Caldow v State of Victoria (Education Department of Victoria)
[2012] VCC 1331
•18 December 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-11-02021
| MARGARET CALDOW |
| v |
| STATE OF VICTORIA (EDUCATION DEPARTMENT OF VICTORIA) |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10-14, 17-18 September 2012 | |
DATE OF JUDGMENT: | 18 December 2012 (Revised) | |
CASE MAY BE CITED AS: | Caldow v State of Victoria (Education Department of Victoria) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1331 | |
REASONS FOR JUDGMENT
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SUBJECT – INDUSTRIAL ACCIDENT
CATCHWORDS – Duty of care – psychiatric injury – scope of duty owed by an employer to an employee – alleged failure by the employer not to expose the employee to unnecessary risk of reasonably foreseeable psychiatric injury
LEGISLATION CITED – Occupational Health & Safety Act 1985 and 2004
CASES CITED – Hardy v Mikropul Australia Pty Ltd [2010] VSC 42; Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839; Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Hatton v Sutherland [2002] 2 All ER 1; Barber v Somerset County Council [2004] 1 WLR 1089; Wyong Shire Council v Shirt (1980) 146 CLR 40; Rosenberg v Percival (2001) 205 CLR 434; Sydney Water Corporation v Turano (2009) 239 CLR 51; Hegarty v Queensland Ambulance Service [2007] QCA 366; Nationwide News Pty Ltd v Naidu & Anor: ISS Security Pty Ltd v Naidu & Anor [2007] NSWCA 377; Vairy v Wyong Shire Council [2005] HCA 62; Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33;.
JUDGMENT – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C B Thomson with Mr S Isaiah | Victorian Compensation Lawyers Pty Ltd |
| For the Defendant | Mr R J Stanley QC with Mr R Kumar | Minter Ellison |
HER HONOUR:
Introduction
1 Margaret Caldow, the plaintiff, is suffering from a Major Depressive Disorder and has not worked for over four years, save for a couple of hours at the end of 2008/early 2009, and is unlikely to work again. She claims her depression and associated agoraphobia were caused by the negligence of her employer, the State of Victoria, the defendant.
2 The plaintiff commenced work as a teacher for the defendant in 1983 and started work at Mooroopna High School (“the School”) in 2000 in the Disabilities Program. She continued in that employ until the second week of the first term in 2008.
3 As a part of her work, the plaintiff was required to undertake timetabling duties to arrange for the distribution of hours of a number of integration aides employed in her department.
4 The plaintiff asserts that the defendant breached its duty of care by not providing her with appropriate assistance in the timetabling process, and bullying her into taking a reduction of her own work hours to 0.8 of her full time workload so that two further staff could stay on.
5 The defendant denies it was negligent and denies it knew, or ought reasonably to have known, that the plaintiff was likely to suffer psychiatric injury as a result of its actions.
The Issues which Require Determination
6 There were numerous asserted breaches of duty alleged in the Amended Statement of Claim which was filed on the morning of the first day of hearing. Essentially those allegations fall into the following main categories:
(a) failing to undertake the appropriate consultative process with the plaintiff when she was required to prepare the timetable for the integration aides and resolve staffing budget issues for the 2008 school year – such process being set out in the Schools Services Agreement 2008;
(b) acting in an unreasonable manner in pressurising the plaintiff to accept a permanent twenty per cent reduction in her hours of work and pay, in contravention of the defendant’s policy, by threatening to otherwise terminate the employment of other integration staff and without giving the plaintiff a reasonable time to consider the decision when there were alternative steps that could have been taken;
(c) failing to provide the plaintiff with assistance in dealing with excess staff and not taking steps available to have the staff deployed elsewhere in the School;
(d) failing to provide any assistance for the plaintiff’s welfare in circumstances where the plaintiff had told the School she was not coping with issues and failing to make proper enquiry as to what it was that was causing the plaintiff to feel that she could not cope;
(e) failing under 2.2.4(2) of the Occupational Health and Safety Regulations 2007 to resolve the issue.
7 In a preliminary ruling, this alleged breach was struck out on the basis that it did not apply to the facts of the present case.
8 Further, or alternatively, it was alleged the incident occurred and the plaintiff was injured by reason of the breach by the defendant of its duty to the plaintiff pursuant s35 of the Occupational Health and Safety Act 1985 and 2004 and/or regulations made there under.
9 In his opening address, counsel for the plaintiff stressed the lack of consultative process provided by the defendant when dealing with staffing and budgetary issues with the plaintiff.
10 It was said on the plaintiff’s behalf, that these breaches, or a combination or one or more of them, materially contributed to a massive psychological breakdown, resulting in the development of a major depressive condition.
11 The allegation of contributory negligence was withdrawn at the commencement of the hearing.
Witnesses and Evidence
12 Evidence was given by the plaintiff, her husband, Peter, and the plaintiff’s friend, Kathryn Chessells. In addition, Dr Cory and Professor Keks gave evidence, and their reports were tendered. Reports from other treating doctors and medico-legal examiners were also relied upon, together with a number of the defendant’s internal policy documents, emails between the parties and the statement of Mr Armstrong.
13 The defendant called the former principal of the School, Mr Fletcher, and the business manager, Mr McDonald. In addition, the defendant tendered a number of emails and statements of the plaintiff and Mr Fletcher.
The Plaintiff’s Evidence
14 The plaintiff was born in October 1957 and is presently aged fifty five. She married Peter in 1978 and they have four surviving adult children. A fifth child, Patrick (“Patty”), died in 2009 aged twenty.
15 Having completed secondary school, the plaintiff completed a Diploma of Education at Bendigo and in 1978, she commenced teaching in Melbourne. She later obtained further qualifications in literacy, and special education.
16 The plaintiff commenced work with the defendant in Shepparton in 1982 filling in as a speech pathologist and then teaching disability students. Over the following years, the plaintiff gave birth to her five children. She had an extended period of leave and also taught in Shepparton and the Northern Territory.
17 The plaintiff commenced at the School in 1999 as an integration aide on a 0.8 load. Gary Golding was then the principal. In 2002, the plaintiff became full time.
18 The plaintiff had a real passion for students with a disability. She was well respected in her role by fellow teachers (as the Performance Review in 2001[1] and the 2006 Evaluation form[2] completed by the School principal indicated), parents and students, and took pride in her leadership of the integration unit.
[1]Exhibit A
[2]Exhibit B
The Plaintiff’s Health prior to February 2008
19 At the start of the 2008 school year, the plaintiff was feeling good mentally and physically, having recently returned from a holiday to Perth.
20 About three years earlier, the plaintiff had had some difficulty managing with a student suffering from cancer who had had a tracheotomy. The plaintiff often spoke to the defendant’s welfare officer when there were difficult situations.
