Emmerson v Brennan
[2014] VCC 2050
•11 December 2014
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-13-00256
| SHARON EMMERSON | Plaintiff |
| v | |
| JILLIAN BRENNAN | Defendant |
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JUDGE: | HIS HONOUR JUDGE MCINERNEY | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 15, 16 and 17 September and 6, 7 and 8 October 2014 | |
DATE OF JUDGMENT: | 11 December 2014 | |
CASE MAY BE CITED AS: | Emmerson v Brennan | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2050 | |
REASONS FOR JUDGMENT
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Subject: ACTION FOR DAMAGES
Catchwords: Negligence – non-delegable duty of care – summary dismissal – psychiatric injury – whether breach of duty – credibility
Legislation Cited: County Court Civil Procedure Rules 2008, Order.20.03
Cases Cited:Downes & Anor v Maxwell Richard Rhys & Co Pty Ltd [2014] VSCA 193; Brown v Maurice Blackburn Cashman [2013] VSCA 122; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Mr R Meldrum QC with Ms G-J Cooper | Wisewould Mahoney |
HIS HONOUR:
Introduction
1 In this matter, the plaintiff appeared without legal representation. The defendant was represented by Mr R Meldrum of Her Majesty’s Counsel, with Ms G‑J Cooper.
2 This matter was first called over in the call over conducted in Melbourne prior to the County Court circuit beginning in Geelong in September 2014. The plaintiff did not appear, and the matter was adjourned for mention at Geelong.
3 At the sittings, on 15 September 2014, the plaintiff advised the Court that she was not represented, and was not in a financial position to be represented. The plaintiff wanted to proceed with the jury trial and I indicated to the plaintiff on that day that I would look at the materials, being a Court Book provided by the defendant, overnight and advise the plaintiff as to my thoughts the next morning.
4 The plaintiff indicated to the Court that her solicitors had taken the retainer on a “no win no fee basis,” but when the matter was listed had demanded $4,000 for Counsel fees.
5 The Court file demonstrates that Petersons Solicitors, a well-known common law firm in Geelong, filed, on 11 June 2013, a Notice pursuant to Order 20.03 of Withdrawal of Practitioner. However, as the matter had been set down for trial by consent on 11 March 2014, Petersons required leave of the Court to file such Notice. I have been unable to locate on the file where application for such leave was made to the Court, and enquires made by the Geelong Registry indicate that no such application was ever received. Petersons still remain solicitors on the record, and need to apply for leave from the Court to alter such status.
6 On the next day, 16 September 2014, I began by referring to the Court of Appeal decision of Desmond Downes & Anor v Maxwell Richard Rhys & Co Pty Ltd,[1] and again emphasised to the plaintiff that it was most important for her to have legal representation; however, the plaintiff insisted that she wanted to proceed in the matter, and could not afford same. Enquiries also revealed that the plaintiff could get no assistance from Victoria Legal Aid, or the Bar pro-bono scheme.
[1][2014[ VSCA 193
7 That morning, Mr Meldrum indicated that the defendant had decided not to pay the jury fees and suggested to the Court that, given the degree of assistance that I would have to provide to the plaintiff, in the circumstances, as to the running of the case, that it was inappropriate for the matter to proceed before a jury. After the instructor of Mr Meldrum offered to pay the costs if the matter proceeded as a cause, at least of the first day, I referred the plaintiff to Courtney Ryrie, a member of the Melbourne County Court Registry staff employed specifically to assist unrepresented plaintiffs, and listed the matter for 6 September 2014 as a cause. The plaintiff consented to such course. There was some further discussion that afternoon, and I indicated to Mr Meldrum that I was still not certain whether I should proceed to hear the matter, in the sense of hearing the matter as a cause. The transcript of such conversation was served upon the plaintiff.
8 Overnight I gave the matter further thought and on 17 September 2014, recorded my thoughts and the advice that I gave to the plaintiff. I decided, albeit unwilling to do so, that I would proceed to hear the case. I detailed the relevant matters that had to be proved and, specifically, the allegations made in the Statement of Claim. The defendant’s solicitors indicated that they would serve the transcript of my remarks upon the plaintiff, prior to the hearing of 6 October 2014.
9 The hearing, therefore, began on 6 October 2014 with the plaintiff appearing in person, accompanied by her sister, and Mr Meldrum appearing on behalf of the defendant, with Ms Cooper. Unfortunately, it turned out that the plaintiff had not read the transcript of my remarks of 17 September 2014, that had been served upon her. As such, I adjourned the Court until 2.00pm so that she could fully read such transcript. Her sister undertook to assist the plaintiff in this regard. The difficulty with cases such as this, with an unrepresented plaintiff, was illustrated on page 39 of the transcript.
