[105]
[105]T35-36.
(ii) Mrs Wales had reported to the plaintiff that Mr Wales had said that he was going to ‘”f” me and kill me [the plaintiff] and sort me out the way he’d sorted her [Mrs Wales] out’;[106]
[106]T89 and T111-112. See also, T48.
(iii) Mr Wales had focussed his anger upon Mrs Wales and the plaintiff;[107]
[107]T49.
(iv) Mr Wales would stare at the plaintiff and make snide remarks;[108]
[108]T55.
(v) while she could come into contact with perpetrators on other files, such contact was ‘not as extensive’ as in respect of the Wales file;[109]
[109]T77-78.
(vi) Mr Wales was ‘an angry man’ and the plaintiff ‘was scared of him’ and ‘didn’t make eye contact with him’;[110] and
[110]T118. See also, T57.
(vii) as to whether Mr Wales was the assailant –
I believe that he was the perpetrator due to the – the ongoing, um, harassment from Mr Wales. However, at the end of the day, I – I don’t know if I should answer this way. Tell me to stop or whatever, but, regardless, I’m not a magician and I don’t – I can’t say, yes, it was Mr Wales. I’m not, you know – but to my understanding, he would be the likely person. … So I – I sure, I think it was Mr Wales due to his disliking to me, but I’m sure that as [Dr Rao] said yesterday, there were many men that would have disliked me within that organisation. I worked with their wives. So, to me, yes, it could have been somebody else but nobody else had made threats to me other than Mr Wales. …[111]
[111]T116-117.
Notwithstanding the above, I have earlier referred to aspects of the police records from which many of the defendant’s ‘propositions’ are derived. In my view, those records are telling, but not merely in the manner sought to be suggested via the propositions sought to be drawn from them by the defendant. In my view, consideration of those records in context informs a more complete understanding of the police investigation well beyond the propositions sought to be advanced by the defendant.
In that regard –
(a) it is evident that ‘the bikie’ was nominated by the plaintiff to police on the day of the incident, at which time she could not think of a particular suspect that may have been responsible for the incident, although she is recorded as having reflected that ‘the offender must have known her and her personal car’;[112]
[112]Exhibit 11 (p.3).
(b) in light of the terror of that day, it is hardly surprising that the plaintiff might have later come to countermand that nomination and propose another name;
(c) further, as I have earlier observed, later reflection by the plaintiff of the kind apparent in the ‘LEAP’ record was the very kind of thing that the attack – and the words spoken during the course of it – were calculated to provoke;
(d) upon such later reflection, the plaintiff is recorded as having told police that she had had little to do with ‘the bikie’s’ partner ‘of late’ and that she had ‘never had any contact’ with ‘the bikie’;[113]
[113]Exhibit 11 (p.4).
(e) in those circumstances, it is hardly surprising that ‘the bikie’ did not feature in later records of the investigation and, as I have noted, the name of ‘the bikie’ did not appear on the list of names later provided by the plaintiff to police;
(f) in the circumstances, it is unlikely that ‘the bikie’ could have been the assailant;
(g) at the same time, the plaintiff nominated Mr Wales as a ‘possible suspect’, albeit that she is also recorded as having said, in substance, that there had been ‘nil recent issues’;[114]
[114]Ibid. Having seen the plaintiff give evidence, I pause to doubt that she would have used the words ‘nil recent issues’ when dealing with police. The noted words are likely to be an interpretation by one of the police officers of what they understood the plaintiff to have been saying.
(h) again, in light of that qualification, it is not surprising that Mr Wales did not come to be interviewed nor feature with any particular prominence in the later records of the investigation;
(i) as I have earlier noted, Mr Turner was nominated by LSC Konnings as a ‘possible suspect’ on the basis that he had breached an intervention order on a number of occasions and had ‘a clear disregard for authority’;[115]
[115]Exhibit 11 (p.4).
(j) no part of that basis related to any direct connection between the plaintiff and Mr Turner – or could suggest that Mr Turner knew the plaintiff or her personal car;[116]
[116]The same may be said of the information said to have come from Mr Turner’s son. That was based upon an assessment by the son of the general character of Mr Turner – not upon any particular knowledge of any direct connection between Mr Turner and the plaintiff.
(k) in any event, LSC Konnings is recorded as having arrested and interviewed Mr Turner – who ‘denied all knowledge’ of the incident;[117]
[117]Exhibit 11 (p.4).
(l) location checks were then undertaken in respect of Mr Turner for ‘completeness’ and did not provide any information that would implicate him;[118]
[118]Exhibit 11 (p.5) and Exhibit 12 (pp.2-3).
(m) in circumstances in which LSC Konnings evidently had the benefit of interviewing Mr Turner and also conducted location checks for completeness, it does not seem likely that investigating police considered Mr Turner to have been likely to have been the assailant;
(n) consistently with that position, Mr Turner did not later feature with any particular prominence in the records of the police investigation;
(o) for those reasons, I do not consider it to have been likely that Mr Turner could have been the assailant;
(p) beyond that, the focus of investigating police seems to have fallen upon the possibility that either a fingerprint or DNA sample might come to implicate someone in the offending;
(q) that process did not provide information that implicated any identified person, including Mr Turner and Mr Wales, and, as DLSC Grant observed, the fingerprint that was identified might not have been that of the offender;[119]
(r) finally, it was suggested that the ‘neighbour’ could have been responsible for the ‘Christmas box’,[120] however I have earlier indicated that I do not consider that to be at all likely.