21 The plaintiff was then prescribed antidepressants by a doctor in Tatura but she did not continue to take them. She described the situation as being more of an anxiety regarding the student that something would go wrong, rather than depression. She sometimes found it hard to sleep, as she would be thinking about the students or the planning or sometimes even personal reasons, so she did take sleeping tablets sometimes but not often.
22 As of early 2008, the plaintiff and her husband were renting a house whilst paying the mortgage on a home they were renovating. They were struggling financially to support children at home and away from home.
Issues before 2008
23 In about October 2007, the plaintiff sat with Gary Golding, the former principal, and by then she would have been around the schools to see what number of students were coming and which children were being tested. She could not be sure at that stage whether a student would receive funding or not but “they ran it pretty close to the line”. The integration program would be finalised on census date at about the end of February.
24 The plaintiff identified a handwritten document she provided to Mr McDonald in Term 1 of 2007 setting out the hours worked by integration aides in that term and the hours proposed by her that they work in Term 2.[3]
[3]Exhibit 1
Issues before 2008
25 The plaintiff felt the Year 7 coordinator, Marcus Armstrong had undermined her in relation to a student issue in 2007 and she explained that in dealing with this issue, Mr Fletcher had breached confidentiality with her.
26 There was some friction between the administrative aides and aides who dealt with the students. The plaintiff had requested written clarification of the roles of the respective aides but was never provided with it.
27 The plaintiff thought in all schools there was a formal occupational health and safety policy[4] but she had not seen the one at the School, nor had she attended any meetings of this nature.
[4]Exhibit C
The Start of the 2008 School Year
28 The first day back in the 2008 school year was Tuesday, 29 February. No students attended that day.
29 A staff meeting was held that day which administrative staff did not attend. At that meeting, staff were advised there would be some change in the timetabling of excursions which would require liaison with Mr Armstrong. This made the plaintiff slightly anxious.
30 The plaintiff became aware two students had left in the last couple of days of the 2007 school year. She became anxious because she did not know why they had left and she would have liked to have spoken to their parents.
31 As she did not have a copy of the indicative budget, as had been the case every other year, the plaintiff had a look at her computer and noticed there would be a surplus of staff. That had happened before, but the plaintiff was stressed as she had never spoken to Mr Fletcher about this issue before and previous dealings with him had caused her stress so she did not tell him that day. From the very start, Mr Fletcher was money orientated rather than staff orientated and that was a huge difference, so the plaintiff knew there would be a problem.
32 On the Wednesday, the plaintiff greeted some of the students and worked on the timetable.
33 The plaintiff was kept from meeting the Year 7 students which made her feel guilty because she had too many staff to deal with. She knew the reduction in student numbers was a problem and she did not know how to tell her staff. That situation caused her quite severe anxiety.
34 That night, the plaintiff attempted to tell her husband, Peter, that she had a problem. She was then getting anxious because Mr Fletcher had asked aides at the staff meeting not to bother administration staff.
35 When all the students came in on Thursday, it became very apparent to the plaintiff that student numbers were down. Staff were enquiring as to their hours and she had to tell them the budget was not working out. The staff were hassled and angry.
36 The plaintiff asked to speak to Mr Fletcher and she attended his office with the budget sheets. He opened up his indicative budget and found he had put one staff member, Barb Monks, in the wrong area. This was dreadful news for the plaintiff.
37 Mr Fletcher informed the plaintiff there was a budget deficit and called in Mr McDonald, who also found the staff member had also been put in the wrong section of the budget.
38 The plaintiff could not recall whether this meeting was on Thursday or Friday, but it was not a pleasant meeting.
39 Mr McDonald advised there had to be cuts immediately and Mr Fletcher agreed with him. The plaintiff had never been placed in that situation before. She told them:
“Normally we wait until census date, and they just ‘boohooed’ that. They said, ‘What would you have previously done?’ and I told them I’d put myself to 0.8, cut the hours of staff and get the budget to equalise itself out, then deal with me on 0.8 because there was always to be a fulltime teacher, but when they did that, it still didn’t work out.”[5]
[5]Transcript 120
40 If the plaintiff went to 0.8 it meant she could work somewhere else in the School, having done so before teaching maths and English.
41 The plaintiff confirmed, in answer to my question, that if there was not enough money to go around she would adjust her situation.
42 The plaintiff suggested that maybe her situation could be adjusted to see how many hours were actually available, but Mr Fletcher and Mr McDonald started to cut the staff down to such a degree, it was obvious someone had to go. Mr Fletcher said the person to go was Andrea Normington as she was “surly”. The plaintiff objected to this comment but was accepting of Ms Normington going as she was last one on.
43 Then Mr Fletcher told the plaintiff two staff more would have to go and she would have to go to just 0.8. The plaintiff said to Mr Fletcher “I’m 0.8 there”. Mr McDonald said to the plaintiff she could “play granny”. The plaintiff told him she did not think so as she had a mortgage, rent to pay and two children to put through university.
44 The plaintiff was not concerned as she thought she would manage with teaching the other 0.2. She left the office without the budget being worked out and was told to get the letter ready for Andrea.
45 The plaintiff was confused whether this meeting took place on Thursday or Friday. It made her sick to think back to what date the meeting was held.
46 When the plaintiff went home that night she was very upset. She broached the subject with Peter, telling him that she had put herself to 0.8 but she had done that before. They ended up fighting with Peter, saying he would not trust Mr Fletcher. The plaintiff agreed. That night, the plaintiff did not sleep and she was not coping.
47 The next day, the plaintiff told Mr Fletcher he would have to come and tell staff about the cuts. At that meeting, he said “Marg’s going to 0.8” and she said “I’m going to 0.8 integration” and he looked at her very angrily. The staff asked Mr Fletcher whether there were any other jobs in the School for them and he said “No” “which at that stage we knew was not true because there were rumours there was Koori money for SSOs”.
48 The plaintiff thought that following her sending an email to Mr Fletcher on 1 February 2008,[6] there was a further meeting with him and Mr McDonald. She was confused as she thought that was the meeting when 0.8 was discussed and there was the granny conversation and she described how Mr Fletcher “flew” into Ms Normington.
[6]Exhibit F
49 The plaintiff described how Mr Fletcher was asking her to work with a group of women who knew things were going badly and who knew she had never been a stressful person with them and yet he would not commit to the budget. The plaintiff had heard there was Koori money and asked Mr Fletcher whether there were other jobs at the School and he said “No”.
50 Mr Fletcher then said he was going to take the letter to Andrea but the plaintiff told him she did not want him to give it to her until census date because Andrea had a personal tragedy and should not have been at school.