10 The Court resumed in the afternoon on 6 October 2014 with the defendant undertaking to pay the costs of the first and second days. The plaintiff was to sit at the Bar table, with her sister assisting her. There was further discussion of the actual issues involved in the consideration of the issue of breach of duty. In that regard, Mr Meldrum referred the Court to Fiona Brown v Maurice Blackburn Cashman.[2] Given the same, I determined to amend the document that I had provided under the heading “Negligence”, at page 28 of the transcript to the plaintiff, and the amendment took into account the statements made in the Maurice Blackburn case. Such was ultimately amended accordingly, and provided to the plaintiff, exhibit A. The plaintiff was also provided with a copy of the case. It should not be underestimated that at all times the plaintiff was concerned about how she was going to handle the case, in particular the stress and anxiety and the issues of her suffering depression. Again, at page 39 of the transcript, I expressed that I was trying to assist the plaintiff, given that she did not have lawyers. The matter then proceeded to be heard as a cause on the first issue of breach of duty insofar as the claim of the plaintiff was concerned. The plaintiff began her evidence at page 52 of the transcript.
[2][2013] VSCA 122
Evidence of the Plaintiff
11 The plaintiff was born in New Zealand in July 1967 and arrived in Australia in 1984. The plaintiff worked in a series of labouring-type capacities and gave birth to her first child, in September 1991, a daughter called Stephanie. Thereafter, she lived on the single parent pension and subsequently, had a further child in September 1993, a boy called Cameron. Then, in September 1999, she had her third child called Jamie.
12 Apparently the plaintiff had gone back to part-time work, but stayed on the pension, when Cameron went to Prep Grade and, subsequently, took the same steps in 2005 after Jamie went to Prep. She then continued in various jobs, including working in the Belmont Home for the Aged as a personal aide, albeit without any certificate, for approximately one year. She was apparently sacked from that job.
13 The plaintiff began work with the defendant in January 2008, as a cleaner. Subsequently, following discussion with the defendant in late June-early July, she began work as a Personal Carer Attendant (PCA). She would be advised by the defendant what type of work she was to do on any particular day, such advice being given the day before.
14 Upon encouragement from the defendant, the plaintiff signed up to study for what is known as the Certificate IV in Nursing, which is the relevant qualification for a PCA. She had begun the practical side of obtaining such certification with the defendant, and had signed up with a Salvation Army organisation to do the theory work, and had just signed that application.
15 In regard to the plaintiff’s psychiatric/psychological history, she indicated to the Court that in New Zealand she had had issues by way of sexual abuse by her father. She had been made a Ward of the State at the age of fourteen and retained that status from fourteen until seventeen, as she said her parents did not want her.
16 The plaintiff gave evidence that when she came to Australia at the age of seventeen, her state of health was good and she was a happy person. Subsequently, she did get treatment for depression at the age of twenty from a general practitioner at East Keilor. She considered she suffered from moderate depression, albeit she enjoyed life and worked full time. She said she had many friends and enjoyed their company. When she was aged twenty-two, she apparently attended a psychiatrist on a number of occasions concerning issues which related back to the sexual abuse of her as a child.
17 In the years before 2008, when the plaintiff started work with the defendant, the plaintiff said she was in a good state of health. She was getting a part pension and working part time, and was a mother of three children. She said she was suffering what she described as “moderate depression” – that is, not being affected every day; however, she was sad about her background, but she had dealt with it and moved on. She was seeing her general practitioner, Dr Fitzpatrick.
18 Dr Fitzpatrick conducted the Grovedale Medical Centre and the plaintiff tendered his report, dated 3 June 2009.[3] He noted in such report at the second last paragraph, as to the plaintiff’s medical state: “… a lady with pre-existing disposition to anxiety and depression who was stable and fully functional until an unfortunate event happened at her workplace for which she was unfairly blamed”. The plaintiff said that prior to starting work with the defendant, her medication was 20 milligrams of Arapax, one per day, which she took by way of one tablet. She described her condition at that time as mild depression with anxiety, she also suffered from irritable bowel syndrome, for which she took Xanax.