[119]T365.
[120]Exhibit 12 (p.7).
The records to which I have referred suggest that for different reasons each of ‘the bikie’, Mr Turner and Mr Wales faded from any prominence during the course of the police investigation.
In respect of ‘the bikie’ – who was not the subject of any oral evidence of the plaintiff because he came to be referred to later when the police records were produced by DLSC Grant – the defendant did not seek that the plaintiff be recalled for cross-examination.
In respect of Mr Turner, the fade from prominence evident in the police records was consistent with the evidence of the plaintiff: she had not had any contact with Mr Turner, or been bothered by him and did not feel at any risk in respect of him.[121]
[121]T57 and T90.
Importantly, there was no evidence of any threats to the plaintiff having emanated from either ‘the bikie’ or Mr Turner prior to the incident.
By contrast, the evidence of the plaintiff at trial was contrary to the notation in the police records that, at the time of the incident, she had had ‘nil recent issues’ with Mr Wales.
In that connection, I have already referred to aspects of the evidence concerning Mr Wales’ familiarity with, and antipathy towards, the plaintiff. In addition, and importantly, the plaintiff gave evidence that in the period prior to the incident on 27 March 2013 –
(a) the plaintiff had ‘dozens’ of dealings with Mr Wales;[122]
[122]T45-46. See also, T52.
(b) Mr Wales had contacted the plaintiff in her workplace;[123]
[123]Exhibit 1 (CB61). See also, T34.
(c) Mr Wales had complained to police about the plaintiff and caused police to attend and interview her in the workplace – which she found ‘humiliating’;[124]
[124]T48 and T57.
(d) in August 2012, Mr Wales had become ‘extremely aggressive’ and ‘angry’ after a court hearing at which he had been ordered to pay the costs of Mrs Wales and court security had then had to escort the plaintiff and Mrs Wales as they left;[125]
(e) Mr Wales had attended the plaintiff’s workplace ‘ranting and raving in the foyer that he wanted to see Tracey Bell’s boss’ and the plaintiff;[126] and
(f) on 12 March 2013, Mr Wales had delivered a letter to the defendant complaining about the plaintiff in which ‘several untrue allegations’ were made.[127]
[125]T49.
[126]T45.
[127]T45-46, 55 and 83. See also, Exhibit 2 (CB85).
In short, although the police records noted ‘nil recent issues’ as between the plaintiff and Mr Wales, the evidence of the plaintiff (which I accept) established that, in fact, prior to 27 March 2013 –
(a) there had been ongoing contact between the plaintiff and Mr Wales including instances of his anger and aggression directed towards her over a long period of time;
(b) the plaintiff was, by that time, scared of Mr Wales and avoided eye contact with him; and
(c) shortly prior to the incident on 27 March 2013, Mr Wales had attended the plaintiff’s workplace ‘ranting and raving’ and thereafter made a written complaint about her to her employer.
It follows that there were powerful elements of connection between the plaintiff and Mr Wales prior to the incident on 27 March 2013 that, for whatever reason, had not come to the attention of investigating police. Indeed, it seems more likely than not that the notation ‘nil recent issues’ had caused any examination of those connections to be overlooked.
I note that in addition to the general themes and sources to which I have referred, the defendant advanced further ‘propositions’ directed to matters such as that there was no direct evidence that Mr Wales was ‘large and strong’, or that he knew where the plaintiff lived or what car she drove, that the plaintiff did not recognise the voice of her attacker, the history said to have been given by the plaintiff to Dr Athey, that Mr Wales lived in Seymour and the fact that Broadford was a small community in which there was said to be a ‘comparatively high potential to encounter one or more of those men in the course of everyday life’.[128]
[128]That is, propositions (2), (3), (5), (7), (10) and (22) above.
In my view, however, the evidence amply established that –
(a) whatever might be said to have been Mr Wales’ precise size and strength, he had attacked Mrs Wales and exhibited anger and aggression towards the plaintiff over a significant period of time and particularly shortly prior to the incident on 27 March 2013;
(b) thus, Mr Wales’ demeanour combined with potential motivation and opportunities over a long period of time seem sufficient for him to have been able to have acquired knowledge of where the plaintiff lived and what car she drove if he was inclined to do so;
(c) in that regard, the plaintiff had clients in Broadford, Wallan and Seymour in respect of whom it was not suggested that any particular location within the area stood as a significant barrier to any man motivated to attack the plaintiff in Broadford at 8am on 27 March 2013;[129] and
(d) further, Mr Wales was a member of the very same community in respect of which the defendant sought broadly to suggest that any man aggrieved by the plaintiff’s work could readily have encountered and attacked her.
[129]In fact, the contrary was suggested and acknowledged: T96-97.
Further, while the plaintiff had spoken with Mr Wales prior to the incident, she gave convincing evidence as how it could be that she might not recognise a familiar voice in the terror of the moment of attack.[130]
[130]T94.
In addition, and for completeness, I have already explained that I do not accept that in the course of the incident the assailant said to the plaintiff that he had not been allowed to see his children because of her work.
It will be evident from the discussion to this point that, in my view, the position revealed by the whole of the evidence is considerably more complex than the form of the defendant’s ’22 propositions’ would tend to suggest. Indeed, by reference to the unified force of the evidence to which I have already referred, I am reasonably satisfied that Mr Wales was the assailant in the incident on 27 March 2013.