51 Going from how she felt at home, the plaintiff thought this all happened on the Thursday, but in reality it happened on the Friday, after which she went home and told Peter:
“He’s put me to 0.8 and won’t listen that I’m on full-time ongoing teacher.”[7]
[7]T130
52 Peter reassured the plaintiff, saying there was a protocol that had to be followed. The plaintiff replied:
“That’s all right because I’ve asked him to look at the protocols.”[8]
[8]T130
53 However, the plaintiff felt uneasy in her stomach because she did not trust Mr Fletcher to do the right thing.
54 The plaintiff thought all this happened on the Friday because that was when she felt most uncomfortable, and Peter reassured her over the weekend.
55 Later in examination in chief, when asked who raised the suggestion of 0.8, the plaintiff said she did. She then said:
“Put me at 0.8 – no, I didn’t”.[9]
[9]T133
56 Mr Fletcher said two staff are going to have to go if the plaintiff did not go to 0.8, and she said:
“Well then put me at 0.8 and see if the budget balances, which it did … but it still did not.”[10]
[10]T133
57 At the end of the meeting, the plaintiff thought she was 0.8 integration, but had this terrible feeling that Mr Fletcher was going to try to make her sign a form to make her go to 0.8. That was the reason she discussed the issue with Peter.
58 The plaintiff thought she would have to sign a document to be reduced to 0.8. She was then under a lot of stress and she thought Mr Fletcher “had bullied [her] this far” and she hoped he would not bully her into signing.
59 Mr Fletcher was so angry at the meeting. He loved money and he wanted everything to balance. That was his sole focus of school – it was not caring for staff or the students.
60 The plaintiff told staff they needed to look after themselves over the weekend and told Andrea it would probably be her who had to go.
61 Mr Fletcher did not give the plaintiff a copy of what he had on his budget for her to look at over the weekend. She took what she had to look over at home.
62 That weekend, the plaintiff went to the doctor because she “felt out of her tree” and had never felt like that before. She declined the suggestion of time off. The plaintiff felt like she was having a heart attack and was told by the doctor she was having a panic attack. She was given some Oxazepam and Stilnox to help her sleep but they did not really work.
63 Over the weekend, the plaintiff was very anxious for her integration team. She spoke to her brother-in-law, a former principal, about the 0.8 issue.
64 The plaintiff’s family were really concerned about her. She was not speaking to them and had gone missing so to speak.
65 The plaintiff knew that they were getting closer to budget by that stage and knowing that she had access to other funding under Mr Golding, she thought it would be right, so she went in to school on Monday feeling a little bit happier.
66 The plaintiff attended school Monday and Tuesday, but those days blended together.
67 The plaintiff became aware through Katrina Muir that there was some spare Koori money. Ms Muir had forty hours she was trying to find staff for and the plaintiff was panicking about twenty hours. This news “sent [the plaintiff’s] head crazy”. She asked Mr Fletcher if there was going to be any job that she or her staff could take, and he said “No”. The plaintiff then realised he had lied, quite deliberately lied.
68 There was a teaching and integration staff meeting on the Monday. Mr Fletcher stood up and thanked the staff for a wonderful start to the year and said “We haven’t had any worries so far”. The plaintiff then felt like she had been punched in the stomach.
69 Following that meeting, Mr Fletcher thanked the plaintiff for the good job she was doing. The plaintiff told him she was not doing a good job and needed help. He said “Oh yeah,” and he walked away. That particular occasion stood out because of Mr Fletcher’s “very arrogance,” in that he just turned and walked.
70 The conversation with Mr Fletcher after that meeting was a personal plea for help.
71 Prior to that meeting, staff were coming in not knowing what pay they were on and what days to come in. At that meeting, the plaintiff said she needed the staff to know that the integration staff they were having in their classroom to help would not be remaining and they were having a lot of difficulties with sorting out the hours and needed a lot of help and it was affecting the integration staff personally and they needed staff to be kind to them.
72 The plaintiff could not tell teachers their hours because no budget had been set and she raised that as the real problem, but Mr Fletcher overrode it, congratulating the staff, and it made the plaintiff feel like a fool and less able to cope when she knew of the problem.
73 When Mr Armstrong spoke to the plaintiff in the next couple of days, it became apparent he knew she was 0.8. The plaintiff was “blown away because she knew confidentiality had been broken again” and she had not signed anything. She had not been able to balance the budget and she did not know what hours staff were on, including herself.
74 The plaintiff knew until she signed a form that she would not need to worry about her hours being reduced. Peter had shown her a form after they had had the fight on the Friday night.
75 The plaintiff confirmed that during this time classes were running and aides were not just standing around. Students were getting extra coverage.
76 The plaintiff was unsure whether Andrea was given her letter of termination on the day of the Monday staff meeting or the following day.
77 The plaintiff attended work on the Tuesday as her work conditions had not been discussed with Mr Fletcher.
78 The plaintiff thought she received a 0.8 pay in the week after she left school. She then rang Peter and he “went berserk” and made phone calls. Paul Muller from the Department restored her pay immediately, discussing the issue with Peter on the phone.
79 Peter showed the plaintiff Mr Muller’s email when he came home and it made her feel she was correct in assuming she should not have been 0.8 but by that stage she had lost confidence in her own ability and felt Mr Fletcher did not have trust in her to do her job.
80 On the Wednesday, there was a union meeting for staff. The plaintiff told the meeting that the integration staff did not know what they were doing because they did not have a budget. That issue was documented but the meeting moved on. Neither Mr Fletcher nor Mr McDonald was present at that meeting.
81 The plaintiff did not know what she did the rest of the Wednesday. She did not think she had any other duty and was just asked by staff what was going on but she could not tell them. She was putting on a brave front on the outside but on the inside she had begun to lose faith in herself and her abilities and she did not really know what was going on. That night, her sister brought over a meal because she was not coping. The plaintiff had had a couple of nights during which she was vomiting. She had trouble getting to sleep.
82 Mr Fletcher emailed the plaintiff on the afternoon of Friday, 1 February 2008[11] advising her he had sent a draft to local principals detailing Ms Normington’s availability and recommending her for work. That email cheered the plaintiff up.
[11]Exhibit J
83 On Monday, 4 February 2008, the plaintiff replied by e mail to Mr Fletcher –“That’s great thanks” in terms of Ms Normington.[12] Further, the plaintiff advised she was preparing a new program for staff. She also noted that on the day she was off, the office would be closed.
[12]Exhibit J
84 The plaintiff assumed on the day she had off, she would go to the library to replace the pregnant librarian working there. She did not approach Mr Fletcher about this issue because she did not intend to be like women Mr Fletcher had “downgraded” in the past. Everything was left unsaid and aides were still coming in for work.