[3]Exhibit B
19 Having begun work with the defendant in January 2008, the plaintiff said she received no advice from the defendant that she was carrying out her work in an inappropriate manner. There had been no issues, but for a problem with inappropriate dispensation of tablets, approximately two weeks before she was sacked. She had been warned by Ms Brennan about this. She had also been inappropriately, as far as she was concerned, called a “seagull”; that is, inappropriately accused of taking bread from the kitchen. That had upset her, the accusation being made by the husband of Ms Brennan, but she had done nothing about it. If there was a progress report, or file kept on her by her employer, she was not aware of it.
20 Insofar as the treatment of the resident Christine Zabukosek, she said that she was a low care patient, with whom she was on good terms. There was some concern as to the patient harming herself, and the plaintiff believed that Christine was on suicide watch. She administered, when she was acting as a PCA, medication to Christine.
21 On 26 August 2008, the plaintiff had seen Christine crying, while the plaintiff performed cleaning duties. She said she did work as a PCA for one-and-a-half hours that day, and cleaning for two hours. In fact, she asked Christine if she was okay. A male friend of Christine said to the plaintiff that Christine would be okay, and the plaintiff had continued cleaning. During the plaintiff’s work, she came back, and Christine’s male friend, Archie, had said to her that Christine was okay. She said that that day, as a PCA, she filled out the hand-over sheet as to patients, with the second-in-charge, one Yvonne, and she marked beside Christine’s name that everything was, “O.K.,” and then left the premises.
22 The next day, the plaintiff was not rostered on. The plaintiff said she received a telephone call from Yvonne, who asked her to come to Brookland House as soon as possible, which she did, arriving somewhere between seven and eight o’clock. She walked into the kitchen, and was told by the defendant to come into the staffroom and bring her bag. There she was told that Christine had suicided.
23 The plaintiff said that she was shown an article in the local newspaper about the suicide, and had started to cry. The plaintiff said she was asked as to why she entered “O.K.,” in the hand-over sheet when, in fact, Christine had been crying. The plaintiff said that the defendant said to her had she not put “O.K.” in the record, the death could have been avoided. The plaintiff said this was said to her when Ms Brennan was holding the hand-over sheet in her hand. The plaintiff said she was already feeling at fault personally, and was asked approximately five times why she had written “O.K.”[4] The plaintiff said that both the defendant and Yvonne kept accusing her of being responsible for the death of Christine, that she was very upset, became frozen and was, to use her words, “balling her eyes out”.
[4]Transcript (“T”) 89
24 The plaintiff was then told that because of this further incident, she would have to be let go; that is, her employment would be terminated. She did not reply and could not understand why they were doing this. While that discussion was taking place in the presence of the defendant, Yvonne had said to her it would be good if she got a job picking up dead bodies in body bags, as there was good pay for that.[5]
[5]T91
25 The plaintiff said that prior to this date, there had been no complaints made to her, or any suggestion that she could not handle the job during the period that she had had been a trainee PCA, a little over one month. She said that on the day of Christine’s suicide, she had in fact told Yvonne Moore that Christine had been crying, and of Archie’s assurance. She said on that date, in fact she had left at the same time as Christine, as there was no restriction whatsoever on Christine leaving the premises, and she had in fact seen Christine getting into a taxi.
26 The plaintiff gave evidence that during her employment at Brookland House from January of 2008, she had no time off work for any of her issues which described, as I have said, as moderate anxiety and depression, that such issues were not debilitating and she was quite capable of performing her job as a cleaner and part-time PCA.
27 Subsequent to 27 August 2004, she said she was perhaps emotionally frozen for about a week and finally went to Dr Fitzpatrick approximately one week or a week-and-a-half after being terminated. It is noted in exhibit B, the report of Dr Fitzpatrick, the plaintiff first presented on 5 September 2008, feeling anxious, upset and tearful, with poor sleep interrupted by nightmares regarding the incident.
28 The plaintiff described herself at that stage as being severely depressed, anxious, tearful and emotional. She had blamed herself for the suicide occurring. She said that as she was accused by her employer of being at fault, she had accepted such accusation and the fact that she had been sacked for her failure to appropriately record her observation of a resident.
