Casey City Council v Seventh Day Adventist Church (Victorian Conference) Ltd
[2010] VSC 635
•18 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 01371 of 2007
| MARGARET ISABELLE REES | Plaintiff |
| v | |
| LUMEN CHRISTI PRIMARY SCHOOL | Defendant |
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JUDGE: | Robson J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 June 2010 | |
DATE OF RULING: | 18 June 2010 | |
CASE MAY BE CITED AS: | Rees v Lumen Christi Primary School | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 635 | |
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PRACTICE AND PROCEDURE – Amendment of particulars – Application that matters be taken away from jury as too difficult – Amendment of particulars allowed – Denial of application to take issues away from jury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D.G. Brookes SC with Mr J. Fitzpatrick | Stringer Clark |
| For the Defendant | Mr P.A. Scanlon SC with Mr P.B. Jens | Lander & Rogers |
HIS HONOUR:
The plaintiff, Mrs Rees seeks damages for physical and psychiatric damage she allegedly suffered through the negligence of the Lumen Christi Primary School whilst employed at the school in 2003. The plaintiff sustained a physical injury to her shoulder when she restrained a pupil. The psychiatric injuries are variously described, but are alleged to include depression and anxiety, and have led her to no longer being able to work. The school denies the allegations, but alleges that if it was negligent, then Mrs Rees was contributorily negligent.
Subject to documents being tendered on damages, the plaintiff and the defendant have both closed their cases. The school seeks an order that I take the matter away from the jury on two grounds. First, that evidence led has disclosed that the school has an insurer and, secondly, that the jury will have an impossible task as the plaintiff's case is that Mrs Rees developed a physical injury and then developed a psychiatric injury as a result, and that the legal principles to be applied by the jury about psychiatric damage are extremely complicated.
I also have before me an application to amend the particulars of contributory negligence and an application by the plaintiff to take that issue away from the jury.
Insurer
I will first of all deal with the issue of the insurer. Mr Scanlon, senior counsel for the defendant, claims that the mention of the insurance company, JLT, is to tell the jury that the school is insured and “Don’t worry about it”. I take that to mean that the jury will more readily find against the school as the school will not have to pay any damages claim, rather the insurance company will.
During Mr Scanlon’s re‑examination of Mrs McNamee, the principal of the school in 2003, Mr Scanlon asked Mrs McNamee how did she think she handled the whole situation concerning Mrs Rees and her experience as a teacher. Paraphrasing her actual evidence, Mrs McNamee said, amongst other things, that she would have preferred, once she realised the intensity of Mrs Rees’ concerns, to sit down and discuss the matter with Mrs Rees as reasonable people would do. She said that JLT insurance company made it difficult for her to seek reconciliation with Mrs Rees. She says she was instructed by the insurer not to do so, as the insurer would deal with it.
Mr Brookes, senior counsel for Mrs Rees, informed the Court in the absence of the jury that he had indicated to Mr Scanlon that it may be incumbent on the school to lead evidence about what the insurance company actually did to address Mrs Rees’ alleged psychological state. When Mr Scanlon made his application to take the case away from the jury on this ground, Mr Brookes explained how he proposed to use the reference to the insurer. He said he proposed to invite the jury to find that in 2003 Mrs McNamee did not wish to sit down with Mrs Rees to work through Mrs Rees' issues, as she claimed. He also intended to invite the jury to find that her evidence is in fact an admission that not enough was done by the school to address Mrs Rees’ psychiatric state at the time. And further, he will contend that Mrs McNamee’s reference to JLT insurance company was disingenuous because other evidence shows that Mrs McNamee was not acting in a way which indicated she wanted to sit down and discuss the matter with Mrs Rees.
Mr Scanlon relies on Baulch v. Lyndoch Warrnambool Inc,[1] where the Court of Appeal held that the defendant’s counsel’s reference to the plaintiff receiving WorkCover benefits for medical expenses and loss of income justified the ordering of a new trial. In that case, Bongiorno JA, with whom Neave JA and Byrne AJA agreed, said that counsel for the defendant had conveyed to the jury that:
“It had heard no evidence concerning medical expenses because everyone injured at work, even if by their own fault, is entitled to receive payments for their loss of income and their medical and like expenses. The plaintiff has been fully compensated for any loss brought about by her incurring medical expenses and loss of income. The plaintiff would continue to receive such compensation if she needed any further treatment in the future. The plaintiff is not happy with the payments of compensation she has received and wants a very large sum of money on top of those payments. The plaintiff is entitled to sue, but is not entitled to win.”