85 The plaintiff indicated to Mr Fletcher she would be prepared to do one other duty. On Thursday, the plaintiff was told the duty roster had been completed and she found out she was down for six duties. She ripped the roster from the wall. She was absolutely floored. She started crying and decided she had to leave the School.
86 On 7 February 2008, the last day the plaintiff worked, she emailed Mr Fletcher and Peter[13] advising she felt under stress and that she felt under supported when she had been allocated extra duties despite her specific request that this not occur.
[13]Exhibit K
87 Whilst she agreed she had received it, the plaintiff did not read Mr Fletcher’s email reply of the following day. She did not read any of the emails from him because they made her sick and she just ignored them.
88 The plaintiff saw Dr Zhang on the Thursday and he gave her three weeks off, or maybe a week. At that time, she felt like her body did not belong to her head. She could not talk about the issue at home; she was rambling; she was sick; she suffered nausea and she could not even show interest in her own children.
89 In the second week away from school, Peter found out the plaintiff was eligible to get some psychological help from the defendant and she booked in immediately. She saw the psychologist three times but did not really get any help.
90 Over the next few weeks the plaintiff continued to attend her general practitioner. She started hurting herself. She was having panic attacks and refused to leave the home.
91 Dr Zhang referred the plaintiff to Dr Chakrabarti, a psychiatrist, in Shepparton about four or six weeks after she finished school. She stopped seeing him after about five months because he was inappropriate and he upset her. By that stage, the plaintiff had started to see a psychologist, Rod Steer, in Shepparton, who suggested she not return to Dr Chakrabarti.
92 The plaintiff saw Mr Steer about half a dozen times until her sister Carmel died in January 2009.
93 Work Solutions was involved in trying to get the plaintiff back to work. She wanted to go back as teaching was her only career. She had contact with Andrea Crowe regarding a return to work plan.
94 The first suggested job was at a school over an hour from the plaintiff’s home but she could not drive that far. The second proposal was for the plaintiff to work at Ardmona, twenty minutes away. The plaintiff started there on 26 November 2008.
95 The plaintiff had previously worked with the Ardmona principal, Jean Varty. The arrangement was that the plaintiff not see any students or have any dealings with money. She was then being certified fit to work two hours one day and one hour another day, by Dr Chakrabarti.
96 The plaintiff did not attend work on the first date arranged. She went to the doctor and rang Jean Varty, who visited her at home. The next day, the plaintiff was crying. She stopped the car and pulled herself together and spent time in the Ardmona office with Ms Varty, who asked her to look through some files. The plaintiff found that an extremely arduous task and she was taking an antidepressant Lovan. The plaintiff got upset and swore in front of a small child.
97 The plaintiff worked for three hours a week for the rest of the school year. She was anxious and Ms Varty walked her through classrooms to get her confidence up.
98 The plaintiff had sleep problems and was getting a lot of help at home, and rarely left the house. She heard voices telling her she was not a good mother or a good teacher. The plaintiff told Dr Chakrabarti about these voices but he did not believe her.
99 Over Christmas, the plaintiff “put on an emotionless look” and did not find any enjoyment out of anything. The family did not go away for holidays. The plaintiff did nothing. She just gazed at the television. She went from sad to sadder. She lost interest in her family that she had previously enjoyed so much.
100 Since the plaintiff has been ill, family relations have been fractionalised with her children not understanding why she could not go on and suggesting she should not have left the School. She stopped contacting her children.
101 When the plaintiff was told of Carmel’s death in February 2009, the plaintiff was in shock and fell to the floor in disbelief. The plaintiff felt immediate guilt because she would have normally seen Carmel more frequently than she had before she died.
102 The plaintiff did not go back to Ardmona in February, as she needed some time after Carmel’s death.
103 The plaintiff then started seeing Dr Lu, having previously been under Dr Adba’s care.
104 Two weeks after Carmel was buried, the plaintiff found Patty dead in his room at home. He had told her before his death that he was unhappy on his medication and she ignored the problem. That would never have been the case before she was sick and, for that reason, she would always carry the element of guilt that she did not do enough to save him. She understood the cause of Patty’s death was that Dothiepin had built up in his system and caused an overdose.
105 At first after leaving school, the plaintiff lost a lot of weight but in the last two years she had put on thirty kilograms due to inactivity and her medication intake. She felt horrible and hated how she looked.
106 The plaintiff started to see Professor Keks in about April 2009 and continues to see him every two or three weeks, depending on how she is feeling. He assured her the voices were real and she must not under any circumstances follow them and kill herself.
107 The plaintiff was an inpatient at Delmont Private Hospital (“Delmont”) for three weeks in the latter part of 2009. Before that admission, the plaintiff’s medication was not going well and she felt unsafe and thought she was going to kill herself, although she did not want to.
108 This had been the situation from the time the plaintiff left work. During her first inpatient stay, her medication was changed substantially. She attended group therapy, swimming programs and saw another psychiatrist.
109 Following discharge on 26 September 2009, the plaintiff did not feel particularly different. She felt disoriented coming home. Returning to the real world was very, very difficult but she was prepared to give new medications time to work.
110 The voices seemed to stop at that time and the plaintiff no longer had to listen to music on earphones to block them out. While there was some improvement, there was not enough to make the plaintiff feel like the person she was before.
111 The plaintiff continues to see psychologist, Salina Ford, and Dr Cory. She started to see Ms Ford at the same she started to see Professor Keks. Sometimes she sees Ms Ford twice a week and talks to her about how things are going and how she is feeling.
112 Dr Cory has been looking after the plaintiff for the last three years.
113 In 2010, the plaintiff had a second four week admission at Delmont, during which she had ECT treatment. Professor Keks had asked her to go six weeks earlier to admit her for three weeks because he felt she was out of control. However, the plaintiff wanted to continue seeing Ms Ford, and her family and Professor Keks allowed her to stay at home.
114 The voices have settled down with appropriate medication. The plaintiff is on quite a high dose of Effexor for Major Depression and on Clonazepam to stop panic attacks. She is also on Diazepam and Mersyndol, and Phenergan at night to help her sleep.
115 Her current panic attacks do not involve severe pain; she just suffers sweating and shakiness and cannot stop. Previously, the pain was like a heart attack.
116 The plaintiff has had two quite serious car accidents. She has to set herself a plan so she does not panic when driving and she does not drive after 5pm because busy traffic worries her.
117 The plaintiff’s liver function has not returned to normal after an initial problem with medication.
118 The plaintiff wants to sleep all the time and has a fatigue she cannot explain.
119 Prior to her illness, the plaintiff had a lovely social life and mixed with families who had similar aged children. The plaintiff socialised and attended sporting events. She enjoyed reading.