That conclusion is reinforced by a consideration of the ‘SHIP notes’ relating to Mrs Wales. In that regard –
(a) in the period 2010 to 2012, the plaintiff supported Mrs Wales on a considerable number of occasions;[131]
[131]Exhibit 2 (CB89-135).
(b) in that connection, on 27 October 2011, Mrs Wales reported that she had been sexually assaulted by Mr Wales – which I accept to have been the occasion of rape throughout the night of which the plaintiff and Mrs Wales gave evidence;[132]
[132]Exhibit 2 (CB115-116). Cf., T84-88 and T281.
(c) late in 2012, Mr Wales had enjoyed two successful court appearances against his wife;[133]
[133]Exhibit 2 (CB89).
(d) Mr Wales then applied to discharge the intervention order in place against him, which hearing was to take place on 31 January 2013 and in respect of which Mrs Wales requested court support;[134]
[134]Exhibit 2 (CB87-88).
(e) the plaintiff supported Mrs Wales at the hearing on 31 January 2013 and a note was apparently made on the court file to the effect that Mr Wales was ‘basically wasting the court’s time’ and his case was dismissed with the Magistrate having told Mr Wales that ‘he is no[w] just being difficult’;[135]
[135]Exhibit 2 (CB86).
(f) by 5 March 2013, Mrs Wales had received another summons to return to court and the plaintiff met with her in the course of which Mrs Wales is recorded as having informed the plaintiff that she did not know what was going to ‘come up next’ and, in particular –
There is a pattern of the behaviour that Peter is displaying, as he keeps taking her back to court. Di feels that he is trying to get her into trouble. Di made comment that he will not let her be and he will continue on until someone is hurt or she is dead. Di stated that she has expressed her concerns to the Seymour police, however they will not listen.[136]
[136]Exhibit 2 (CB85).
[Emphasis added]
(g) on 12 March 2013, Mr Wales came to the defendant’s premises and lodged the letter of complaint concerning the plaintiff that was recorded as having contained ‘several untrue allegations’ against her;[137]
[137]Ibid.
(h) on 27 March 2013, the plaintiff was attacked and, as I have earlier noted, specifically warned to ‘stay away from my wife’ and not to ‘contact her again or I’ll fucking kill you’;
(i) the hearing concerning the intervention order took place on 4 April 2013, albeit that it was then adjourned to 2 May 2013 and later adjourned to 30 May 2013;[138]
[138]Exhibit 2 (CB84).
(j) in that context, the threatening letter was received at the plaintiff’s home on 10 May 2013;
(k) by 5 June 2013 it is recorded – seemingly by Ayfer Berdilek – that Mrs Wales had been told that her case ‘will be closed’, albeit that she was ‘welcome to come back to the agency for further support as needed’;[139]
[139]Exhibit 2 (CB83).
(l) in fact, no support is recorded as having been provided to Mrs Wales between that time and 9 January 2014, at which time Mrs Wales is recorded as having sought a statement from the defendant ‘regarding Peter’s harassment in your office’;[140]
[140]Exhibit 2 (CB82-83).
(m) shortly prior to that time, the plaintiff had received the ‘Christmas box’ at her home and Mrs Wales’ contact with the defendant’s service to which I have referred must have occurred at about the same time at which the brick was thrown through the window of the plaintiff’s home;
(n) on 30 January 2014, Mrs Wales was advised that ‘management would not be providing a reference regarding the incident involving Peter’;[141]
(o) on 14 February 2014, support was provided to Mrs Wales by the defendant’s service at a court hearing at which the intervention order against Mr Wales was revoked, and Mrs Wales is recorded as having no longer requested support from the defendant and her support period was recorded as having been ‘closed’;[142] and
(p) there was no subsequent attack upon the plaintiff and, as I have earlier noted, the plaintiff moved away from Broadford somewhere between July and September 2014.
[141]Exhibit 2 (CB79).
[142]Exhibit 2 (CB78).
In my view, there is a general and striking correlation in the dates and events identified. In particular, it is evident that, with the plaintiff’s support, Mrs Wales had enjoyed success against Mr Wales in early 2013 – particularly, fending off his attempt to discharge the intervention order put in place to protect her and in respect of which the Magistrate dismissed the application and it was recorded that Mr Wales was wasting the Court’s time.
Mr Wales then sought to bring Mrs Wales back to court again and his sense of anger and the risk of retribution is evident in the record of 5 March 2013 to the effect that Mr Wales would continue ‘until someone is hurt or she [Mrs Wales] is dead’.
At about that time, Mr Wales attended the defendant’s office ‘ranting and raving’ about the plaintiff, and, in any event, on 12 March 2013, Mr Wales delivered a letter of complaint about the plaintiff.
Shortly thereafter, on 27 March 2013, and very shortly before Mrs Wales was due to return to court supported by the plaintiff, the plaintiff was attacked.
In that context, it seems to me to be of significance that there is no suggestion in the records that the defendant ever responded to Mr Wales’ letter of complaint and also no suggestion that Mr Wales ever followed it up. That silence is consistent with him having taken matters into his own hands.
After the plaintiff ceased being able to assist Mrs Wales, there was a general attenuation in the support seemingly provided to Mrs Wales by the defendant’s service. The reasons for that may have been to some degree bilateral – including that Mrs Wales’ staunch supporter, namely the plaintiff, had been removed from the picture making Mrs Wales less inclined to call upon the service for support. However, there does seem to have been a greatly reduced number of contacts recorded, as well as a tone of scepticism, if not reluctance, in some of the ‘SHIP notes’ recorded after the plaintiff ceased being able to assist Mrs Wales.