29 Subsequently, the plaintiff was unable to work and she put in a stress claim to WorkCover, which was accepted. Insofar as the particulars of her claim were concerned, as detailed in paragraph 5 of the Statement of Claim, the plaintiff said that she was not comforted by the defendant in any way, that neither the defendant nor Ms Moore cared about her in any way, and in fact had accused her of being at fault in regard to the death of Christine. She said that she had been absolutely intimidated and made to feel that it was her fault and was harassed by such conversation and subsequently, had been unfairly sacked. In essence, she said that as a result of such behaviour, she initially accepted that the suicide was her fault and suffered considerable distress as a result. However, she gradually came to understand that it was unfair to blame her and was of the view that it was the actions of the defendant on 27 August 2008 that was responsible for her current mental condition, and her suffering from such.
30 The plaintiff was cross-examined by Mr Meldrum. Mr Meldrum questioned the plaintiff firstly about an inappropriate drug distribution to a resident from what is known as a Webster pack (see exhibit 2). The plaintiff accepted that she had inadvertently made a mistake, but had fixed up the mistake by placing a piece of tape over the Webster pack after a resident had noticed the wrong medication. She disputed that she had ever actually given any wrong medication to a male patient. Insofar as the work carried out as a PCA through the month of her training, she disputed there had been any issue with the defendant but for the comment, after the Webster pack incident, by the defendant, she should “watch what you are doing”.
31 Insofar as the allocation of jobs, she said that the cleaning was done by her only in the mornings from 9.00am to 1.00pm and she would shift to PCA work on other days, either from 7.00am to 1.00pm or 4.00pm to 7.00pm, depending on a fortnightly roster. She said that sometimes when she finished her cleaning work, she would stay on at work until approximately 4.00pm before leaving. It was put to her by Mr Meldrum, on behalf of the defendant, that this never occurred.
32 As to Ms Moore, the plaintiff said that she was unaware that Ms Moore was a registered PCA, as Ms Moore had told her she was not a PCA and that she was just a farmer. Mr Meldrum put to the plaintiff that such conversation never took place, as Ms Moore had been a PCA since 2003.[6]
[6]T88
33 As to the day upon when Christine left the premises on 26 August 2008, Mr Meldrum put to the plaintiff that she was not there at the time Christine left the premises, nor could she have seen Christine leave. The plaintiff maintained that she was.
34 The plaintiff disputed that she had been reprimanded by Ms Brennan to her work as a cleaner; that is, that she was prone to shift residents’ possessions. The plaintiff maintained that “I was not reprimanded for this as I remember”. She did accept, however, that she was found in the premises, of the defendant and her husband, when she should not have been there. She maintained that Ms Brennan did not get upset about that, but simply told her that if she ever wanted to come into the private quarters, she must ring the buzzer beforehand.
35 In regard to the theoretical side of the PCA course, she had been given materials by the school at which she was to attend.
36 As to the pattern of work, she agreed that at all times when she worked as a PCA she was always assisted, or mostly always assisted, by Yvonne Moore and was delegated her duties by the defendant, or Yvonne. Her work as a PCA essentially involved personal care and welfare of residents, in particular, showering, attending to incontinence issues, helping persons to dress, distributing medication and making beds.
37 It was put to the plaintiff that in fact on 26 August 2008, she was not doing personal care work, but had simply observed Christine crying, while she was attending to cleaning work at the premises. The plaintiff maintained that she had been attending to personal care work, after she had earlier been doing cleaning work that morning.
38 It was put by Mr Meldrum that the defendant had warned the plaintiff twice about interfering with persons’ possessions, but the plaintiff disputed this, and further, that she had been given two oral warnings about inappropriate distribution of medication – one in the presence of a patient, and another after the defendant was approached by residents.
39 The plaintiff answered that, no, the only warning she had was the comment of the defendant on the day she was sacked, that is, 27 August 2008, after the defendant said that she was going to serve the plaintiff with a written warning, but given the circumstances, had decided to sack her.
40 As to the day of her sacking, the plaintiff disputed that the defendant had asked her to attend by ringing her at 9.00am, but suggested that in fact it was Yvonne Moore. She said that when she came to the premises, she was asked to go into the staff room. She disputed that initially the discussion concerned the inadequacies of her entering comments in the hand-over sheet and said basically the first thing that she was told was of the suicide and that it was her fault. She said, when told of the death, that she had said “Was it my fault?” and indeed may have said that more than once. She accepted that at least once, either Ms Moore or the defendant may have said to her, “No, it is not your fault, don’t blame yourself”.