120 The plaintiff does not have a life any more. She does not want people to come over and she stresses when they do. She struggles to do the shopping. Peter writes her notes to tell her what she should clean around the house. She does not like to answer the phone because she is scared. She has to remind herself to send a message to her children once a week.
121 The plaintiff did not know how Peter had stayed with her. Their love life is non existent. She no longer goes with him to the golf club or the football, having gone with him regularly in the past.
122 The plaintiff’s only real social contact is with the Chessell family. The plaintiff gets nervous eating out. She looks like a baby when she is eating and her children do not like eating out with her.
123 The plaintiff used to walk a lot and take her daughter to netball and play a few games. After leaving the School, the plaintiff did not walk at all initially. She does not watch films or television serials. She cannot read. Household chores do not get done and she is frustrated it takes her so long to do things.
124 It makes the plaintiff so sad that she has lost all ability to be able to concentrate and work as a teacher. She has to ask Peter every time what her passwords are.
Cross-examination
125 The plaintiff thought Mr Fletcher’s present role mentoring principals was one way of getting rid of him from the School.
126 The plaintiff was not calling any teachers to give evidence in support of her claim because that would be risking their jobs as hers was risked. She believed that with all her heart, because Mr Fletcher was not a man you could trust. The plaintiff agreed she initially called him “Fletch” but she now calls him “Fletcher” all the time.
127 The plaintiff agreed she had never heard Mr Fletcher make any comment critical of her, either to her or to anyone else. When it was suggested that he had not ever expressed anything other than support, she said his offer of help was a double standard, explaining that she should have got support from 31 January to 7 or 8 February 2008.
128 The plaintiff agreed she had a fair amount of autonomy in her role. She was confident in her job and had a passion for it. The plaintiff explained a parent’s decision not to send their child to the School was their prerogative and it did not cause her anxiety.
129 The plaintiff confirmed her problems of conflict with Marcus Armstrong.
130 Confirming she was in good health at the start of 2008, the plaintiff agreed this was the case mentally and physically and there were no problems she could foresee at that particular stage.
131 The plaintiff agreed there was past stress associated with a student with a tracheotomy and there was also a problem with a student with cerebral palsy. She also explained that things at school do not always go your own way, and at the occasional staff meeting there would be issues but she could not think of any in particular. Life was not always “easy breezy”, even when Mr Golding was the principal.
132 The plaintiff did not think it would be a fair comment to say she was in good, strong psychological health in the years up to 2008. She confirmed she had taken some sleeping tablets to cope with children at school and had taken some Lovan on one occasion.
133 The plaintiff was asked about a number of attendances on her general practitioner prior to 2008.
134 Dr Cory’s notes on 3 June 2003 set out that there had been two months of worsening lethargy, lowered mood and being teary. The plaintiff was also having poor concentration caused by stress from her heavy workload and prescribed Stilnox to help her sleep. Whilst it was not noted, the plaintiff put these complaints down to menopause.
135 The plaintiff attended Dr Cui in September that year. He noted the plaintiff’s problem with the fourteen-year-old student with cancer and also work and family stress. Stilnox was again prescribed. The plaintiff could recall being diagnosed with anxiety and depression at that time. It was a very difficult time, with her daughter also having some issues. Antidepressants were suggested but the plaintiff felt they were not going to cure her problem as there was a very good reason for it. She was then prescribed Oxazepam.
136 There was a further attendance in November 2003 when the occasional need to take Oxazepam was noted and Stilnox was prescribed. In February and April 2004, these prescriptions continued and did so throughout the year. The plaintiff believed it was possible she was prescribed the anti-anxiety medication, Oxazepam, because there were continual problems at work. She agreed as of August 2004, sleeping was not her forte.
137 There was a note of panic attacks in May 2005, but the plaintiff could not remember her condition being labelled as such. In September 2005 she was anxious and unable to go out. She reported concentration problems in September 2005.
138 The plaintiff explained her low mood at that time was quite different to her current severe depression. Zoloft was also prescribed in November 2005. By February 2006, the plaintiff was feeling well and her anxiety was under control but she still had problems sleeping and was prescribed further Stilnox and Zoloft.
139 At the start of the 2006 school year when Mr Golding was principal, the plaintiff explained to him that she was on those medications. She was quite confident he was aware of this situation.
140 There were further prescriptions of Oxazepam by Dr Abda in 2006. The plaintiff did not take it on a daily basis, just when she felt anxious.
141 In November 2006, the plaintiff had stopped taking Zoloft two months previously but had been feeling down and tired. Dr Adba diagnosed depression and it was possible he again prescribed Zoloft and Stilnox.
142 In August 2007, the plaintiff saw Dr Atkins, complaining of anxiety, and put it down to stress with placing kids at school. Again, Oxazepam and Stilnox were prescribed.
143 The first relevant entry in the 2008 school year was on 2 February 2008, when the plaintiff complained of stress at work, being in charge of running a disability unit with seven staff and having lost students, and everyone had been cut back to minimal hours.
144 The plaintiff next attended on the following Thursday. It was noted she tore up the timetable and left the School. Dr Zhang then noted: “Work related stress last few weeks, wages cut to eighty per cent.”
145 The plaintiff agreed at that visit she denied any feelings of hopelessness, worthlessness, helplessness or suicide. She still hoped that it would work out. She still had not got a pay and assumed with a few days’ rest it would work out. The plaintiff then said she was hysterical that day and could not really remember what she said to the doctor.
146 The plaintiff did not know about any mediation being organised with her in early March 2008 with Mr Fletcher and Mr McDonald. She could not recall that Peter advised the School that she was unwell and could not attend, nor that Dr Zhang had certified her fit to participate in a mediation.
147 When asked about the email she sent to Mr Fletcher on Monday, 4 February 2008,[14] the plaintiff said she had come back to work knowing she had to be positive and she decided to put on a positive face. It was wrong to say she had accepted 0.8 when she mentioned the day she had off. She explained she was attempting to consult with Mr Fletcher.
[14]Exhibit J
148 The plaintiff addressed her 7 February 2008 email[15] to “Fletch”, telling him she was going home. She agreed what broke her that day was seeing she had been allocated six hours of extra duties, having asked Mr Fletcher for his support in this regard. She believed Mr Fletcher had let her down.
[15]Exhibit K
149 The plaintiff then said the email really had nothing to do with yard duties. She sent it because the books had not been balanced and she felt under supported.
150 The plaintiff was taken to Mr Fletcher’s “Hi Marg” email response of the following day and his apology.[16] She did not read the email because she was lying at home in a foetal position, nor did Peter read it to her at the time.