There is, however, no evidence that Mrs Wales knew that the plaintiff would never return to assist her in her dealings with Mr Wales, and the ‘SHIP notes’ do show that Mrs Wales continued to have some contact with the defendant’s service after 27 March 2013, albeit much less than before.
In that context, it is evident that Mr Wales continued in his endeavours against Mrs Wales in court, particularly in respect of the discharge of the intervention order.
In that regard, it seems to me to be of some significance that –
(a) the threatening letter received by the plaintiff on 10 May 2013 shortly preceded an appointed court date on 30 May 2013;
(b) the delivery of the ‘Christmas box’ shortly preceded, and the brick incident seems to have been at about the same time as, Mrs Wales’ approaches to the defendant’s service seeking support in the nature of a reference about Mr Wales’ harassment (which was declined); and
(c) the final support provided to Mrs Wales by the defendant’s service was on 14 February 2014, when Mr Wales finally achieved his objective of having the intervention order discharged.
After that date, as I have noted, no further threats were received by the plaintiff, albeit that she continued to live at her home in Broadford for something like another six months until moving away from the area.
In my view, these matters reinforce the conclusion that Mr Wales was likely to have been the assailant on 27 March 2013. Indeed, in my view, those matters support the allied conclusion that Mr Wales was also likely to have been responsible for the subsequent threats received by the plaintiff and the attack upon her home with a brick.
It will be evident that the oral evidence to which I have referred is broadly consistent with the state of the relevant documentary material.
In short –
(a) there was a real risk of violence faced by the family violence outreach workers as a consequence of their duties;
(b) those duties took the workers off the defendant’s premises and into the community;[220]
[220]Exhibit 6 (CB548).
(c) the workers realistically faced that risk wherever they went in the local area, although it was obviously likely to be more palpable and immediate when they were exposed to a perpetrator or in a place where they might be exposed to a perpetrator, such as in the homes of clients, when attending courts and when travelling to and from such locations;
(d) the nature and extent of that risk was or should have been known to the defendant;
(e) the defendant partially responded to the risk by, for example, taking some security measures at its premises, implementing policies and procedures, training staff and providing the workers with a mobile phone; and
(f) the defendant also sought to address the risk via a process of formal supervision, management and coordination of the workers whereby particular risks might be detected and, where necessary, the file concerned re-allocated.
Classically, the latter element of the system to which I have referred reasonably sought to respond to the risk arising from the work by allowing for particular risks to be identified and then controlling or directing the employee concerned in order to avoid the particular risk.
In that sense, despite the defendant’s emphasis in address upon the ‘uncontrollable’ criminality of the ‘third party’ assailant in the incident involving the plaintiff, the defendant’s system sought to control particular risks, where arising,[221] via a system of supervision and management that anticipated and identified such risks and could result in the file being re-allocated and the workers being directed accordingly. It was, as Hayne J observed in Modbury, not a duty to control the conduct of others, but a duty to provide a safe system of work and to manage and direct the workers.
[221]Which risk was identifiable and related to the work, and so not unknowable or random.
Plainly, as I have sought to explain, such a duty was owed to the plaintiff by the defendant in all of the circumstances. Indeed, the steps taken by the defendant seem to me to have both assumed that duty and to have sought to design a system of work that could anticipate and avoid any such risk.
That said, it will be evident that the evidence disclosed that – at least in respect of the plaintiff – the system did not operate in the manner in which it was designed. In particular –
(a) the plaintiff did not have weekly formal supervision meetings;
(b) further, it seems more likely than not that the plaintiff did not have any such supervision in the period of more than two years prior to 27 March 2013;
(c) the plaintiff did report the threats posed to her by Mr Wales as early as October 2011, and thereafter;
(d) however, the nature of the threat posed by Mr Wales was permitted to become a ‘running joke’ and so was broadly diminished and certainly not acted upon;
(e) indeed, there is no suggestion in the evidence that any such risk was ever seriously engaged with nor assessed by any coordinator or manager, or that any consideration was ever given to re-allocating the Wales file;
(f) in my view, owing to the seriousness of the risk presented by Mr Wales evident in the nature of his behaviour and the threats made by him concerning the plaintiff, namely that he would ‘F’ and ‘kill’ her, it seems to me to be inevitable that if such a risk had been properly considered by such a coordinator or manager, the Wales file would have been re-allocated away from the plaintiff as early as October 2011; and
(g) indeed, the evidence of Ms Wearne supports the view that serious consideration should be given to taking such a step for much less than the making of threats of the kind made against the plaintiff by Mr Wales.
In the circumstances, in my view, the defendant breached the duty of care which it owed to the plaintiff by failing to enforce the system of work which it designed but did not properly enforce. On the evidence, that breach seems first to have occurred in October 2011, after the plaintiff reported the specific threats made against her by Mr Wales, and continued thereafter as such incidents and specific threats continued to be reported but were not acted upon by the defendant.
The final liability issue is causation. In that connection, the defendant essentially submitted that the plaintiff’s injury could not have been averted.[222] In that regard, the defendant sought to emphasise several considerations that have already been addressed above (and rejected). Particularly –
[222]Cf., Munday v St Vincent’s Hospital [2021] VSCA 170, [22]-[23]. See also, March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 514.