41 The plaintiff said that she was advised by the defendant that the defendant had intended to give her a warning that morning, being a written warning, but considering the circumstances, the defendant had then decided to let her go. It was put to the plaintiff that they were approximately an hour in the staffroom, which she agreed could be, and she accepted that she was being consoled, as she was tearful. The plaintiff agreed that once told she was to lose her job, she indicated she was concerned about how she would pay the expenses for her family, and accepted that Ms Moore told her that she had recently learnt of a funeral director looking for staff. It was put to her that at no stage did Ms Moore say to her anything about dead bodies in bags. The plaintiff maintained that Ms Moore did make such a comment, but also said that the plaintiff needed a job where no lives were at risk. The plaintiff said, “I can remember it like yesterday”. Mr Meldrum put to her, however, that the one thing she did not say in her evidence-in-chief was that very point; that Ms Moore had ever said to her, “You need a job where you can’t kill anyone”.[7] When this was put to her, the plaintiff maintained that such was actually what was said to her by Ms Moore, in the defendant’s presence.
[7]T118
42 In this regard, it should be noted that by way of re-examination, I tried to assist the plaintiff, and went to that very point, and the plaintiff said that she had simply forgotten about that piece of evidence.[8]
[8]T120
43 Mr Meldrum was then given leave to ask a further question of the plaintiff concerning the Claim Form which was tendered as exhibit 1, located at page 38 to 40 of the Court Book. The issue as to any prior like medical problem was asked in the Claim Form at number 30, to which a “No” was given. The plaintiff’s answer in Court was that she had certainly never had such a problem before. I gave the plaintiff an explanation as to why such question and answer was being tendered, and then asked if she had any comment, and she said, at page 123 of the transcript:
“Not of this nature before, being raped, and then getting bullied and blamed at work is two different things which brings two different mental outcomes. It’s like comparing apples to oranges, so no I was not thinking about the rape when I put that.”
44 The plaintiff also indicated that such was the reason why she had not mentioned being treated for anxiety either, as she saw it as completely different to what the symptoms were, such being mild, compared to what she was now suffering.
45 On the issue of credit, Mr Meldrum relied on the prior offences of the plaintiff, which were admitted. These matters were put by Mr Meldrum,[9] and involved shoplifting, to which the plaintiff admitted to being convicted of, both before and since the time that was she was employed at Brookland House.
[9]T92
46 Mr Meldrum, on the issue of credit, also referred to the plaintiff’s evidence that she had told Ms Moore, the day before, that is 26 August 2008, that Christine had been crying. In this regard, he questioned such evidence and the evidence that she was present when Christine left the premises, late that afternoon. Mr Meldrum suggested that such were attempts to try to whitewash her actions. He suggested that it would be particularly bizarre of Ms Moore to stand back and never tell the defendant, if she had been told the day before, by the plaintiff, that Christine had been crying. He submitted this further brought into question the plaintiff’s credit.
47 That was the plaintiff’s case.
The Defendant
48 The defendant then gave evidence and confirmed she held a Certificate III in Aged Care and Certificate IV in Aged Care and Disability, which she had received before 2000, and conducted what is known as a supported residential service, which was a low-care facility with no security, at Brookland House. She said there were 30 units on the ground floor and in addition, a staff room with a sleepover bed and, as I understand it, living premises at the top, to which she said there was to be no access unless you pressed the buzzer. She said the only persons who did sleepovers were Yvonne and herself.
49 The defendant said approximately one month before the date of dismissal, she had found the plaintiff in her private residence, and reprimanded her for being there.
50 In regard to the employment of the plaintiff, the defendant was aware that her sister was a Registered Nurse who the defendant had interviewed for a job, who had thereupon told the defendant that she had a sister who needed a job.
51 The cleaning duties performed by the plaintiff were between 9.00am to 1.00pm, Monday, Wednesday and Friday, with no afternoon shift. The defendant said she was at the premises from Monday to Friday, and at no stage did the plaintiff ever stay at the premises later than such shift times.
52 The job as a PCA had been offered to the plaintiff, and she began in approximately June-July learning the practical side, at Brookland House and the theory with the company, Advanced Training, who delivered to her the paperwork. The hours that she would work as a PCA would be from 7.00am to 1.00pm, or alternatively 4.00pm to 7.00pm, and the defendant said she had never known the plaintiff to stay at the premises after shifts.
53 As to the plaintiff carrying out her work, the defendant said she was good as a cleaner, although there was a problem in regard to her moving and or throwing things out from resident’s rooms. She gave the plaintiff an oral warning in regard to that, because of complaints.
54 A few days before the Christine incident, she had discussed the performance of the plaintiff with her assistant manager, Ms Moore, and had prepared notes as to the plaintiff’s performance. In conjunction with Yvonne Moore, she had typed the notes at the front desk, and Yvonne Moore had checked them, because she was a better speller. The notes were tendered as exhibit 2.