[1][2010] VSCA 30.
Bongiorno JA went on to say:
“The obvious argument being urged upon the jury is that the appellant is greedy; she should be content with her workers' compensation payments; her case is weak; she has been paid anyway and her claim should be dismissed.
…
The juxtaposition by defence counsel of a comment on the weakness of the appellant’s case with comments about her workers’ compensation entitlements can only have been calculated to distract the jury from a proper consideration of the legitimate issue before them, namely, whether the appellant had established negligence by the respondent as a cause of injuries which she received. The argument put by counsel was that she should not get damages because she had received and would continue to receive workers’ compensation; that the jury could safely find for the respondent, secure in the knowledge that the appellant had been and would be compensated in any event.”
In this case, no such inferences can be drawn. At most, the jury may draw the inference that the school was insured against a claim such as that made by Mrs Rees. Bongiorno JA referred to the High Court decision of Fitzpatrick v. Walter E Cooper Pty Ltd[2] as follows:
“In Fitzpatrick v. Walter E Cooper Pty Ltd, an industrial accident claim by a widow for herself and her children pursuant to Lord Campbell's Act, Dixon J characterised a reference by defence counsel to the plaintiff's workers’ compensation rights as a reference which 'could only contribute to the chance of error’.”
[2][1935] Vol 54 CLR 200.
In that case, the plaintiff’s counsel, in opening, had said that the action was the plaintiff’s only remedy for the loss she had suffered, and that the death of the worker had left them penniless. In his final address counsel for the defendant countered this statement by saying that a verdict for the defendant would not deprive the widow and children of their rights under the Workers Compensation Act. Upon the plaintiff’s counsel objecting, the trial judge told the jury to put the matter out of their minds as it had nothing to do with the case and, subsequently, answered a question from the jury foreman in similar terms. Dixon J considered that the trial had not miscarried because of counsel's introduction of the topic of workers compensation into his final address. He said that the court would be justified in setting aside the verdict only if, upon a proper consideration, the trial had miscarried. He referred to the manner in which counsel’s reference was made, the treatment it received at the hands of the trial judge and the nature and the dangers to which it left the appellant exposed as all being factors which had to be taken into account in deciding whether the trial had in fact miscarried. He thought that it had not in that case.
Recently in Dupas v The Queen,[3] the High Court recognised the remedial effect of adequate instructions to the jury. In the Dupas matter, Mr Dupas said he was entitled to a permanent stay of a murder charge on the basis of extensive pre‑trial adverse publicity of his other murder convictions, and of the evidence against him in this case. The High Court referred to the capacity of the trial judge to give relief against the unfair consequences of the pre‑trial publicity without staying the criminal proceedings by giving proper directions to the jury.[4]
[3][2010] HCA 20.
[4]Ibid, 22.
In my opinion, any reference to the insurer along the limited lines proposed by Mr Brookes on behalf of the plaintiff will not work a miscarriage of justice to the defendant, especially if proper directions are given to the jury and the reference goes no further than that proposed by Mr Brookes. I think it is also relevant to take into account that it was the defendant’s own witness that made the reference to JLT. The reference was not raised by either counsel for some forensic advantage in the trial. Such reference may well place the matter in a different light. I therefore decline to take the matter away from the jury on this basis.
