Ducker v The State of Western Australia
[2006] WASCA 93
•31 MAY 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DUCKER -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 93
CORAM: WHEELER JA
BUSS JA
HEARD: 7 APRIL 2006
DELIVERED : 31 MAY 2006
FILE NO/S: CACV 33 of 2006
BETWEEN: KENNETH ADRIAN DUCKER
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WISBEY DCJ
Citation :DUCKER -v- THE STATE OF WESTERN AUSTRALIA [2006] WADC 34
File No :CIVO 6 of 2006
Catchwords:
Limitation of actions - Crown Suits Act 1947 (WA) - Application for leave to commence action against employer - Delay of approximately five years - Application refused by primary Judge on the ground that the applicant's case was "less than speculative" - The meaning of "merely speculative" in the context of "mala fides or merely speculative or absurd" - Whether the primary Judge had regard to all relevant evidence - Whether the primary Judge gave adequate reasons - Whether leave to appeal should be granted and, if so, whether the appeal should be allowed
Legislation:
Crown Suits Act 1947 (WA), s 6(3)
District Court of Western Australia Act 1969 (WA), s 79(1)(b)
Limitation Legislation Amendment and Repeal Act 2005 (WA), s 8
Result:
Leave to appeal granted
Appeal allowed
Leave granted, on conditions, under s 6(3) of the Crown Suits Act 1947 (WA)
Category: B
Representation:
Counsel:
Applicant: Mr J G Staude
Respondent: Mr L Chiat
Solicitors:
Applicant: Ilberys Lawyers
Respondent: Phillips Fox
Case(s) referred to in judgment(s):
City of Gosnells v Roberts (1991) 74 LGRA 1
Dodoro v Knighting (2004) 10 VR 277
Gardner v Caporn [2005] WASCA 153
House v The King (1936) 55 CLR 499
The Minister for Community Welfare v Bennett, unreported; FCt SCt of WA; Library No 5060; 2 September 1983
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Victorian Railway Commissioners v Casaccio [1961] VR 157
Wilson v Metaxas [1989] WAR 285
Case(s) also cited:
Allen v The State of Western Australia [1999] WADC 52
Barber v Somerset County Council [2004] 2 All ER 385
Bingham v England (1996) 17 WAR 226
Carr v Finance Corporation of Australia Limited (1981) 147 CLR 246
Commissioner of Main Roads v Highway Construction Pty Ltd [2001] WASCA 158
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374
Hall v Nominal Defendant (1966) 117 CLR 423
Hatton v Sutherland & Ors [2002] 2 All ER 1
Koehler v Cerebos (Australia) Limited (2005) 79 ALJR 845
Licul v Corney (1976) 180 CLR 213
Mannall v New South Wales [2001] NSWCA 327
Mayne v Mayne Nickless Ltd, unreported; FCt SCt of WA; Library No 960223; 26 April 1996
New South Wales v Mannall [2005] NSWCA 367
O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7
Pascoe v Nominal Defendant (Qld) (No 2) [1964] Qd R 373
Perry v City of Armadale [2004] WASC 167
Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18
Standard Discount Co v La Grange (1877) 3 CPD 67
State of New South Wales v Seedsman [2000] NSWCA 119
Swain v Waverley Municipal Council (2005) 220 CLR 517
Tame v New South Wales (2002) 211 CLR 317
TK v Australian Red Cross Society (1989) 1 WAR 335
Wyong Shire Council v Shirt (1980) 146 CLR 40
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Buss JA. I agree with those reasons and have nothing to add.
BUSS JA: By an originating summons filed in the District Court on 25 January 2006 and amended on 3 March 2006, the applicant made application under s 6(3) of the Crown Suits Act 1947 (WA) for leave to bring an action against the State of Western Australia, claiming damages for personal injury allegedly suffered by him in consequence of the negligence, further or alternatively the breach of contract, further or alternatively the breach of statutory duty, of the respondent between about March 2000 and November 2000 inclusive.
On 15 March 2006, Wisbey DCJ refused to grant leave and dismissed the application.
The nature of the applicant's alleged claim
The applicant's application was supported by an affidavit which he swore on 23 January 2006. The applicant also relied on an affidavit sworn by his solicitor, Danielle Alice Winzenried, sworn on 13 February 2006. The respondent relied on an affidavit of Donald Alfred Boyd, an employee of the Department of Education and Training, sworn on 15 March 2006.
The applicant alleges, relevantly:
(a)In 1992 the applicant was employed by the respondent as a graphic designer, level 2.
(b)In about 1996 the applicant's position with the respondent was reclassified to graphic designer, level 3.
(c)In 1997 the applicant suffered from some distressing events in the course of his employment with the respondent, including:
(i)conflict with three project managers employed by the respondent; and
(ii)an excessive workload between July and December 1997.
A series of meetings in 1997 with various representatives of the respondent added to his stress.
(d)On or about 28 April 1998, the applicant commenced sick leave as a result of stress suffered by him in the workplace.
(e)On or about 12 June 1998, the applicant made a claim for workers' compensation against the respondent in which he alleged he had suffered "stress caused by overwork and continual disagreement with some middle managers".
(f)On 10 and 18 September 1998, the applicant was examined by Dr Peter Burvill, a consultant psychiatrist. In a report dated 22 September 1998 Dr Burvill said, relevantly:
(i)"Since July 1997 [the applicant] has had a progressively increasing generalised anxiety disorder with many symptoms of depression."
(ii)"[The applicant] will require ongoing treatment for his psychiatric condition, until he is well settled in work, and his symptoms are brought under control. Depending upon the success of his rehabilitation back into the workforce, he is likely to require such treatment for at least the next six months, possibly a little longer."
(iii)"In my opinion his psychiatric condition is caused to a significant degree by stress in the workplace. There is no previous history of psychiatric illness. … The recurrence of his stress, psychiatric symptoms and his going on sick leave in April 1998 were definitely precipitated by the return of two project managers, especially by the appointment of one of those project managers as acting manager."
(iv)"There should be a good prognosis for the future, providing that a satisfactory work arrangement can be arranged prior to his return to work. The latter events would be essential."
(v)"He is fit to return to his previous work, providing he continues to remain under treatment for his psychiatric symptoms, and providing that satisfactory arrangements can be made to minimise stress in the workplace. It appears that arrangements are being negotiated to achieve the latter. [The applicant] is keen to return to work under these conditions."
(g)On or about 19 October 1998, the respondent agreed, on a without prejudice basis and without admission of liability, to pay the applicant's medical expenses from 28 April 1998 to 31 October 1998, and to reimburse 14 weeks sick leave from 10 June 1998.