[16]Exhibit K
151 Looking at the email now, the plaintiff said it came a week too late. It showed how “ignorant” Mr Fletcher was of the whole thing. When he had thanked her for the support she had given him and the School, she thought it came from a very insincere person who was writing a lot of rot. He knew he had not sent her a budget or balanced the books. The email was irrelevant to the whole issue.
152 When it was suggested to the plaintiff that Mr Fletcher had done all he could about the mistake in terms of allocation of yard duties, the plaintiff said he could have balanced the books. The issue that caused her to walk out was balancing the books; the roster was a final blow. The issue that forced her to leave was the fact Mr Fletcher refused to sit down with her as she had been used to in order to balance the books.
153 The plaintiff did not read Ms Ridge's email of 8 February 2008[17] at the time but Peter would have spoken to her about it and assured her she could not have a change in time fraction until further consultation and her giving written consent.
[17]Exhibit K
154 The plaintiff knew nothing of Peter’s visit with Mr Fletcher on 19 February 2008. She could not comment on the email sent by Peter on her behalf that day relating to integration aides for students aged eighteen years or older.[18]
[18]Exhibit 2
155 The plaintiff could not recall ringing the School on 6 March 2008 to say she would be absent for a couple of days nor could she recall the School asking she provide medical certificates. She was too “fuzzy” to remember what had been happening at that time.
156 When she left the School, the plaintiff assumed she was on full pay and she wanted to get well, but knew she was not. The plaintiff thought the first payslip after she left showed her at 0 .8.
157 The plaintiff was shown a payslip which was issued on 31 January 2008.[19] She had not seen it before. She was also shown the payslip issued on 14 February 2008.[20] Both showed full pay which she said was not what she received and Mr Muller could confirm that.
[19]Exhibit 6
[20]Exhibit 7
158 The plaintiff was then shown the payslip issued on 28 February 2008[21] which indicated an amount less than the two previous pay slips and reflected her only being paid at 0.8. The following day she received a further pay slip making up the deficiency.
[21]Exhibit 10
159 The plaintiff confirmed that essentially she got no support for budgeting issues at the union meeting on the Wednesday.
160 The plaintiff described her 2008 WorkCover statement[22] as very unfortunate and she signed it begrudgingly. It was taken over three days with the investigator staying long hours at the plaintiff’s home until late. When interviewed, the plaintiff was exhausted and she would have been rambling. She did not read the fifteen pages but did sign them and would have to take responsibility for the contents of the statement.
[22]Exhibit 8
161 Whilst the plaintiff signed that she had said “reduce me to four days a week,” she had said try me at 0.8. The investigator had failed to add the words “in the integration area”. When the plaintiff signed the statement, she was suffering from severe depression.
162 The plaintiff confirmed there was probably yelling between Peter and herself on the Friday night but she denied that she had committed to 0.8. Peter was very tired of her at times with the amount of time she had put into the integration unit.
163 The plaintiff agreed she set out in the statement that on the Monday morning she thought she should be positive with the staff even though her personal life was in turmoil. Even when this was the case she kept her home life separate to her work life and continued on.
164 It was again put to the plaintiff that she suggested 0.8. She explained there was no way she would have done so, as a full time teacher does not go to 0.8 unless she chose to and she was unable to do so in the circumstances. The plaintiff agreed if she was only to be 0.8 integration, there would be no loss of income.
165 The plaintiff agreed on a number of occasions she had asserted Mr Fletcher lied about the lack of Koori funding. By doing so, in her view, Mr Fletcher made a very quick balance and he would be able to boss and intimidate one woman against two men. She stated that was very easy to do when you are being bullied. He was a very poor principal. The benefit to him of her going to 0.8 was to make the books balance a little bit better.
166 The plaintiff finally recalled making a grievance complaint against Mr Fletcher in late 2008. She was very disappointed when advised he had been cleared She thought it was a very weak decision and since he was being promoted, it was a “job for the boys”. He needed more severe criticism than she gave him.
167 The plaintiff could then recall calling Joanne Corbett on 6 March 2008 as she was the one to whom to send the forms.
168 The plaintiff agreed she did in fact return to Ardmona in February 2009 when shown an email exchange with Ms Varty.[23] The plaintiff responded to Ms Varty’s email setting out her proposed duties, advising she was looking forward to catching up with her. The plaintiff also thanked Ms Varty for her support after having worked the day.
[23]Exhibit E
169 The plaintiff could not recall having received an email from Andrea Crowe on 6 February 2009[24] noting the plaintiff had worked more than three hours that week which exceeded the hours on her certificate; however, she thought Andrea phoned her. The plaintiff found being at the School a little longer than her certified hours very tiring.
[24]Exhibit 9
170 At that stage, the plaintiff knew she had a long journey ahead; she put on a “smiley face” although it was not very smiley on the two days at School. The plaintiff agreed she was then doing her best to get back to work.
171 The following week, Carmel died. The plaintiff confirmed she felt guilty because she had not gone to see her as she normally would have. She agreed she was not then fit to go to School and then a few weeks later her son died. The plaintiff agreed she wanted to follow up the cause of Patty’s death but she had long since decided just to love him the way he was.
172 The plaintiff was asked about her reports of suicidal thoughts to Ms Ford in May 2009. She denied she first had these thoughts after Patty’s death. She had them at the time of Carmel’s death. The plaintiff maintained she had told Dr Chakrabarti in March 2008 of suicidal thoughts and she had also told Peter.
173 In re-examination, the plaintiff explained that over the period of time before February 2008 she had had some sad moods, but never enough to take long periods off. The plaintiff went to see Mr Golding about the student with spina bifida and told him that she had started to take antidepressants to lift her mood. He was aware that she did struggle at times and he was fine with that because it was not interfering with her work. The plaintiff asked him to let her know if she was not doing her job properly in any way. He told her there were other teachers on antidepressants.
174 A couple of years later, the plaintiff again spoke to Mr Golding when she was really struggling doing both teaching and integration work and she told him she had to go on antidepressants again and was not happy about it. Mr Golding told the plaintiff she was still doing fine and doing her job very well and he was happy with the way she was doing it.
Peter Caldow
175 Peter Caldow is currently the principal at Girgarre Primary School. He met the plaintiff in April 1976 and they married in December 1978.
176 Mr Caldow described how, prior to suffering injury, the plaintiff was an excellent mother and homemaker and a fantastic wife and they were blessed with five children. The plaintiff “was the glue of the family”.
177 The plaintiff had a passion for gardening and was an avid reader. The family used to go camping. Most days after school, he and the plaintiff would debrief about their particular day at school.