55 Insofar as the giving out of incorrect medication, she had observed such being done by the plaintiff in the dining room on one lunchtime and had told the plaintiff to be careful and concentrate on what she was doing. She said that she was advised of similar mistakes by two residents, and two staff, and discussed those incidents with the plaintiff. The plaintiff simply answered, “I do my best”. She said that upon being approached and given advice as to doing her job, that the plaintiff did not receive such advice well, the defendant had had to approach her in this regard on some three to four occasions, in that month.
56 On 27 August 2008, the defendant said that she rang the plaintiff at 8.45 to 9.00am, in order to give her a final written warning. However, subsequent to that time, she was advised of the death of Christine, and after discussions with Ms Moore, decided to let the plaintiff go; that is, not to give any formal warning.[10] At somewhere between 9.15 and 9.30am, the plaintiff had arrived. She said she advised the plaintiff of the suicide and the plaintiff was thereafter crying uncontrollably. She had said to the plaintiff she was in no way to blame. She had further discussions and advised that because of the number of mistakes in the plaintiff’s employment, and her not having filled in the hand-over sheet correctly, the defendant had decided to dismiss her.
[10]T144
57 The defendant said that she and Ms Moore spent three-quarters of an hour trying to calm the plaintiff down, and eventually she calmed down. The defendant accepted that there was emotional discussion, after she advised that she did not think PCA work was appropriate for the plaintiff and that she was not going to keep her on, but at no stage was there, in such discussion, any reference to the plaintiff doing a job concerning dead bodies. The plaintiff was orally dismissed.
58 I then asked the defendant why the plaintiff was not retained as a cleaner,[11] and essentially she said that during the time that she was employed as a cleaner, things had gone missing, and she had taken the decision not to take a chance as to such circumstance, albeit that she had never made a note of that.
[11]T156
59 I then asked further questions about exhibit 3 as to the date it was written. The defendant said she believed she had typed it out with the help of Ms Moore the night before the day of the dismissal; that is, 26 August 2008. I put to the defendant that looking at it, that could not be so, or did not appear to be so, as it went on and spoke about things that happened on 27 August 2008, as set out at page 175a, and the proposed warning letter was dated 25 August 2008. The defendant finally stated that she honestly could not recall the precise date that such chronology was typed.[12]
[12]T158
60 In cross-examination, the plaintiff put that on a number of occasions she had asked the defendant and Ms Moore during the discussion on 27 August 2008, “Is this my fault?”[13] and the defendant agreed that she had done so, and said they had answered “No,” a number of times. It was put that the defendant had said to her, “Had you put ‘O.K.’ in the care plan, this all could have been avoided”. The defendant said she had not said that.[14] The defendant denied being present at any time when any discussion took place about any body bags.[15]
[13]T165
[14]T167
[15]T168
61 The plaintiff put to the defendant that at no stage had she ever disturbed or thrown residents’ belongings out; the defendant maintained that she had. Further, the defendant was adamant that the plaintiff did in fact laugh, on the occasions that the defendant had attempted to get the plaintiff to change her ways.
62 The plaintiff also challenged the defendant about the suggestion that the plaintiff had been stealing residents’ money. The defendant said, although she thought that, she could not prove it. The defendant accepted, after a further question from myself, that such was her suspicion only.
63 As to discussion of the suicide, it was agreed by the defendant that the plaintiff could have asked a number of times, “Is this my fault?” The defendant maintained that at all times she answered “No, in no way is this your fault”.[16] The plaintiff put to her that despite that, the defendant had made it clear that in fact it was her fault. This question was asked by me of the defendant during the cross-examination of the plaintiff:[17]
[16]T165
[17]T165
“ Did you, apart from saying it’s [not]* her fault, infer by the fact that she had failed to note the crying and therefore alerted the turnover or someone to call for medical assistance or mental assistance, would you have implicitly said to her, therefore in discussing that, that it was her fault?”
*My amendment to transcript.
The defendant answered:
“No.”
64 It was put by the plaintiff to the defendant,[18] that the defendant said “Had you not put that she was O.K., this could have been avoided. Because of this, we have to let you go.” The defendant said, “I don’t recall saying that, no”. The defendant accepted that she did, however, say during the discussion that the failure to correctly make entries in the hand-over sheet was the straw that broke the camel’s back, and when she said that, she had the hand-over sheet in her hand.