(h)In about May 1998, the applicant had a meeting with representatives of the respondent. At the meeting it was agreed that upon the applicant's return to work, he would be relocated to a building known as "the South Building", so that he would not have any contact with the people located in a building known as "the Curriculum Design Centre Building" ("the CDC") who had caused him stress.
(i)On 11 January 1999, the applicant returned to work. He was located initially in a building known as the "Central Building" and, one month later, was relocated to the South Building.
(j)On or about 24 February 2000, the applicant received a letter from Mr Boyd on behalf of the respondent, informing him that his position as a graphic designer was to be abolished, as part of a restructure, and that he would be redeployed.
(k)On or about 9 March 2000, the applicant had a meeting with representatives of the respondent to discuss his redeployment. The applicant became increasingly stressed about his proposed redeployment and was concerned that he might be required to return to work in the CDC.
(l)On or about 6 April 2000, the applicant wrote to Mr Boyd and informed him that he was willing to relocate to the CDC, if required, provided that reasonable care was taken to accommodate his medical condition.
(m)On or about 10 April 2000, the applicant received a letter dated 10 April 2000 from Mr Boyd. The letter was, relevantly, in these terms:
"As I indicated in my correspondence dated 24 February 2000, your options were detailed in the documentation provided to you by Ms Langdale and myself. … To recap, in addition to the options outlined, the new Level 2 position created in the restructure of the Curriculum Design Centre is available to you. If you accept that position your present salary would be maintained for twelve (12) months.
…
I must advise you that should you not have made a decision with respect to your preference by 26 April 2000, the Department will proceed to determine this matter.
…"
(It appears that the correspondence dated 24 February 2000, referred to in the passage which I have cited, explained to the applicant that there were several options available to him in relation to redeployment, including options within other directorates and divisions of the Public Service.)
(n)Upon receipt of the letter dated 10 April 2000 the applicant "immediately felt ill and started shaking".
(o)On 11 April 2000, the applicant lodged a "Recurrence of Disability Form" with the workers' compensation insurer, RiskCover, in which he identified the nature of his disability as "work related stress to post traumatic stress" and stated that the date of his original disability was 28 April 1998.
(p)On or about 28 April 2000, the applicant received a letter from Mr Boyd which informed him that in consequence of the applicant not having selected one of the options made available to him in respect of his redeployment, the respondent had determined that the applicant should recommence employment within the CDC, on a temporary basis, as a Level 2 Graphic Artist. According to the applicant:
"As soon as I realised that I may have to move back to the CDC I began to feel sick and suffered from panic attacks."
(q)The applicant alleges that:
"Between April 2000 and October 2000 I was involved in a series of meetings with various representatives of the [respondent] in which I was continually directed to return to the CDC. Throughout the period April 2000 to October 2000 I maintained my reluctance to return to the CDC, which was the scene of my previous workers' compensation claim. I was very concerned that if I had to return to the CDC I would be subject to the same sort of bullying and personal attacks that had led to me sustaining a stress condition in 1998."
(r)The applicant was unable to work from 19 June to 21 June 2000 and from 7 July to 11 August 2000 due to his "escalating stress at the thought of returning to the CDC."
(s)On or about 20 July 2000, the applicant attended another meeting with Mr Boyd. According to the applicant:
"I found the meeting to be very distressing, particularly as he advised me that he wanted me to return to the CDC. I told Mr Boyd that I was very distressed about the proposed return to the CDC as I found it to be a hostile environment and was concerned about the impact of returning to the CDC upon my mental health."
(t)On or about 27 July 2000, the applicant received a letter dated 27 July 2000 from Mr Boyd. The letter was, relevantly, in these terms:
"As we discussed at our meeting of Thursday 20 July, the Level 2 position is with the CDC. It is imperative that the person working in the position be located within the CDC building. This is not negotiable.
The agreement at the meeting of Thursday 20 July is that with support from Worklink, you will shift back to the CDC building within a month.
It is important to stress again that unless you are prepared to move to the CDC, the Level 2 position is not available to you."
(u)On 4 August 2000, the applicant informed Ms Selvina Bustello, a rehabilitation officer employed by the respondent, that his general medical practitioner had advised him that it was not desirable for him to return to work at the CDC.
(v)By letter dated 25 September 2000, the applicant wrote to a representative of the respondent. The letter said, relevantly:
"Chris Stone, Project Manager CDC entered my room at 9.35 am [on 25 September 2000]. Chris informed me he had been directed to move me into the CDC. On a number of previous occasions I have stated to Chris:
1.The CDC is a hostile environment created by the previous management.
2.I believed at least one member and friend of the previous management and a member of Chris' team is hostile.
3.My fear of retribution by some CDC staff for the departure of the previous management.
4.I am suffering from a work related medical condition.
5.I have been diagnosed by a medical team as suffering from work‑related panic attacks.
I spoke to you again at 10.10 am, I was in a distressed state, suffering from a panic attack, shaking, trembling and my heart was racing …"
(w)On or about 25 or 26 October 2000, the applicant received a letter dated 24 October 2000 from Mr Boyd which directed him to report for work at the CDC on 30 October 2000. The letter said:
"As previously discussed your place of employment is in the Curriculum Design Centre (CDC).
As of Monday 30 October you will be working in the CDC. Please report to Ms Adele Bradley at 8.15 pm [sic] on Monday 30 October.
All your personal belongings need to be removed from your desk and temporary work area by close of business Friday 27 October, as that area will be cleared.
You have previously indicated that for health reasons you may find it difficult to work in the CDC. If this is still the case on Monday 30 October you are expected, as any other employee would be, to take sick leave."
According to the applicant, immediately upon receipt of this correspondence, he "felt extremely ill, was shaking and suffered a panic attack".
(x)On 29 November 2000, the applicant lodged with RiskCover a further "Recurrence of Disability Form" in which he asserted that he was suffering from "stress developing into a panic disorder". The applicant identified the date of the original disability as 28 April 1998. He stated that "a series of incidents directly related to work" which occurred between 28 April 1998 and 25 October 2000 caused "a new illness" to develop.
(y)On 5 May 2000, the applicant commenced proceedings in the Conciliation and Review Directorate of WorkCover for the purpose of having liability determined in respect of his claim.
(z)Between 6 and 16 February 2001, the applicant's application for a determination of liability was heard by Review Officer Boon. Ms Boon dismissed the application.
(za)Thereafter, the applicant continued to be treated by his general medical practitioner and also by Dr Burvill.
(zb)On 5 February 2003, the applicant lodged a further application with WorkCover. This application sought a reconsideration of Ms Boon's decision. The applicant relied upon reports dated 29 January 2003 and 21 April 2003 from Dr Burvill.