178 Mr Caldow thought the plaintiff was a very competent integration aide who had the unit under her control. She was involved in the professional development of her aides and always had the students under her care at the first and foremost of all decision making. She built up the unit so that it attracted students from a wide area. The plaintiff had a massive degree of creating rapport with not only her students but also their parents.
179 At the start of the 2008 school year, the plaintiff was not her usual self; she was uneasy and seemed distracted and not to be in complete control of what her unit would be doing, which was unusual.
180 On the Friday of the first week back, when she came home, the plaintiff indicated she thought she would have to go to 0.8, to which he reacted to quite negatively and said “It’s not going to happen. Have you signed anything?” This was not a convivial conversation. He was quite concerned about the plaintiff’s state of mind. She was highly agitated, distressed and confused.
181 The plaintiff told him of the meeting with Mr Fletcher and Mr McDonald and she felt that unless she went to 0.8, some of the aides would lose their job.
182 Over the weekend, the plaintiff was highly distressed, but Mr Caldow felt a little bit safe because she had not signed a document and there could not be a reduction in her hours without that happening.
183 Over the second week back at School, the plaintiff’s mood continued to degenerate. She did not feel under control and did not feel as if she had Mr Fletcher’s support. She felt that she was being bullied into a time fraction which Mr Caldow told her could not happen.
184 Mr Caldow rang the defendant’s Help Desk and spoke to Christina Ridge, who explained the time reduction system and sent him a confirmatory email.
185 When the plaintiff left the School, she sent Mr Caldow the same email she had sent Mr Fletcher. Mr Caldow then realised the plaintiff was under enormous pressure and had a feeling of being highly under supported.
186 When the plaintiff came home from School on 7 February 2008, she was just a beaten lady and it was something he had not seen in her before. She felt undervalued, that the world was against her and she was pushing uphill.
187 The plaintiff did not go to School the next day and it was more of the same over the weekend. She attended the doctor and was very depressed and starting not to talk. He did not recognise the plaintiff in the next two weeks and he felt frustrated in his inability to talk to her. She previously was very resilient.
188 Before she went to see Dr Chakrabarti, the plaintiff was interviewed by a WorkCover investigator. Up to that stage, Mr Caldow felt an injustice had been done but that it would be fixed up and the plaintiff would go back to work.
189 The WorkCover investigator came to their house on three separate occasions. Mr Caldow was concerned that the investigator stayed too long and it was just too distressing for the plaintiff. The investigator typed as she interviewed. During that time, the plaintiff was very highly stressed trying to get her story out. Mr Caldow and the plaintiff were compliant with process.
190 The plaintiff contacted him and told him her pay had been reduced by about $100, and he then rang Paul Muller in HR. Mr Muller advised he would contact the School and then sent Mr Caldow an email on 28 February 2008[25] confirming he had attempted to call him and advising the plaintiff’s pay would be reimbursed to the normal level. Mr Caldow then let the plaintiff know that her pay had been reinstated.
[25]Exhibit M
191 Mr Caldow was concerned the plaintiff was distressed with her treatment by Dr Chakrabarti.
192 During the rest of 2008, in broad terms, the plaintiff was not the same person as in previous years. She was listless and had lost the joy of life and would often spend the day in bed. Her role as a wife and mother dried right up. She was not the same confident, vibrant person. In the last four years, the family’s social life had dried up.
193 The plaintiff’s return to work in late 2008 was a fairly token effort, with her expected to go for three hours a week and not have contact with students or finance. She rang Mr Caldow at least once in tears, at School, not knowing whether to go inside or not. She was not ready to go back.
194 In February 2009, Mr Caldow had the awful task of telling the plaintiff that Carmel had suddenly died. In response, the plaintiff just collapsed. It was massive grief. It was totally unexpected and Carmel’s death just came out of the blue. On top of her listlessness, the plaintiff’s grief just magnified.
195 Mr Caldow was lost for words as to how he could he put into words how he felt about the loss of a son when Patty died later that year.
196 Probably ninety per cent of the time Mr Caldow takes the plaintiff to her appointments with Professor Keks in Melbourne.
197 Mr Caldow did not notice any change in the plaintiff after her first admission to Delmont. She was an inpatient for about three weeks and he insisted on her returning home as one of their sons was playing in the local football Grand Final. Even though the team won, the plaintiff was like a zombie watching the game.
198 Between admissions, Professor Keks was trying to find the right combination of medication but Mr Caldow did not notice any change in the plaintiff’s condition. He trusted Professor Keks’ advice that she undergo ECT during the second hospitalisation. From that time, Mr Caldow has felt the plaintiff is improving gradually but he is not sure whether she is improving or if he is just more accepting and accommodating.
199 In cross-examination, Mr Caldow confirmed financial concerns were and still are a concern for the family. Over the weekend of the first week of the 2008 school year, the plaintiff was very quiet with him. She spoke to her brother-in-law who was an ex-principal. Things were very strained between Mr Caldow and the plaintiff following the Friday conversation.
200 Mr Caldow confirmed he had made enquiries of Christina Ridge, who confirmed his understanding of the procedure with time reductions. He thought that the reduction could not really happen and that is why he asked the plaintiff if she had signed anything.
201 The plaintiff felt she was not required to attend School on the second Tuesday but Mr Caldow told her that was not correct, she was full time and she had to go every day. He was satisfied, having received the email from Christina Ridge, that nothing had been altered by the School at that time.
202 Mr Caldow confirmed he saw Mr Fletcher on 19 February 2008, and later that day received an email from him[26] thanking him for seeing him and offering to support the plaintiff and the family. That might have been the last time he had any contact with Mr Fletcher, but he thought Mr Fletcher did try to shake his hand at a principals’ conference on a later occasion.
[26]Exhibit 2
203 Mr Caldow did not take up Mr Fletcher’s offer of assistance. Until the plaintiff’s pay came in $100 short, there was nothing that caused him any concern about the plaintiff’s hours being reduced.
204 In re-examination, Mr Caldow explained he did not take up the offer of assistance because he was angry at Mr Fletcher for what he had done to the plaintiff. He felt Mr Fletcher was uncaring and had broken his duty of care to the plaintiff as a principal.
Kathryn Chessells
205 Kathryn Chessells described the plaintiff’s life before and after she suffered injury.
206 Mrs Chessells and the plaintiff have been very close friends for thirteen or fourteen years. Their husbands are the best of friends and their children are very good friends. They have always hit it off.
207 Before leaving the School, the plaintiff was the life of the party and was always confident and happy and involved with her children. She was very involved in the community and her work, and she was just a delight to be around.
208 The plaintiff was the pivot of her family. She organised everything, including socialising with Mrs Chessells’ family. The plaintiff was very much in control.