Psychiatric injuries
I now deal with the psychiatric injuries issue. Mr Scanlon contends that the jury will have an impossible task as the plaintiff's case is that she developed a physical injury to her shoulder and then developed a psychiatric injury as a result. Mr Scanlon contends that the jury will have to work out the impossible task of whether or not the physical injury to her shoulder is a cause of the psychiatric injury. Mr Scanlon contends that in an ordinary personal injury case the jury is usually faced with the simple issue of whether the employer was negligent, where there is no issue that the risk was foreseeable, and there was little dispute about the standard of care that should be adopted by the employer in response to the risk. He says that as a matter of law I should instruct the jury that the defendant could not perceive the risk of psychiatric injury to Mrs Rees that was going to happen. He says the jury would be left with a claim for damages to her right shoulder. He says that it cannot be said in this case that the injury to the right shoulder is causative of psychiatric injury. Mr Scanlon says that the jury is going to have to grapple with an impossible situation “a situation of, ‘well, she did hurt her shoulder, so we will award damages for that’, but they ought to be directed there was no foreseeability in terms of psychiatric injury”. He contends that that being the case, the jury should not be in a position to hear this case.
Mr Scanlon points out in this case that the plaintiff claims she has suffered two separate injuries, a shoulder injury and psychiatric injuries, which should be considered separately. The plaintiff has pleaded, in paragraph 4, that:
“On 13 June 2003, whilst in the course of her employment with the defendant at the school, the plaintiff when endeavouring to restrain an aggressive and violent student suffered physical and psychological injury.” (the restraint)
In paragraph 5:
“Subsequent to the restraint, the plaintiff was required to undertake duties in the course of her employment and subjected to the direction of the principal which aggravated the injuries suffered in the restraint.” (the work directions)
In paragraph 6:
“The restraint and the work directions caused the plaintiff injury. The particulars of injury are the injuries were injury to the right shoulder, injury to the back, injury to the neck, multiple bruising and development of major depressive disorder with anxiety resulting in, inter alia, nausea, lack of energy, social withdrawal, excessive alcohol intake for a period, hypervigilant, insomnia, eating disorder and disturbance in libido.”
The directions to the jury will need to cover the test laid down in Wyong Shire Council v. Shirt,[5] per Mason J, where he said:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far‑fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
[5][1980] 146 CLR 40.
As to the psychiatric injury, Mr Scanlon says the plaintiff claims that she developed a psychiatric injury as a result of a physical injury. He says the jury will have to apply the test laid down in Wyong as approved by the High Court in Koehler v Cerebos (Australia) Ltd.[6] Accordingly, he says the jury will have to consider whether a reasonable person in the position of the school would have foreseen that its conduct involved a risk of psychiatric injury to the plaintiff or to a class of persons including Mrs Rees as a result of suffering a physical injury. In Koehler, the Court considered whether the employer should have foreseen that the employee, in carrying out her onerous duties put her psychiatric health at risk. The Court approved the decision of the court below that found that the risk of such a psychiatric injury was not foreseeable. In that case the plaintiff’s onerous duties were said to be a cause of her psychiatric illness.
[6][2005] CLR 44.
If the jury decides the question of foreseeability in the affirmative, they will have to decide what was the content of the duty of care to respond to that risk and, finally, whether that standard of care was observed. Mr Scanlon points to the wide range of relevant facts that the High Court has said that ought to be taken into account in determining the content of the duty of care and the various factors that have to be taken into account in determining whether the risk of psychiatric injury was foreseeable.
In relation to the content of the duty of care, the High Court said:
“The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one to another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions. (This last class may require particular reference not only to industrial instruments but also to statutes of general application such as antidiscrimination legislation.) Consideration of those obligations will reveal a number of questions that bear upon whether, as was the appellant’s case here, an employer’s duty of care to take reasonable care to avoid psychiatric injury requires the employer to modify the work to be performed by an employee. At least the following questions are raised by the contention that an employer’s duty may require the employer to modify the employee’s work. Is an employer bound to engage additional workers to help a distressed employee? If a contract of employment stipulates the work which an employee is to be paid to do, may the employee's pay be reduced if the employee’s work is reduced in order to avoid the risk of psychiatric injury? What is the employer to do if the employee does not wish to vary the contract of employment? Do different questions arise in cases where an employee’s duties are fixed in a contract of employment from those that arise where an employee’s duties can be varied by mutual agreement or at the will of the employer? If an employee is known to be at risk of psychiatric injury, may the employer dismiss the employee rather than continue to run that risk? Would dismissing the employee contravene general antidiscrimination legislation?