(zc)On 24 February 2005, Ms Boon made orders in relation to the applicant's application for reconsideration of her earlier decision, as follows:
(i)The applicant did, in April 2000 and October 2000, suffer a "disability", as defined in the Workers' Compensation & Injury Management Act 1981 (WA), "having regard to the new information provided";
(ii)Her earlier orders dismissing the applicant's application were revoked; and
(iii)The nature of the disability suffered by the applicant was "generalised anxiety disorder with agoraphobia".
(zd)On 7 December 2005, Review Officer Warwick determined that the applicant's relevant level of disability was not less than 30 per cent. Mr Warwick expressed his conclusion as follows:
"The lay evidence and that of Drs Burvill, De Felice and Tannenbaum satisfy me that an appropriate impairment rating of the worker's psychiatric condition is 40. I find that such an impairment rating justifies and supports a finding that the worker has a psychiatric disability of not less than 30%. I therefore determine that the relevant level of the worker's disability is not less than 30%."
The affidavit relied on by the respondent
In late 1999, the Department of Education and Training commissioned an independent organisation known as "Dillinger Group Development" ("Dillinger") to conduct a review of the CDC. On 17 November 1999, Dillinger produced a report. It made various recommendations in relation to positions at the CDC, including the abolition of the applicant's position of graphic designer level 3.
Mr Boyd deposes in his affidavit, relevantly, as follows:
"15On or about 24 February 2000, I wrote a letter to Mr Ducker advising him that his position was to be abolished on 22 February 2000 [sic]. … I pointed out to the plaintiff that there were a number of options open to him in relation to redeployment including options within other directorates and divisions across the public sector. Although I do not have a copy of the document which I referred to in paragraph 4 of this letter my recollection is that the document was a standard set of instructions/advice given to all public servants who had been made redundant.
16On 9 March 2000, I met with Mr Ducker to discuss his redeployment. This was one of numerous meetings held with Mr Ducker and my precise recollections of it are unclear. He would have had his Union representative at the meeting and I had a representative from IR to assist me explain all the options available to him. I recall that some time was spent explaining to Mr Ducker that under the new structure he needed to be part of a project team with responsibility for a discrete set of projects. Working away from the team and in a different location on the campus was not an option for the team. Further more this option had been tried in the past and was not successful. I believe also that Mr Ducker had some reservations about working in the CDC building because of an issue he had with another employee in that building. I seem to recall that it was explained to Mr Ducker that his team had no association with the person he had issue with and as the CDC building was large, that the physical separation between them in the same building was considerable. As with all meetings with Mr Ducker during this lengthy process, DET always provided him with every support to either adjust to his new work environment within the CDC or support him in his relocation to another work site within the public service.
17On or about 10 April 2000, I wrote a letter to Mr Ducker advising him, inter alia, that his decision as to which option he preferred by way of redeployment was required by 26 April 2000. I did not direct him in any way as to how or where he should be choosing. …
18On 20 April 2000, SIDE received a facsimile transmission from Mr Ducker … stating,
'I lodge a grievance against the abolishment of my position and the classification accorded the new position'.
19On 26 April 2000, the plaintiff attended a meeting with me and other representatives of the defendant. To the best of my recollection and belief the plaintiff declined to select any of the options that were made available to him.
20The plaintiff stated that he had instituted grievance procedures against the defendant at the Industrial Relations Commission and would not choose to be redeployed.
21The plaintiff was informed that the restructure was a different issue to that of the plaintiff's grievance. …
22On 28 April 2000 I wrote to the plaintiff pointing out that, as he had not made an election to be redeployed, he would be appointed to the newly created level 2 position within the CDC. I also informed him that while he could remain in his present location until the end of Semester One of that year, I envisaged that he would have to relocate to the CDC Building from about 17 July 2000 as all other new applicants would be commencing on that date. …
23At no time did I advise Mr Ducker that his only employment option involved him returning to work in the main CDC building. This was only required if Mr Ducker elected to remain working at the CDC, as opposed to one of the other available options."
Section 6 of the Crown Suits Act 1947(WA)
Section 6 of the Crown Suits Act 1947 (WA), as it was immediately before the commencement of the Limitation Legislation Amendment and Repeal Act 2005 (WA), provided, relevantly:
"(1)Subject to the provisions of subsections (2) and (3), no right of action lies against the Crown unless -
(a)the party proposing to take action gives to the State Solicitor, as soon as practicable or within 3 months (whichever of such periods is the longer), after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and the name and address of the party and his solicitor or agent; and
(b)the action is commenced before the expiration of one year from the date on which the cause of action accrued,
and for the purposes of this section where the act, neglect, or default on which the proposed action is based is a continuing one, no cause of action in respect of the act, neglect or default accrues until the act, neglect or default has ceased but the notice required by paragraph (a) may be given and an action may thereafter be brought while the act, neglect or default continues.
…
(3)(a) Notwithstanding the foregoing provisions of this section application may be made to the Court having jurisdiction to hear the action when the application is granted for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the Crown.
(b)Where the Court considers that the failure to give the notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the Crown is not materially prejudiced in its defence or otherwise by the failure or delay, it may if it is just to do so, grant leave accordingly subject to such conditions as it thinks it is just to impose.
(c)Before an application is made under the provisions of paragraph (a) the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the State Solicitor, at least 14 days before the application is made.
…"
Section 8(1) of the Limitation Legislation Amendment and Repeal Act 2005 repealed s 6 of the Crown Suits Act. Section 8(2) contained a savings provision with respect to s 6, in these terms:
"The Crown Suits Act 1947 section 6, as it was immediately before commencement day, continues to apply to causes of action that accrued before commencement day as if subsection (1) had not been enacted."
If the applicant has a cause of action against the respondent, the cause of action accrued before the commencement day (that is, before 15 November 2005) and, in consequence, s 6, as it was immediately before the commencement day, applies to that cause of action.
By s 6(3)(b) of the Crown Suits Act, the Court may, if it is just to do so, grant leave, subject to such conditions as it thinks it is just to impose, where the Court considers that:
(a)the failure to give notice as required by s 6(1) or the delay in bringing the action, as the case may be, was occasioned by mistake; or
(b)the failure to give the notice or the delay in bringing the action, as the case may be, was occasioned by any other reasonable cause; or
(c)the Crown is not materially prejudiced in its defence or otherwise by the failure or delay.