(a) that it could not be concluded, on the balance of probabilities, that Mr Wales was the assailant;
(b) even if it could be concluded that Mr Wales was the assailant, no relevant duty of care arose because ‘it’s outside work’ and ‘the defendant had no control over the acts of Mr Wales’; and
(c) there was said to be no evidence concerning what system of work should have been implemented by the defendant.
In the end, it was submitted that even if the plaintiff had been taken off the Wales file, ‘it’s just a matter of speculation as to whether the assault might have happened or not’.[223] In that regard, the defendant referred to the fact that the plaintiff had continued to be ‘harassed’ and her home attacked nearly a year after the initial assault in March 2013 and therefore long after she ceased to support Mrs Wales.[224]
[223]T444.
[224]T479-481.
In some respects those submissions were directed to considerations referred to in Modbury – such as the ‘randomness and unpredictability’ of criminality – as well as aspects of the reasons of the plurality in Adeels Palace.[225]
[225]Adeels Palace (n 152).
I have earlier referred to the events which occurred after the incident and explained why it is that I consider it to be more likely than not that those events were perpetrated by Mr Wales.
Part of that reasoning, as I have indicated, is based on Mr Wales’ evident motivation to keep the plaintiff from providing regular and intensive support to Mrs Wales while he was seeking to achieve his objective of having her intervention order removed (which he ultimately achieved, shortly after the last of the attacks upon the plaintiff).
In my view, that is sufficient to explain why it is that I do not consider those later events properly to be characterised as having been either random or unpredictable.
Much the same may be said of the events prior to the assault; again for reasons earlier identified.
In that regard, it is evident that Mr Wales started making threats in respect of the plaintiff in about October 2011. However, it seems that Mr Wales’ anger and animosity in respect of the plaintiff intensified in late 2012 and certainly January 2013 when he suffered a significant court reversal.
In that connection, the evidence revealed that Mr Wales had set about seeking to remove the intervention order in place against him, in respect to which Mrs Wales again sought the support of the plaintiff. It is in that setting, that it is recorded that -
(a) Mr Wales’ application was dismissed and a note was placed on the court file recording that Mr Wales was ‘basically wasting the court’s time’;[226]
(b) Mrs Wales later reported that she feared that Mr Wales would ‘continue on until someone is hurt or she is dead’;[227] and
(c) Mr Wales attended the defendant’s premises with a specific letter of complaint concerning the plaintiff on 12 March 2013.[228]
[226]Exhibit 2 (CB86).
[227]Exhibit 2 (CB85).
[228]T45-46, T55 and T83. See also, Exhibit 2 (CB85).
As I have earlier noted, it was shortly after that attendance, and prior to his next court appearance, that Mr Wales attacked the plaintiff.
In the circumstances, I do not consider it to be speculative to conclude that it was the quality and intensity of the events in the period in and after about January 2013 – and Mr Wales’ associated anger and aggression – that ultimately propelled him to attack the plaintiff.
Prior to that time, there was a long period of time in which, while Mr Wales was issuing threats to the plaintiff, it is not evident that the plaintiff was as scared of Mr Wales as she later became and, more particularly, it was not then reported nor recorded that Mrs Wales was concerned that ‘someone’ other than herself may well be hurt. The obvious ‘someone’ was the plaintiff – and that report was made on 5 March 2013, shortly prior to the attack on 27 March 2013.
In these circumstances, conscious that causation is, in the end, an inference of fact, I consider the circumstances in which the plaintiff came to be attacked by Mr Wales to be quite explicable. Further, the intensity of those circumstances do not seem to have increased until at least late 2012 and certainly January 2013.
As I have noted, Mr Wales was issuing threats in respect of the plaintiff on and from October 2011. Those threats were reported to the defendant and should have seen the file re-allocated. If that had occurred in October 2011, it seems to me to be common sense, in light of the circumstances to which I have referred, that Mr Wales would not have come to attack the plaintiff much later and on 27 March 2013.
Indeed, in my view, it is most likely that if the file had been re-allocated at any time before the intensification of events in and following January 2013, the plaintiff would not have been attacked.
In addition, it may well be that the significant date in the sequence is 12 March 2013, when Mr Wales attended the defendant’s premises with the letter of complaint concerning the plaintiff that was delivered to Ms Miller.[229] It is not evident that anything was done by the defendant in respect of that letter, other than for Ms Miller to meet with the plaintiff.
[229]Exhibit 2 (CB85).
In any event, despite the letter of complaint, from Mr Wales’ perspective nothing appears to have changed: the plaintiff remained on the file assisting Mrs Wales and another court date sought by Mr Wales was approaching. In those circumstances, it could well have been that re-allocation of the file away from the plaintiff in response to the letter of complaint on 12 March 2013 would have avoided the attack. That said, I need ultimately make no final finding to that effect.
In the circumstances, it is presently sufficient for me to state that I am satisfied that the defendant’s breach of duty owed to the plaintiff on and after October 2011 was a cause of the plaintiff’s injury, loss and damage, and if the plaintiff had been re-allocated away from the Wales file at any time after October 2011 and prior to January 2013 – which she should have been – it is more likely than not that the incident would have been avoided.
F Assessment of damages
In the end, as I have earlier noted, the issues in respect of an assessment of damages were quite limited.