[18]T166
65 The defendant was asked specifically by me, “You say you didn’t blame the plaintiff for the death?” The defendant answered[19] “No, she was told several times that she was not to blame for the death”. The plaintiff, after such answer, stated: “I felt blamed for the death. When someone sacks you over it, you can’t help but feel blamed.”
[19]T167
66 The plaintiff maintained to the defendant that when the comment was made about picking up dead people and body bags, that Ms Moore was present.
Ms E Moore
67 The next witness called was Ms Moore. Ms Moore said she was the assistant manager, and had worked at the premises for ten years. She was a Certificate III Personal Carer, being so certified since 2003. She confirmed the evidence of the defendant, that there were concerns about the performance of the plaintiff, and that she had helped the defendant with preparation of a document which detailed those concerns. Ms Moore said that she was aware of the matters set out in the document, exhibit 3, as she had been told of same by the defendant. Her proof reading the document, was for the purpose of preparing and giving a warning letter to the plaintiff concerning those issues. However, she did not proof read any of the matters referred to, which had occurred on 27 August 2008.[20]
[20]T173-181
68 Ms Moore said that the plaintiff, on 27 August 2008, got to the premises at approximately 10.00am and, upon being advised of the suicide of Christine, became hysterical. She said that both her and the defendant tried to calm the plaintiff down and tell her it was not her fault. The plaintiff was advised by the defendant that she had been asked to come in to be given a warning, and the circumstances of the warning, Ms Moore thought, were gone through. The plaintiff, however, was distraught and was subsequently told, given the mistake in the hand-over sheet and the failure to make a notation, that it was in the interests of both the organisation and the plaintiff for her to leave such employment. Ms Moore said she thought the plaintiff was distraught about both being advised of the suicide and being dismissed from employment. Ms Moore stressed that no one in the discussion accused the plaintiff of being at fault in regard to Christine’s death, nor did she recall the defendant ever saying, words to the effect that had the plaintiff noted crying in the hand-over sheet, Christine would have been saved.
69 Ms Moore said there was discussion, as a result of the dismissal, about the plaintiff’s problem with mortgages and paying for her son’s birthday and Christmas presents. As a result, thereafter, she got the plaintiff a coffee and they sat together under a tree in the garden area. Ms Moore said she had heard that there was a local mortuary, who needed workers, and that if the plaintiff was desperate for money, such pays well and they are always looking for people. Ms Moore said that, having been given that advice, the plaintiff said she would look into it. Ms Moore maintained that at no stage was the defendant part of this conversation, indeed, the defendant was not present, and certainly at no stage did Ms Moore say to the plaintiff that it would be a safe job for the plaintiff, as she would not kill anyone.
70 In cross-examination, insofar as the day that she was sacked, Ms Moore denied that at any stage the defendant had said that if the plaintiff had not written that Christine was okay, all this could have been avoided. Ms Moore said that she had no memory of any discussion of that type.
71 Ms Moore also denied having said at any time to the plaintiff that she should find a job picking up dead people in body bags. To that proposition she said, “That is not what I said”. Indeed, Ms Moore, in regard to this suggestion being again put, said, “That is not what I said, and I'm not that uncaring”.[21]
[21]T190
72 Ms Moore was adamant that when the defendant telephoned the plaintiff on the day of the sacking, the purpose was to get the plaintiff to the premises in order to give her a final warning, as to her employment. Ms Moore was adamant that the typing containing the basis for the warning, was in fact done the night before the plaintiff was asked to come in, in order to be given the warning. Ms Moore said at no stage did she remember prior to the day of dismissal, any discussion with the defendant about the defendant’s suspicions of the thefts, which Ms Moore knew about, in the premises, having been committed by the plaintiff.
73 Mr Meldrum, at page 194, tendered exhibit 3, which was tendered specifically as the chronology prepared by the defendant with assistance from Ms Moore in anticipation of a warning letter.
Final addresses
74 At the end of evidence, the issue as to addresses was considered. It was decided that Mr Meldrum would complete his address so that the plaintiff, with the assistance of her sister, would have the evening to prepare her address for the next morning.
75 Mr Meldrum deliberately addressed in a somewhat truncated and simplistic form, given the plaintiff’s position. There was discussion as to the appropriate questions for the Court to consider and for the plaintiff to submit upon. Upon further consideration of Brown v Maurice Blackburn Cashman,[22] I determined to amend the questions and considerations under the heading “Negligence” to take into account the principles set out in Brown v Maurice Blackburn Cashman and in particular, the decisions of the High Court in Koehler v Cerebos (Australia) Ltd,[23] and generally the considerations as detailed under the heading “Duty of Care” in Brown from paragraphs [158] through to [203].