In Victorian Railway Commissioners v Casaccio [1961] VR 157 the Full Court of the Supreme Court of Victoria considered the proper construction and application of s 34(4)(b) of the Limitation of Actions Act 1958 (Vic) which was, in material respects, identical in substance to s 6(3)(b) of the Crown Suits Act. Lowe, Gavan Duffy and Sholl JJ said, at 160:
"Mr Brooking also contended that the order below should be set aside because it was not just to grant it, and he repeated before us his argument that there was no prima facie proof of agency or negligence on the part of the person alleged to have been driving the crane which injured the respondent. We think that there probably was such evidence, but even if there was not, it is not essential for an applicant under s 34(4) to show a prima facie case of liability. In other words, the fact that he does not do so does not mean that it must be held to be unjust to give the leave sought. It may be a material consideration that such proof appears, and a sufficient ground for holding that it is just to grant leave, and that was all that Sholl J said in Akermanis' Case, supra, at p 116. On the other hand, it may be quite enough if it appears that the claim is not mala fide, nor merely speculative or absurd. All that the applicant seeks is leave to institute proceedings, with all the risks which attend the suit of any plaintiff. It is no doubt true that the reference in the subsection to the 'justice' of an order gives the court a power which it has not got in the case of an ordinary writ, to refuse leave if the action is, eg, a 'try‑on' (to use a popular phrase). But the view that every applicant must prove a prima facie case of liability is misconceived and would impose an altogether unreasonable burden on applicants. It might in some cases involve a very lengthy and difficult task."
Those observations were approved by the Full Court of the Supreme Court of Western Australia in The Minister for Community Welfare v Bennett, unreported; FCt SCt of WA; Library No 5060; 2 September 1983. In Bennett, Burt CJ (with whom Rowland J agreed) said, at page 3, in the context of s 47A(3)(b) of the Limitation Act 1935 (WA), which was, in material respects, identical in substance to s 6(3)(b) of the Crown Suits Act:
"It has been held by the Full Court of the Supreme Court of Victoria in Victorian Railways Commissioner v Casaccio, [1961] VR 157, that a finding that it is 'just' to make an order granting leave is not conditioned by the applicant for leave satisfying the Court that he has 'a prima facie case of liability'. Leave will be refused if the Court is of the positive opinion that the applicant has no case or, as it is put in the Victorian decision to which I have referred, that the Court is of the opinion that it is a 'try‑on', but subject to that, once the application is brought within sub‑s (3)(b) 'it may be quite enough if it appears that the claim is not mala fides or merely speculative or absurd'."
See also City of Gosnells v Roberts (1991) 74 LGRA 1 at 8.
The term "try‑on" means "an attempt to hoodwink or test the patience of someone". See "The Macquarie Dictionary", 4th ed, 2005, page 1510.
The words "merely speculative", in the expression "mala fides or merely speculative or absurd", take colour from their association with the words "mala fides" and "absurd". The characterisation of proposed proceedings as "merely speculative" connotes that, on the evidence before the court, the alleged cause of action has insignificant prospects of success, and the applicant's desire to commence the proceedings is probably explicable on the basis that:
(a)he or she is misguided in relation to the facts or the law;
(b)further or alternatively, he or she is hoping that the proceedings will elicit an offer of settlement, or culminate in a judgment, in an amount which would justify the financial and other risks of the litigation.
The learned Judge's reasoning
The applicant conceded before the learned Judge that the delay between the accrual of his alleged cause of action and the filing of the application for leave was not occasioned by mistake.
The learned Judge held, at [14]:
"Having regard to [the applicant's] awareness of the provisions of the Limitation Act and by analogy the Crown Suits Act, the delay is neither reasonable nor excusable."
The learned Judge then considered whether, in terms of s 6(3)(b), the respondent is "materially prejudiced in its defence or otherwise" by the applicant's failure to give notice as required by s 6(1) or by the delay in commencing proceedings. His Honour decided, at [15], that, in the circumstances, the respondent was not materially prejudiced. The learned Judge then addressed himself to the issue of whether it was just to grant leave, and said, at [16]:
"The issue therefore is whether it is just in all the circumstances to grant leave to the [applicant] to commence common law proceedings against the [respondent]. In Perry v City of Armadale [2004] WASC 167 Le Miere J reviewed the authorities and concluded that it was not necessary for an applicant, in the position of [the applicant before his Honour], to establish a prima facie case before leave could be granted, it being sufficient, if it appeared that the proposed action was 'not mala fide or merely speculative or absurd'. Although this is not a trial of the issue by affidavit, I am satisfied on the material before me that the [applicant] would have little prospect of establishing the cause of action that he asserts. It is less than speculative. In the result I am not prepared to grant leave."
The learned Judge's decision was interlocutory: leave to appeal is required
An order refusing leave to commence proceedings is interlocutory. See Dodoro v Knighting (2004) 10 VR 277 at 279 [3], [6], 283 [23], 285 [32], and 287 [43].
The learned Judge's refusal to grant the applicant leave was therefore interlocutory, and the applicant requires leave to appeal. See s 79(1)(b) of the District Court of Western Australia Act 1969 (WA).
In general, an applicant for leave must demonstrate that the relevant decision was wrong or at least attended with sufficient doubt to justify the grant of leave, and that substantial injustice would occur if the decision were left unreversed. See Wilson v Metaxas [1989] WAR 285 at 294. It must be emphasised, however, that these are not rigid or exhaustive requirements, and leave may be granted if, in all the circumstances, it is in the interests of justice that leave be granted. See The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 56 ‑ 57.
The proposed ground of appeal
The applicant's proposed ground of appeal is as follows:
"Having found that the respondent was not materially prejudiced by the [applicant's] delay, the learned Judge erred in holding that it would nevertheless not be just to allow the application for the sole reason that:
'[T]he plaintiff would have little prospect of establishing the cause of action that he asserts. It is less than speculative.'
when, on the affidavit evidence before the Court:
(a)the [applicant's] claim for damages was based on three causes of action, namely, negligence, breach of contract and breach of statutory duty;
(b)the facts and merits of the [applicant's] causes of action were not susceptible to summary judgment;
(c)it was not reasonable to conclude that any or all of the proposed causes of action were speculative or 'less than speculative'; and
(d)it could not reasonably be found that there was no real question to be tried or that the claim was so obviously untenable that it could not possibly succeed;
and the exercise of the learned Judge's discretion thereby miscarried."
The relevant principles governing appellate review
The learned Judge's decision to refuse a grant of leave under s 6(3)(b) of the Crown Suits Act involved the exercise of a judicial discretion. The principles governing the circumstances in which an appellate court may review the exercise of a judicial discretion are well established. In House v The King (1936) 55 CLR 499 at 504 ‑ 505, Dixon, Evatt and McTiernan JJ said:
"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
Did the learned Judge make an error of law?