I have earlier noted that the defendant very properly accepted that the evidence supported the view that the assault on 27 March 2013 had caused the plaintiff to suffer a post-traumatic stress disorder and that she has consequently had no capacity for work. It was also acknowledged that the assault ‘destroyed’ the plaintiff’s life.[230]
[230]T422.
I say that the defendant’s concession was very properly made because that – and more – was the effect of the oral evidence given by the plaintiff, her husband and her treating psychiatrist of nearly ten years, Associate Professor Rao.
In that connection, the plaintiff gave dignified evidence concerning the effect of the attack upon her –
… I put it like this, that I functioned well, but – I raised my children very well. I had great work ethics, and I know you asked about my prior history and childhood and stuff like that – I put it to the point where, when that happened that day, what happened to me, it was like a wall was pulled down that had been up there for a long time and I just functioned and did the best I could. And I think I did it quite well. But, that particular day has destroyed my life. And it may seem simple to some, but it was very traumatic for me.[231]
[231]T64-65.
The plaintiff’s husband said that the plaintiff had withdrawn herself as ‘she knows she’s safe there and it’s – sometimes [it] can be hard to get out’.[232]
[232]T191.
For his part, Associate Professor Rao gave evidence that –
So this particular incident, ah – ah, unearthed a whole lot of the, ah, the previous trauma experiences that she had had in her life, right from her childhood. Um, it had a very devastating effect. Ah, after that, she was never the same.[233]
[233]T129.
Associate Professor Rao also said –
… it had a significant impact on her interpersonal relationships. Ah, she was not able to have, ah, successful marital relationship with her husband; ah, she was not able to relate to her children and provide the kind of care she was capable of providing; and, ah, she could not go back to work, and she could not get back to any gainful employment; um, and she also, ah – she was housebound for most of the time. And any other trauma events or any – any events which reminded her of trauma later on, she would have a – a significant reaction, psychological reaction, and, ah, she would have panic attacks, anxiety attacks, or she would go into states where she would dissociate and she could not, ah, be around. Her functioning capacity, ah, reduced very significantly after 2013. Um, and it has had a devastating effect on her – on her life and on – on her entire family’s life. Because I met all her children, her husband on numerous occasions, your Honour.[234]
[234]T134.
In respect of the plaintiff’s evidence that a ‘wall’ had been pulled down for her by the incident, Associate Professor Rao said ‘that would be a very apt description’.[235]
[235]Ibid.
A body of further documentary medical evidence was received.[236] Save that it included reference to the plaintiff having pain since the assault and ‘widespread pains everywhere’ attributed to a fibromyalgia syndrome,[237] the body of reports and other material did not otherwise alter the complexion of that to which I have referred. I have read and had regard to that further material.
[236]Exhibits 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 28.
[237]Exhibit 28.
The evidence to which I have referred amply supports the submissions directed to the degree of severity of the plaintiff’s psychiatric injury, the chronicity of her symptoms, the destruction of her quality of life and the ‘complete and total destruction of her work capacity’.[238]
[238]T474.
In that overall context, senior counsel for the defendant submitted that –
(a) the plaintiff had a pre-existing vulnerability to PTSD;[239]
[239]T422.
(b) the plaintiff ‘gave evidence that she would have kept working until the age of 60’ and, it was submitted, there was a chance that she would not have worked to that age;[240]
[240]T448.
(c) consequently, any award of damages should be discounted for the past by 20% and for the future by 40%;[241]
[241]T449. The precise reasons for the magnitude of the differential as between the past and future were unexplained.
(d) the approach adopted by the plaintiff’s forensic accountant, Mr Allan, in respect of superannuation, would result in double counting;[242]
[242]T449-450.
(e) the plaintiff did not give evidence that she would have continued in work that would have entitled her to ‘salary sacrifice’ and there was ‘no reason … to assume that the plaintiff would have remained employed by an FBT exempt entity or that FBT exemption would remain available’;[243]
(f) more broadly, any damages for loss of earning capacity should be assessed not by reference to the evidence of Mr Allan, but by reference to the plaintiff’s list of special damages;[244] and
(g) the range of general damages ‘would be in the region of $200,000 to $225,000’.[245]
[243]T451. In this general connection, in address, senior counsel for the defendant handed up and sought to place some reliance upon an ‘aide memoire’ apparently published by the Australian Taxation Office and entitled ‘Fringe Benefits Tax – a guide for employers’.
[244]T449-451.
[245]T453.
By contrast, senior counsel for the plaintiff submitted that –
(a) other evidence supported the view that absent the assault, the plaintiff’s psychiatric condition would not have achieved the subsequent degree of severity;[246]
[246]T470.
(b) regard should be had to the fact that the age of 60 is ‘well below the normal retirement age nowadays’;[247]
(c) the plaintiff was content to adopt the approach involving the 6% multiplier and the defendant called no evidence contrary to that of Mr Allan;[248] and
(d) general damages should be awarded in the sum of $500,000.[249]
[247]T474.
[248]T475-476.
[249]T474.
It will be evident that there was a degree of overlap in some of the points made, and I will endeavour to address them accordingly.
Notwithstanding the manner in which the plaintiff’s evidence concerning her intended age of retirement absent injury came to be referred to in the submissions of both counsel, it was actually expressed in the following terms –
60 – I don’t know, I can’t tell you that.[250]
[250]T75.
In that regard, her evidence reflects the fact that evidence of that kind is almost invariably no better than a rough estimate about hypothetical conduct well into the future.