209 Mrs Chessells knew that the plaintiff worked in integration and she talked to her about her job a lot, and she was also pretty well respected. The plaintiff took every student and their interests separately and discussed the students with her.
210 The real awareness of the plaintiff having any problem was when Mrs Chessells was in the doctor’s surgery on a weekday at the beginning of February 2008 and the plaintiff came in looking unwell and advised that she was having problems at School and everything was getting on top of her.
211 Mrs Chessells told the plaintiff that she had to try and get better herself and forget about what was going on at the School, after the plaintiff told her she was concerned for her staff members, for her family, for everybody. The plaintiff agreed and seemed to take it on board.
212 Over the following weeks, the plaintiff was pale, shaky and started to lose a lot of weight. She was having difficulty going to the supermarket and doing the shopping. The plaintiff’s children were really confused and asked her what was happening. The plaintiff seemed to have lost all confidence with everything and in decision making. In the following weeks, she then started to put on weight. Taking antidepressants also upset her.
213 Mrs Chessells visited the plaintiff during the first admission at Delmont. She was sort of horrified because the plaintiff was in a room all by herself wrapped up in a ball. The plaintiff would not answer the telephone on later attempts to make contact.
214 Mrs Chessells saw the plaintiff at the local football Grand Final. The plaintiff then had a sort of glazed over look and just wanted to go home.
215 Mrs Chessells saw the plaintiff after her discharge following the second admission. They now try to see each other as often as they can but the plaintiff does not want to have contact. The plaintiff is embarrassed about how she looks and how she shakes. Mrs Chessells and her family try to go to the plaintiff’s house so the plaintiff is not required to leave her home and be put in an uncomfortable situation.
504 The plaintiff’s conduct, including her email on 4 February 2008, gave Mr Fletcher no indication she was in any way stressed or had any potential psychiatric illness as a result of the situation at that time. She clearly accepted the situation of a reduction to 0.8 referring to “on my day off”, and Mr Fletcher, from his perspective, received the email, indicating she accepted the situation, wanted a day off and was concerned about lunchtime.
505 I accept at that time, the plaintiff was then still putting on a strong front as the woman in charge and running the unit
506 Further, whatever the plaintiff may have said to Mr Fletcher, he had no knowledge she had not seen a doctor on the previous weekend, nor did she tell him about it. In any event, the first medical certificate issued by Dr Zhang on 7 February 2008 simply set out the plaintiff was receiving medical treatment and did not mention any stress or anxiety related to work
507 I accept the submission that with these background facts, the only conclusion that could be properly reached on the evidence was that it was far fetched and not foreseeable that the plaintiff would have suffered a psychiatric illness, because:
· she was a very experienced and very able teacher;
· she had been teaching since 1983 and in charge of the program since about 2000;
· she was a leader of the team and aides and had the responsibility for meeting budgetary requirements, and whilst staff excess may not have been as severe a problem as this year, it was something that occurred from year to year.
508 The plaintiff was in obvious good health at the time the events were said to have commenced, having just returned from Perth on holidays. As she said, she was well physically and mentally and that is how she would have presented to the School.
509 Counsel for the defendant conceded something clearly happened to the plaintiff, but irrespective of what happened at School, putting the plaintiff’s case at its very highest, it could not be said it was foreseeable she would suffer a psychiatric injury.
510 Further, it was submitted that if one looked for an explanation, and clearly the defendant was not required to do so, there is the evidence of the plaintiff’s genetic predisposition or vulnerability in light of her family situation – a matter certainly not known to the defendant.
511 Secondly, not only did the plaintiff have a pre-existing vulnerability, she had had some prior symptoms and signs unknown to the defendant, with the last reference to a visit to the general practitioner in August 2007.
512 Further, there were a number of other workplace stressors, many of which pre-existed or predated the commencement of the 2008 school year; namely the email issue with Mr Armstrong, which the plaintiff saw as a gross breach of confidence – another example it was submitted just showed her twisted view of the facts.
513 Another matter was integration aides being left out of staff meetings and that being a cause of anxiety to the plaintiff and her aides. Then by the end of the year, the plaintiff had lost two students and did not know why and that was of concern to her. She felt guilty the following year as being unable to greet the Year 7 students.
514 Further, it was submitted by counsel for the defendant that when considering the budget issue, an examination of the tenor of the plaintiff’s evidence revealed she thought things were so good with Mr Golding, but the situation changed with Mr Fletcher, describing him in derogatory terms, that she did not trust him and she called him a liar. This situation it was submitted could only lead to a conclusion that the plaintiff had an underlying concern for her position and autonomy within the integration program and the School and that she was concerned about the changed regime with the new principal.
Conclusion
515 Taking into account all the evidence, I accept that there was no reasonable risk of psychiatric injury to the plaintiff as a result of the events relating to budget and staffing events in the first week of the 2008 school year.
516 I accept it was unrealistic and totally unforeseeable and fanciful, the idea of a woman in a situation of obvious good health at the start of 2008, within a week of the start of that year, commencing a disabling psychiatric or indeed any psychiatric injury by reason of budgetary issues or whatever other factors were found to be associated with it. I accept the submission that that proposition is quite remarkable.
517 The actions of Mr Fletcher and/or Mr McDonald did not involve a foreseeable risk of psychiatric injury to the plaintiff.
518 In my view, bearing in mind the test laid down in Wyong Shire Council v Shirt,[75] a reasonable person in the position of the School, leading up to February 2008:
[75]supra
(a) would not have foreseen the timetabling issue may cause her psychiatric injury;
(b) would not have foreseen that the reduction in her work hours may cause a psychiatric injury.
519 I accept that a reasonable person in the position of the employer would not have foreseen the risk of psychiatric injury to the plaintiff, thus her claim in negligence must fail. No different issues have been raised in the context of breach of statutory duty.
520 The defendant had no reason to suspect that the plaintiff was at risk of psychiatric injury. There was no indication, explicit or implicit, of any particular vulnerability of the plaintiff. In my view, the plaintiff’s complaints may have been understood as suggesting an industrial relations problem and did not suggest danger to her psychiatric health.
521 On these findings, the plaintiff’s claim must fail.
522 As it was not reasonably foreseeable that the plaintiff would suffer psychiatric injury as a result of timetabling and budget issues at the School, it is not necessary to consider whether in the circumstances the defendant was obliged to take steps to reduce or minimise the risk of injury.
523 Further, it would not be appropriate to determine the question of breach of duty given my conclusion as to foreseeability in the content of the School’s duty. Similarly, it is inappropriate to try to deal with issues of causation when there are no findings of breach. Obviously, the question of damages does not then arise.
524 In all the circumstances, the plaintiff’s application must be dismissed.
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