The learned Judge set out, in [8] of his reasons, what he described as the "relevant history" for the purposes of determining the application. His Honour did not, however, in [8] or elsewhere in his reasons, refer to any of the facts and circumstances which occurred between on or about 28 April 2000 and 29 November 2000 (apart from the proceedings commenced on 5 May 2000 in the Conciliation and Review Directorate of WorkCover). See par 5(p) ‑ (x) above.
The facts and circumstances which occurred between on or about 28 April 2000 and 29 November 2000 were relevant matters which the learned Judge was obliged to take into account in determining the application. His Honour's failure to refer to those facts and circumstances (apart from the proceedings commenced on 5 May 2000) in his recitation of the "relevant history" or elsewhere, indicates that they were not taken into account.
The learned Judge concluded, at [16], that the applicant had little prospect of establishing his alleged cause of action and that the alleged cause of action was less than speculative. His Honour did not, however, give any reasons to support these conclusions beyond a general reference to "the material before [him]".
A judicial officer's failure to give adequate reasons may constitute an error of law. In Gardner v Caporn [2005] WASCA 153, Steytler P observed, at [22]:
"I should add that even if, contrary to the conclusion at which I have arrived, the Magistrate might be taken to have ruled, impliedly, that the appellant's belief was unreasonable, he had an obligation to say upon what basis he reached that conclusion. It is well accepted that, where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for a decision must be apparent. The losing party cannot otherwise know whether there has been a mistake of law or of fact: Carlson v King (1947) 64 WN (NSW) 65 at 66; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 - 388, per Moffitt JA, with whom Manning JA agreed; Lloyd v Faraone [1989] WAR 154 at 162 - 163, per Malcolm CJ; Garrett v Nicholson (1999) 21 WAR 226 at 248; and Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at 282 - 283. I would consequently allow the appeal and set aside the conviction, even upon this assumption."
The learned Judge was obliged to set out the basis for his conclusions that the applicant had little prospect of establishing his alleged cause of action and that the alleged cause of action was less than speculative.
In my opinion, the learned Judge's failure to take into account the facts and circumstances which occurred between on or about 28 April 2000 and 29 November 2000 (apart from the proceedings commenced on 5 May 2000), and his failure to give adequate reasons for his conclusions that the applicant had little prospect of establishing his alleged cause of action and that the alleged cause of action was less than speculative, constituted errors of law.
Leave to appeal should be granted
In my opinion, leave to appeal should be granted on the grounds that:
(a)the learned Judge made the errors of law which I have mentioned, and those errors vitiated the proper exercise of his Honour's discretion to grant leave; and
(b)the learned Judge's refusal to grant leave, based on those errors, deprived the applicant of any opportunity to litigate his alleged cause of action.
It is necessary to consider whether the appeal should be allowed, and the applicant granted leave under s 6(3) of the Crown Suits Act.
Oral argument before this Court on 7 April 2006
The applicant's oral submissions to this Court on 7 April 2006 (and the written submissions which he filed and served prior to that date) did not articulate with precision the respondent's alleged breaches of duty. His submissions did not particularise the alleged acts and omissions of the respondent which the applicant relied on to establish negligence, further or alternatively breach of contract, further or alternatively breach of statutory duty. At the conclusion of the oral argument, this Court made orders permitting each of the parties to file and serve supplementary written submissions in relation to the issues I have mentioned. On 13 April 2006 the applicant filed supplementary submissions, on 21 April 2006 the respondent filed supplementary submissions, and on 26 April 2006 the applicant filed supplementary submissions in reply.
The applicant's supplementary submissions
The nature of the applicant's alleged causes of action against the respondent is explained in the applicant's supplementary submissions (which refer to the applicant as the appellant), as follows:
"Duty of care
…
42.In pleading his Statement of Claim against the Respondent, the Appellant will allege:
(a)At all material times, the Respondent owed to the Appellant a duty of care to provide a safe system of work, which included a duty to take all reasonable steps to protect the Appellant against the risk of physical, mental or psychiatric injury.
(b)The Appellant was, during the course of his employment with the Respondent, required to follow the orders and directions of his supervisors. Therefore, as part of the abovementioned duty of care, the Respondent owed a duty to the Appellant to ensure that any and all such orders and directions were reasonable in the circumstances and took into account the physical, mental and emotional well‑being of the Appellant.
(c)The Respondent was at all material times under a duty to the Appellant to take reasonable care for his safety by exercising proper control and authority over those employees under its care and control who supervised or worked with the [Appellant].
(d)By reason of stressful events occurring in the course of his employment, prior to January 1999, the Appellant was vulnerable to further stressors in the course of his employment with the Respondent.
(e)The Respondent knew, or ought to have known of the Appellant's vulnerability to further stressors as referred to in (d).
Breach of duty of care
43.The Appellant alleges that the Respondent breached the duty of care that it owed to him by its conduct, in that it:
(a)directed the Appellant to relocate to the CDC building;
(b)directed the Appellant to relocate to the CDC building in circumstances where the respondent was aware, or should have been aware, that the Appellant's pre‑existing psychological condition would be exacerbated by the relocation and/or the relocation would cause the Appellant to suffer further injury;
(c)failed to manage the Appellant's relocation to the CDC building in a manner that would not exacerbate his pre‑existing psychological condition and/or cause the Appellant to suffer further injury, by either:
(i)liaising with and following the advice of the Appellant's rehabilitation provider;
(ii)liaising with and following the advice of the Appellant's treating general practitioner;
(iii)liaising with and following the advice of the Appellant's treating psychiatrist; and/or
(iv)otherwise seeking appropriate medical or other advice from a medical practitioner or psychologist of the respondent's choosing,
in circumstances where the Appellant's rehabilitation provider, general practitioner and psychiatrist had all expressed concerns to the Respondent with respect to the detrimental effect which a direction to return to the CDC would have on the Appellant's health;
(d)required the Appellant to work with those people who, and in the location that, contributed to his pre‑existing psychological condition, despite expressed concerns from the Appellant and his treatment providers that to do so would exacerbate his psychological condition;
(e)failed to relocate the Appellant to the CDC in a manner that took into account his pre‑existing psychological condition and the Appellant's expressed distressed and deteriorating psychological condition at the prospect of being relocated to the CDC;
(f)directed the Appellant to relocate to the CDC in a harsh and unreasonable manner;
(g)failed to heed the concerns of the Appellant regarding his health and safety;
(h)failed to provide a safe work environment;
(i)failed to develop and implement systems of work which ensured that the Appellant was not exposed to harassment, victimisation or inappropriate treatment with respect to the location of his workplace or otherwise;
(j)failed to take any or any adequate steps to prevent harassment of the Appellant when it became apparent that such harassment was occurring;
(k)failed to adequately supervise and monitor employees of the Respondent in respect of their treatment of the Appellant;
(l)failed to provide any or any adequate counselling, psychiatric assistance, debriefing or other such assistance to the Appellant, from April 2000 onward, during the course of his employment;
(m)failed to provide any or any adequate ongoing vocational guidance, counselling, therapy, debriefing or other such assistance to the Appellant from April 2000 and prior to his medical retirement;
(n)failed to take any or any adequate measures subsequent to January 1999 to ensure that the Appellant was placed in positions and locations which would minimise the risk of any further physical or psychiatric injury;
(o)failed to take reasonable steps to ensure that the Appellant was not subjected to unnecessary stress by reason of the proper discharge of his duties; and
(p)failed to take reasonable steps to reduce or eliminate the stress the Appellant was subjected to by reason of the proper discharge of his duties.