Immediately prior to that, the plaintiff gave evidence that she would have worked ‘till I retired’ and otherwise said –
I think I would have studied further. I would have gone beyond … the family violence area, had I [been] given the opportunity. The type of industry that I worked in is community health so it’s very much so inhouse. It’s quite easy – you have to be capable but it’s easier to go higher in the ladder rather than – you know, they prefer to have people that have worked there for a long time. You don’t necessarily have to have the huge skill but – yeah.[251]
[251]Ibid.
It was plain that the plaintiff found her work enjoyable and meaningful. She had become certified in order to better equip her to do it, and had ambitions to progress.
Other evidence, to which I have earlier referred, identified her as having been ‘well liked’ by clients and staff as well as a ‘good team member’.[252]
[252]Exhibit 1 (CB77).
The documentary evidence also included a signed statement of Ms Miller dated 17 November 2014, which included the following –
Tracey is still employed by Nexus Primary Health and if it were not for this alleged injury, her position would be secure. She was not the subject of any disciplinary action and we were not planning any redundancies that would have affected her employment.[253]
[253]Exhibit 6 (CB548).
In the circumstances, I consider it to be likely that the plaintiff would have continued to work in the area of community health and may even have worked more days or hours[254] or in more highly paid positions as the years progressed.
[254]At the time of injury, the plaintiff was working only 30.4 hours per week, which was one of the bases for Mr Allan’s calculations. That figure was consistent with that stated in the plaintiff’s claim form: Exhibit 27. However, when asked about the issue in cross examination, the plaintiff had said that she chose to work three days a week and ‘could have worked more than three days had I wanted to’: T101.
The other factor that could be taken to have borne upon the plaintiff’s earning capacity, as well as her likely retirement age, was her psychiatric condition and health more generally. In that connection, the defendant emphasised some of the historical evidence concerning the plaintiff’s psychiatric condition prior to March 2013[255] as well as elements of Associate Professor Rao’s oral evidence.
[255]See, in particular, Exhibits 14, 15, 16, 17 and 21.
In that regard, Associate Professor Rao gave evidence that the plaintiff’s underlying borderline personality disorder could be exacerbated with or without triggering events.[256] On the other hand, Associate Professor Rao considered the plaintiff to have had ‘some threshold symptoms for years and years and years’[257] and, indeed, several years of clinically significant symptoms.[258] That said, in the periods to which Associate Professor Rao was referring, it seems that the plaintiff was nonetheless functioning and working.
[256]T150.
[257]T153.
[258]T168.
In this connection, Associate Professor Rao considered borderline personality disorder to be a ‘good prognostic disorder’.[259] In respect of the plaintiff, Associate Professor Rao considered the incident on 27 March 2013 to have been a ‘tipping point’ after which she had a new diagnosis of PTSD and her underlying borderline personality disorder had taken ‘a whole new turn’.[260]
[259]T161.
[260]T170-172.
Ultimately, as senior counsel for the plaintiff highlighted, Associate Professor Rao considered that the plaintiff’s presently severe psychiatric condition was to be explained by the assault and, absent that event, the prognosis in respect of her other conditions ‘would have been much better’.[261]
[261]T133.
As I have noted, there is evidence that the plaintiff’s pre-existing psychiatric condition caused her to be treated at several points from about the age of 18 or 19 and especially in and after 2008. As earlier noted, the plaintiff seems to have been hospitalised for a period in 2005 in Albury and was certainly hospitalised for a period in 2011 when she was under the care of Associate Professor Rao.
It is plain that the plaintiff missed work for a period in 2011. It is not clear whether that led to a loss of income,[262] although that is perhaps not important. The fact is that the evidence suggests that the plaintiff had a pre-existing psychiatric condition of some significance that had affected her in the past and, absent the assault, could have affected her to some degree in the future, including by causing disruption in her capacity to work.
[262]The issue was not explored in the plaintiff’s evidence. I note the suggested fluctuations in the plaintiff’s income in 2010, 2011 and 2012 (see, T325-326), although that does not, of itself, suggest that the plaintiff lost income in the 2011 year only as a consequence of her hospital admission.
I also take account of the other physical ailments relied upon in very broad terms by senior counsel for the defendant, although the potential future effect of any of that is very speculative indeed.[263]
[263]T448. Cf., Exhibit 22 (CB732).
In the circumstances, I accept that there is a slightly greater than normal risk that the plaintiff would have been affected by one or more of these conditions absent injury, and that the risk concerned should be taken into account in both the assessment of general damages and the assessment of her loss of earning capacity.
That said, Associate Professor Rao plainly considered the pre-existing psychiatric condition to be treatable and the fact is that, as she highlighted in her own evidence, the plaintiff had nonetheless raised children, had a successful second marriage and worked in responsible employment over several years prior to the severe impact of the incident on 27 March 2013.
In my view, absent injury in the incident, that position was more likely than not to have continued into the future. That said, a discount should be applied in order to take account of the potential for the underlying conditions to have impacted the plaintiff’s earning capacity at times in the future; perhaps somewhat like as they had in the past.
As I have indicated, the extent to which features of the kind to which I have referred had actually resulted in a loss of earnings in the past is not clear, however I accept that it is appropriate to reflect that potential in a small but specific discount of 5% in respect of both past and future loss of earning capacity. In respect of the future, that means that it stands as an additional 5% on top of the regular discount of 15% for future vicissitudes.