No doubt other questions may arise. It is, however, neither necessary nor appropriate to attempt to identify all the questions that could arise or to attempt to provide universal answers to them. What is important is that questions of the content of the duty of care, and what satisfaction of that duty may require, and not to be examined without considering the other obligations which exist between the parties.”
Further, in considering whether a reasonable person in the position of the employer would have foreseen that his conduct involved the risk of psychiatric injury to the plaintiff, the High Court said it was relevant to consider that the appellant had agreed to perform the duties which were a cause of her injury and that the employer had no reason to suspect that the appellant was at risk of psychiatric injury.
There is substance to Mr Scanlon’s submission. The jury is going to need detailed directions to ensure that they take into account the matters that in Koehler the High Court has said must be considered. I have not heard full submissions on the questions to be asked to the jury. It may be the jury will have to consider the physical injury of the shoulder by itself. The jury may then have to address the psychological injury alleged to have been sustained by the restraint on 13 June, and then whether that injury was aggravated by the subsequent work directions. In each case I expect the jury may have to apply the Wyong tests.
It appears to me that the plaintiff has also conducted her case on the basis that a cause of her psychological injury was the response of the school to her psychological state consequent upon the restraint, and the response of the school to her psychological state consequent upon her own reaction to the restraining event and other subsequent events, including Kodie's uncle story and Mrs Rees' contact with the parents. I am yet to hear submissions on whether or not those issues are raised by the pleadings, and how the jury should be instructed to deal with them.
Accordingly, the jury will need to consider the issue of foreseeability of risk of psychiatric injury to Mrs Rees; secondly, if there was such a risk, the content of the duty of care that arose as a consequence of that risk; and thirdly, whether the school met that standard of care in responding to the risk. The jury may also have to consider those questions before the restraint, and also in relation to the work directions. As I have said, I have yet to hear submissions on those matters.
Bearing in mind the High Court’s decision in Koehler, and the various issues in this case, I accept that the jury’s task will not be easy. In my view, despite those difficulties, I believe that with appropriate directions a jury should be able to address the matters raised by the High Court in Koehler and apply them to the matters raised in this case. I do not accept that the jury's task is impossible. I decline to remove the matter from the jury.
Contributory negligence.
Mr Scanlon seeks to amend the particulars of contributory negligence to delete the existing particulars, save (d), and add to it:
“…in that the plaintiff failed to advise the defendant that she was under any stress in the course of her employment”.
Mrs Rees opposes the amendment and says that if it is permitted it should be withdrawn from the jury. The plaintiff says that no reasonable jury properly instructed could find contributory negligence as alleged. As to whether the amendment should be allowed, I will allow the amendment for the following reason. First, I find my discretion to allow the amendment is enlivened under Rule 36.01 of the Supreme Court (General Civil Procedure) Rules 2005, as in my opinion the amendment proposed is for the purposes of determining the real question in controversy between the parties to the proceeding. Since the day the trial started, the school has raised the issue of Mrs Rees’ failure to tell the school authorities that her personal welfare was being affected by events in the classroom.
Further, the defendant has also sought to establish that Mrs Rees was receiving professional counselling for stress she was under for other matters not relating to the school. These issues are likely to be relied upon by the school to establish that the risk of psychiatric injury was not foreseeable or, if foreseeable, affects the content of the duty of care.
Further to this is the issue that the conduct of the plaintiff in not disclosing those matters, and continuing to undertake activities at the school, may have contributed to her aggravating any psychiatric injury she suffered.
The plaintiff claims it is prejudiced and it has not had time to address the issue. In my opinion, the plaintiff has been addressing the issue as the case has progressed when the defendant has raised the issue of Mrs Rees’ nondisclosure. In my discretion I will therefore allow the amendment.
Mrs Rees submits that I should withdraw the issue of contributory negligence from the jury. Mrs Rees says that no reasonable jury properly instructed could find contributory negligence. If the jury found that Mrs Rees was stressed and had not informed her employer of her stress, then in my opinion it is open to the jury to find that Mrs Rees’ own negligence in not informing her employer of her stressful state contributed to her injuries. I do not propose to withdraw that issue from the jury.
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