44.The central inquiry in determining whether there was a breach of the duty of care is whether in all the circumstances the risk of a Plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful: Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 at 332‑333 [16], 343‑344 [61]‑[62], 385 [201].
45.The duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. This invites attention to the nature and extent of work being done by the particular employee and signs given by the employee concerned: Koehler v Cerebos at [35].
46.Unlike the Plaintiff (Appellant) in Koehler, the Appellant made many complaints to his employer that its actions were putting his psychiatric health at risk. There were both:
(a)changes in the Appellant's demeanour, personality and behaviour; and
(b)explicit and implicit indications that the Appellant was vulnerable to psychiatric injury.
Koehler v Cerebos at [41] and [50].
47.The Appellant submits that it was reasonably foreseeable that he would sustain psychiatric injury by reason of the Respondent's actions in insisting he return to the CDC and by the Respondent's general conduct (which was found by Review Officer Boon to be harsh and unreasonable: Ducker affidavit, annexure KD‑31, page 207) on the basis that:
(a)the Respondent was aware that the Appellant had previously suffered from a psychological condition in the course of his employment which required him to cease work;
(b)the Appellant's return to work was under a rehabilitation program which included the condition that he was not to work in the CDC;
(c)the Appellant suffered increasing distress and deteriorating psychological symptoms when advised that he would have to return to the CDC;
(d)the Appellant advised the Respondent of his increasing distress and deteriorating psychological symptoms in writing and in meetings on repeated occasions; and
(e)the Appellant provided the Respondent with medical reports and medical certificates that indicated that his condition could be exacerbated by returning to work in the CDC and/or that he was unfit to work if required to work in the CDC.
48.The Appellant further submits that the Respondent's knowledge of the Appellant's:
(a)vulnerability to psychological injury (from at least October 1998);
(b)increased risk of suffering from psychological injury if required to work in the CDC (from at least April 2000); and
(c)deteriorating psychological condition caused by repeated demands that he relocate to the CDC (from at least July 2000);
informed the content and standard of the duty of care owed by the Respondent to the Appellant with respect to causing psychological injury.
Causation
49.Dr Burvill, Consultant psychiatrist expressed the opinion that the 'deterioration in his psychiatric state was due to her (sic) return to work in the CDC, in spite of the fact that her (sic) general practitioner had strongly advised against this, on grounds of his health, and that there had been an agreement about this matter with his rehabilitation officer Sylvana [sic] Bustello. This work pressure appeared to be a continuation of the major stress which Mr Ducker has experienced in his workplace over the past three years … Mr Ducker has a chronic Generalised Anxiety Disorder, with concomitant depressive symptomatology. As documented in my previous reports I am firmly of the view that his psychiatric state is directly due to stress within the workplace over the past three years.' [Ducker affidavit, Annexure 'KD‑35', page 341]
50.Review Officer Boon found that it was the prospect of being forced to return to the CDC building which significantly contributed to the aggravation of the Appellant's stress related disease. In making this finding, Review Officer Boon stated:
'My view is that, in the circumstances of this case, being permitted to stay outside the CDC building is not a benefit of employment as the applicant's treating medical practitioners have indicated that it is not appropriate dor [sic for] him to be forced to return to that building. Further, if I am wrong about the circumstances of this case not amounting to 'transfer' then I find the employer's conduct was unreasonable and harsh. As Dr Burvill has stated, the employer has maintained its insistence on returning Mr Ducker to the CDC building despite being advised by the treating medical practitioners that this is not appropriate "
[Ducker affidavit, Annexure 'KD‑31', page 283 at [83]]
51.The Appellant needs to ultimately produce 'evidence on which it could be found that the Defendant unreasonably failed to implement a reasonably practicable means of avoiding foreseeable risk': New South Wales v Mannall [2005] NSWCA 367.
52.The Respondent relies on the 'Dillinger report' [Affidavit of Donald Boyd, paragraphs 11 to 14; Annexure 'DAB1'] to explain the necessity of the abolishment of the Appellant's position and the need for him to return to the CDC. The 'Dillinger report' does not specifically deal with the requirement for the Appellant to be relocated to the CDC, in circumstances where the Appellant has been (successfully) working from an alternate location since January 1999 [Ducker affidavit, paragraph 15].
53.The Appellant submits that he will be able to produce expert evidence that will demonstrate that the Respondent failed to implement a reasonably practicable means of avoiding foreseeable risk, in the trial of this action. The Appellant submits that it is unreasonable and unnecessary for him to have obtained such evidence for the purposes of the leave application, given that he merely needs to show that his claim is 'not mala fides, not speculative or absurd'.
54.The Respondent's breach of the duty of care clearly caused him loss and damage.
Breach of contract
55.The Appellant's claim for breach of contract is pleaded in the following way:
(a)At all material times the [Appellant] was employed under a contract of employment by the [Respondent].
(b)It was an implied term of that contract that the [Respondent] take all reasonable steps to ensure the safety of the [Appellant] during the course of his employment.
(c)It was also an implied term of that contract that the [Respondent] ensure that the duty of care that it had in respect of the [Appellant] and enunciated in paragraph 41 herein was not breached.
(d)The [Respondent] breached the terms of its contract with the [Appellant] by reason of the matters referred to in paragraph 42 herein.
Breach of statutory duty
56.The Appellant's claim is also framed as a breach of section 19(1) of the Occupational Safety and Health Act 1984 …
57.With respect to this cause of action, the Appellant repeats paragraph 42 herein.
Other claims for workplace stress
58.A claim in negligence for psychiatric injury resulting from workplace stress is not farfetched or fanciful. Such a claim said to flow from victimisation and harassment has been held to be actionable: Mannall v State of New South Wales [2001] NSWCA 327; State of New South Wales v Mannall [2005] NSWCA 367; O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7.
59.By reason of the matters detailed above, the Appellant submits that his potential claim against the respondent is 'not mala fide, not merely speculative or absurd'."