Further, in circumstances in which the plaintiff was likely to be doing meaningful and enjoyable work in which she was valued, and, as I have indicated, it is less than likely that her pre-existing psychiatric condition and other ailments would have significantly affected her, I think it is more likely than not that she would have worked to a retirement age of 65.
That brings me to the issue of general damages. The plaintiff emphasised the generally devastating impact of the assault and, as I have noted, the defendant properly acknowledged it.
That said, the assessments proposed by each party in respect of general damages varied very greatly, and neither sought to engage with whatever might be said to underlie that difference.
In the end, taking account of the matters to which I have referred, the assessment of general damages in the present case must be guided by an overall impression, and, rather like the stance adopted by each of the parties in submissions, I can do no better than say that by my estimation a fair and appropriate sum to compensate the plaintiff for her pain and suffering is $375,000.
The remaining issues relate to the assessment of loss of earning capacity and the evidence of Mr Allan.
I have already indicated that I consider it likely that the plaintiff would have continued to work in the area of community health. Although senior counsel for the defendant cross-examined Mr Allan about the availability of ‘salary sacrifice’ arrangements,[264] and subsequently advanced detailed submissions directed to the favourable tax arrangements presently applying in the area of community health, I accept the general effect of the evidence of Mr Allan that those arrangements remain available.
[264]T328-329.
Further, while senior counsel for the defendant submitted that there was no reason to assume that the presently favourable tax arrangements would remain available,[265] I regard that prospect as wholly speculative. Mr Allan explained the rationale for the present approach,[266] and it seems to me that if preferential tax treatment is presently applied to such charitable organisations because it is thought desirable to encourage such work – which I can quite understand – it is not clear to me why that would ever be changed except for reasons that are more capricious than I could anticipate. No specific reasons were identified in argument, nor were any such reasons identified in the evidence. In the circumstances, I do not accept that I should apply any kind of discount based upon a speculative consideration of such an apparently capricious kind.
[265]T451.
[266]T336-337.
A further issue concerns the assertion that the calculations of Mr Allan in respect of the plaintiff’s entitlement to superannuation involve ‘double counting’. As I understood it, that is said to be because any superannuation contributions of the plaintiff are assumed by Mr Allan to have increased in value at the rate of 9% and awarding that sum to the plaintiff now would allow her to then earn a further 9% were the sum concerned now re-invested.
The sum concerned is $70,520. Within that total, the figure of $27,503 for the past is to be discounted by 5% for particular vicissitudes. The figure for the future is, of course, already discounted by 6% and also subject to an overall discount of 20% for vicissitudes.
Further, when challenged about the issue in cross-examination, Mr Allan stood by his assessment and, indeed, the overall position presented as considerably more complex than the puttage to Mr Allan and subsequent submission on behalf of the defendant might tend to suggest.[267] In particular, it was not at all clear that the plaintiff would ever be able to re-invest the sum concerned in superannuation; having, of course, received it as an award in respect of lost superannuation.[268]
[267]T330-334.
[268]T335.
As I have also indicated, the defendant led no evidence contrary to that of Mr Allan; nor any evidence that would more clearly articulate and explain the effect of the point sought to be advanced via cross-examination and submissions.
In the circumstances, I am not persuaded that there is any unfairness of the kind sought to be suggested by the defendant and, more specifically, consider it to be fair and appropriate to assess the plaintiff’s entitlement to damages in respect of lost entitlements to superannuation by reference to the figures identified by Mr Allan.
The final issue concerns the submission that I should, in effect, reject the evidence of Mr Allan and ‘hold’ the plaintiff to the calculations appearing in her list of special damages.[269]
[269]T449-452.
Having read Mr Allan’s reports and seen him give evidence, subject to the particular adjustments to which I have referred, I am persuaded that his evidence should broadly be accepted. I am not satisfied that it would be appropriate to adopt the alternative approach suggested in address. That is particularly so in light of the issues of favourable tax treatment and superannuation that bear upon Mr Allan’s calculations, but are evidently not or not clearly taken into account in the calculations appearing in the plaintiff’s list of special damages.
In light of the above, and otherwise accepting the evidence of Mr Allan concerning the plaintiff’s past and future loss of earning capacity,[270] I assess the plaintiff’s entitlements to damages as follows –
[270]In particular, see the summary of calculations to age 65 in Exhibit 10.
(a) General damages: $375,000.
(b) Past LOEC: $468,674 + $27,503 super x 5% vicissitudes = $471,368.15.
(c) Future LOEC: $425,382 + $43,016 super x 20% vicissitudes = $374,718.40.
(d) Fox v Wood: $23,529.
(e) Total: $1,244,615.55
I am, of course, conscious that the above assessments will, at the very least, be affected by the passage of time between Mr Allan’s updated report and the date of judgment, as well as by the plaintiff’s receipts of statutory entitlements. In light of the above, I will allow counsel to conduct the necessary re-calculations and, in due course, propose figures to reflect the final substance of the above.
G Conclusion
The plaintiff was assaulted in the incident on 27 March 2013 by Peter Wales.
In respect of that incident, the plaintiff suffered injury, loss and damage as a consequence of a breach of the duty of care owed by the defendant to the plaintiff as its employee.
It follows that there must be judgment for the plaintiff for damages as assessed.
I will allow the parties to consider these reasons in order that counsel may propose appropriate final orders.
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