The respondent's supplementary submissions
The respondent's supplementary submissions were, relevantly, as follows:
"…
Duty of care
38The respondent accepts that as an employer it owed a duty of care to an employee such as the respondent to take all reasonable steps to provide a safe system of work. The employer accepts that his duty extends to taking reasonable steps to protect an employee from harm that is reasonably foreseeable.
…
40It is conceivable that if the respondent had directed the appellant to return to work under the direct supervision and control of the project managers whom he alleged had previously caused him to suffer from stress, that such a direction might have given rise to a sustainable claim that the employer had breached its duty of care.
41As is demonstrated in the appellant's affidavit, by the time he was directed to return to the CDC building he was aware that the people whom he alleged had previously caused him to suffer from stress (the three project managers) were no longer employed in that building.
42The appellant at paragraph 43 of his submissions sets out various grounds upon which he will allege the respondent breached its duty of care to him.
43It is important to note that:
43.1at no stage was the only direction to the appellant that he return to the CDC building;
43.2upon the re-structure of the CDC and the abolition of the position held by the appellant, he was presented with a number of other options including re-deployment and redundancy;
43.3the appellant was offered independent vocational counselling to be paid for by the respondent;
43.4the appellant was offered temporary placement in a level two position as a graphic designer in the CDC upon his failure to make an election as requested by the appellant;
43.5the appellant told Professor Burvill that as the three project managers with whom he had previously had issues were no longer employed within the CDC, he was optimistic about his return to work in that environment, and 'his stress in the workplace has .... been relieved' (Ducker affidavit at page 87). There was therefore no indication that there was any reason why the appellant should not be relocated to the CDC building, particularly given the condition detailed by Mr Boyd in annexure 'KD20' that the appellant was required to work within the CDC building if he wished to take up the position of the level two graphic artist;
43.6the respondent was offered and provided with extensive rehabilitation support.
44Annexure 'KD20' confirms that the respondent was well aware of and supportive of the need to allow the appellant to make a transition back to working within the CDC building and to provide appropriate support to enable him to do so. From the time that this was first mooted (April 2000) a period of 6 months elapsed before the appellant was given a deadline as to the date by which he was to report for duty at the CDC building.
45The vocational rehabilitation support was put on hold on 9 October 2000 after the appellant advised his rehabilitation counsellor that he was more intent on pursuing his workers' compensation options (annexure 'KD23').
Causation
46There have been very few reported cases to date dealing with claims for damages arising from psychiatric injury.
47Historically, the courts have, primarily for reasons of policy, sought to differentiate between physical and psychiatric injury.
48More recently a number of actions have been brought for damages for alleged psychiatric injury. As noted by the appellant in his submissions a leading case emanating in this jurisdiction is that of Koehler v Cerebos (Australia) Ltd [2005] HCA 15. The respondent concedes that it had more knowledge in this case of the worker's propensity for psychiatric illness than did the employer in Koehler. Nevertheless it is important to note that in the period from February 2000 to 25 September 2000 the appellant was certified fit to return to work subject only to receiving ongoing treatment. Although progress medical certificates from 21 August 2000 were further qualified, the qualification restricted only the worker being placed under 'undue stress re the move to the CDC'. There is no evidence that undue stress was being placed on the appellant.
49The appellant refers to the recent decision of the Court of Appeal of the Supreme Court of New South Wales which upheld a decision awarding damages to a worker who suffered from work related stress (NSW v Mannall [2005] NSWCA 367). The respondent submits that that case is quite distinct from the present. There the employer was held to be vicarious [sic] liable for the failure of a manager to intervene and properly address instances of harassment and intimidation against the worker by colleagues.
…
51The respondent submits that the documentary material which has been placed before this Honourable Court by the appellant does not support the propositions contended for in paragraph 43 of the appellant's submissions.
52The Court of Appeal in England in the matter of Hatton v Sutherland & Ors [2002] 2 All ER 1 provided a useful summary of the factors likely to be relevant in determining whether an employer had breached the duty of care it owed to an employee in a claim involving an injury to health (as distinct from occupational stress). The court held the employer would only be in breach of this duty if he failed to take the steps which were reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which might occur, the cost and practicability of preventing it and the justifications for running the risk. …
53In the present case the respondent had tried for a period of six months to facilitate the appellant's return to the CDC building. There were no real impediments to this transition. The fellow employees who had previously been alleged to have caused the appellant to suffer from stress and depression would not be working in that building. His objection appeared to be that there was one person (in a building of about 200) who he perceived as 'hostile' (annexure 'KD 19').
54The respondent had undertaken to manage that situation (annexure 'KD20').
55The appellant had been provided rehabilitation assistance from a qualified rehabilitation consultant/psychologist.
56It is not reasonable to expect an employer to provide separate places of work for employees on a permanent basis simply because they have concerns in relation to the perceived likely attitude of one colleague out of many.
…
58A closely analogous matter to the present is that of Allen v The State of Western Australia [1999] WADC 52 (unreported, District Court of Western Australia, delivered 3 September 1999). In that matter the plaintiff, a prison officer, sought damages from his employer because it had failed permanently to redeploy him into a role which did not require contact with prisoners. Her Honour Kennedy DCJ (as she was then) stated;
'what the plaintiff asks of the employer was impossible for the employer to achieve. Not helped by the fact that the plaintiff was apparently so sensitive as a result of his post traumatic stress disorder that he interpreted everything that happened as part of an active programme against him. Furthermore, there seems to be a suggestion in the plaintiff's case that the plaintiff's future in the prison system should have been put ahead of every other policy concern that the department had, and I must reject that.
The employer is in the prison business: without prisoners there is no business. It is almost impossible to provide work with no prisoner contact. Furthermore, those jobs with minimal prisoner contact are highly sought after as time out positions by all prison officers. Plainly, prison officers doing shifts with prisoners would fairly expect not to be excluded from such positions and indeed, it is obviously essential for their good health that they have time out and that is the arrangement which has been made with the relevant union. …
It would be most unjust and it would not be possible to run an organisation of the size of this one allowing people to advance in that way'(at page 48).
59The respondent submits that what the appellant was seeking was also impossible for the respondent to provide. The appellant sought to dictate where he worked, what work he would do, when he would attend meetings and to whom he would report. Plainly, it was not reasonably possible for the respondent (or indeed any employer) to provide such an environment.
Foreseeability
60The High Court in Tame v New South Wales (2002) 211 CLR 317 held it must be shown by the appellant that the respondent ought to have anticipated that an ordinary person of normal fortitude in the appellant's position would have suffered the harm which he alleges he came to suffer in the circumstances. As was stated in Tame by His Honour Justice McHugh 'What is reasonable is to be judged by reference to the community's general knowledge of the effect of stressors on ordinary persons of normal fortitude.' (at pg 358).
61Although there is some difference between the opinions of different members of the High Court it is submitted that the views of Hayne J are apposite:
'Reasonable or ordinary fortitude is, and should be recognised to be, a control mechanism the application of which will require consideration of what, as a matter of general community expectation, could reasonably be foreseen to be the reaction of the reasonable or ordinary person to a particular kind of stressful event.' (at pg 411)
62The respondent submits that it could not be foreseen that an ordinary person of normal fortitude could suffer mental disorder by being told he would be required to work in a building which he perceived to be 'hostile'. The only reason for this perception was the fact that the worker had previously experienced difficulty with some colleagues in that building but those colleagues were no longer employed there. Even though the respondent had knowledge at that time of the appellant's previous stress condition, recent medical reports from two psychiatrists had stated that the appellant was fit for work.
63In all the circumstances the respondent respectfully submits that it would not be just to grant leave to the appellant to issue proceedings in relation to events which occurred between April 2000 and October 2000 in the circumstances as deposed to by the appellant."
The applicant's supplementary submissions in reply
The applicant's supplementary submissions in reply were, relevantly, as follows:
"Respondent's Submissions, Paragraphs 56 to 59
14.The crux of the respondent's defence appears to be that it was not reasonable to expect an employer to provide separate places of work for an employee on a permanent basis [Respondent's Submissions, paragraph 56]. In determining what is reasonable conduct of an employer, the Court must consider 'the size and scope of the employer's operation, its resources and the demands it faced' [Hatton v Sutherland & Ors [2002] All ER 1 at 2]. There is no evidence before the Court as to the size and scope of the respondent's operation. The appellant submits however:
(a)The employer is the Department of Education, a large organisation with many employees; and
(b)The appellant had been working in an alternate location to the CDC from about January 1999 [Ducker Affidavit, paragraphs 14 and 15].
15.The appellant submits that the 'the size and scope of the employer's operation, its resources and the demands it faced' was such to enable the appellant to continue to work outside the CDC.
16.With reference to paragraphs 58 and 59 of the Respondent's Submissions, the appellant submits that his case can be clearly distinguished from the matter of Allen v The State of Western Australia [1999] WADC 52. Mr Allen was a prison officer, who alleged that his employer was negligent for failing to provide him with 'light duties', namely those with no prisoner contact. Mr Allen was effectively seeking a complete redefining of his role, which would have been to the detriment of other employees, as it would have limited the ability of those employees to obtain respite.
17.In contrast, the appellant simply required that he continue to do his job (the same job) in an alternate building to the CDC as he had been doing for some 21 months prior to October 2000, or in the event that he was required to work in the CDC (which he was willing to do) that any transfer to the CDC would allow for his medical condition.
18.The appellant is unaware of any detriment to other employees, or how it would have been 'most unjust' for the respondent to have provided this, particularly in circumstances where there was clear evidence that the appellant was likely to sustain injury in the event that this was not provided.
19.With respect to paragraph 59 of the Respondent's Submissions, the appellant was not seeking to, and did not, dictate to his employer where he worked, what work he would do, when he would attend meetings or to whom he would report. Further, there is no evidence before the court that suggests that the appellant sought to dictate to his employer where he worked, what work he would do, when he would attend meetings or to whom he would report.
Respondent's Submissions, paragraphs 60 to 62
20.With respect to paragraphs 60 to 62 of the Respondent's Submissions we submit that the test of 'normal fortitude' as outlined by McHugh J in Tame v New South Wales (2002) 211 CLR 317 is not the appropriate test to apply. The appropriate test as set out in Tame was referred to in Koehler at [33] to [35]:
"In Tame v New South Wales; Annetts v Australian Stations Pty Ltd, the Court held that 'normal fortitude' was not a precondition to liability for negligently inflicting psychiatric injury. That concept is not now to be reintroduced into the field of liability as between employer and employee. The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.
It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work. Yet it is that proposition, or one very like it, which must lie behind the Commissioner's conclusion that it required no particular expertise to foresee the risk of psychiatric injury to the appellant.
The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton, the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.' (emphasis added)
21.The Court must therefore consider not whether a person of 'normal fortitude' would sustain injury, but rather, whether it was reasonably foreseeable that the appellant would sustain injury.
22In all the circumstances, the appellant respectfully submits that it would be just to grant leave to the appellant to commence proceedings against the respondent."
Should the appeal be allowed and the applicant granted leave under s 6(3) of the Crown Suits Act?
It does not, at present, appear to be in dispute that:
(a)at all material times the respondent owed the applicant a duty to provide a safe system of work; and
(b)at all material times that duty extended to taking reasonable steps to protect him from harm which was reasonably foreseeable.
The applicant has adduced evidence which may be capable of establishing that, at relevant times, and to the respondent's knowledge:
(a)he was vulnerable to psychological injury; and
(b)he was at increased risk of suffering from psychological injury if required to work in the CDC.
The applicant has also adduced evidence which indicates that, at various times from in or about April 2000, he suffered a deterioration in his psychiatric condition upon being confronted with the prospect, and in September/October 2000 the requirement (as he understood it), that he relocate to, and report for work at, the CDC.
Further, the applicant has adduced evidence which may be capable of establishing that, at relevant times, he suffered from a psychiatric condition, namely, "generalised anxiety disorder with agoraphobia".
The critical issues which will determine whether the applicant has a cause of action against the respondent or not, appear to be these:
(a)Did the respondent breach its duty to the applicant, as the applicant alleges?
(b)If the respondent did breach its duty, did the breach cause the injury of which the applicant complains?
The issue of breach is especially contentious. It is contentious in relation to the facts and also in relation to the proper application of the relevant legal principles to those facts.
Although there is no evidence that the applicant's claim is made in bad faith or is a "try‑on", it appears, at present, that in any proceedings the applicant would have serious difficulty in establishing a breach of duty by the respondent. This is not, however, a point which can, or should, be resolved in this appeal. The evidence to which I have referred in par 5 above satisfies me that the applicant's claim cannot be dismissed as "merely speculative" (in the sense I have explained in par 14 above) or, indeed, absurd. I am not of the positive opinion that the applicant has no case.
I would allow the appeal, and grant the applicant leave under s 6(3) of the Crown Suits Act to bring an action against the respondent, provided:
(a)the writ of summons is issued in the District Court within 14 days; and
(b)the claim is for damages for personal injury allegedly suffered by the applicant in consequence of the negligence, further or alternatively the breach of contract, further or alternatively the breach of statutory duty, of the respondent between about March 2000 and November 2000 inclusive.
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