[22]Supra
[23](2005) 222 CLR 44
76 Mr Meldrum stressed that there was no evidence, and indeed positive evidence from the plaintiff, that at no time were her prior conditions of anxiety or depression, treatment for same or issues of the consequences of multiple rapes when she was a young woman ever being discussed with the defendant, its agents or servants in January 2008, or thereafter.
77 Mr Meldrum stressed that from the date she was employed as a cleaner up until her dismissal, including the period from late June and July when she had also worked as a PCA, at no stage had she ever advised the defendant, its servants or agents of any psychological or psychiatric issue, or treatment for same.
78 Essentially, the submission of Mr Meldrum was somewhat akin to what occurred in Brown. Mr Meldrum submitted that I would be unable to in fact answer the first question so detailed in the negligence elements, exhibit A as C1, as to breach of duty, because I could not be satisfied as to the evidence of the plaintiff in this regard. As I understood Mr Meldrum, given that the plaintiff had the onus of proof, he submitted that I should reject the plaintiff’s evidence that she was told by the defendant on the day of dismissal, in the presence of Ms Moore, that had she correctly recorded her observations in the hand-over sheet, Christine’s death could have been avoided. Mr Meldrum submitted that the making of such a statement was specifically denied by the defendant, and Ms Moore said that she could recall no such statement being made during the conversation in the staffroom.
79 Mr Meldrum stressed that the plaintiff had become particularly upset, upon being advised of the death of Christine. He asked me to consider closely the evidence of both the defendant and Ms Moore, that the plaintiff had become very hysterical and that they had spent a considerable time trying to console her. He further submitted that the additional allegation made by the plaintiff, that during such conversation, that a comment was made to the plaintiff to the effect that she should get a job dealing with dead bodies as she could thereby not kill anyone, should be totally rejected. In this regard, he submitted that the defendant specifically denied making any such statement. Further, he relied strongly on the evidence of Ms Moore that the only discussion as to the future employment of the plaintiff occurred, not in the presence of the defendant, but, only between Ms Moore and the plaintiff; not in the staffroom, but outside in the garden while they were having a smoke.
80 Mr Meldrum referred to Ms Moore’s evidence that she knew that there were jobs available at a local mortuary for good wages and in circumstances where the plaintiff had lost her job and was concerned about paying her expenses, she had suggested the plaintiff could find employment there, and further gave evidence that the plaintiff indicated she may do so.
81 As to such conversation, Ms Moore specifically denied any conversation to the extent as alleged by the plaintiff.
82 Mr Meldrum essentially submitted, that I could not be satisfied that these two fundamental alleged statements occurred, and that as the plaintiff had failed to prove such statements, the case could go no further and should be dismissed.
83 That is, Mr Meldrum submitted that on the facts, I could not even get to the stage of determining what were the particular circumstances of the employment situation on that afternoon that the plaintiff was dismissed, which would enable me to answer the first question concerning the breach of duty detailed in C1.[24]
[24]Exhibit A
84 Mr Meldrum also relied on the issue of credibility insofar as the plaintiff is concerned, specifically the fact that she admitted, both before and after the day of dismissal, she had been convicted of shoplifting charges.
85 Mr Meldrum relied particularly on Ms Moore as being confirmatory of the evidence of the defendant that over a period she had been concerned, and in fact had orally warned, the plaintiff about a number of issues concerning her employment. These issues had been discussed by Ms Moore with the defendant prior to the day of dismissal, albeit that the defendant was unable, on being questioned by me, to be precisely certain when she typed the chronology. Ms Moore was adamant that it certainly occurred prior to the day of dismissal, insofar as she assisted in the preparation of such chronology and as a result, the plaintiff was called to the premises, so that a formal written warning could be given to her the next day.
86 Mr Meldrum submitted to the Court that both the defendant and Ms Moore confirmed that the termination took place consequent upon the defendant being apprised of the death and becoming aware of the circumstances which demonstrated the incorrect entry as to the state of Christine on the day before in the hand-over sheet, which had been filled out by the plaintiff.
87 Mr Meldrum submitted I could not be satisfied to the required standard of there being any intimidation, bullying, harassment, verbal abuse or victimisation undertaken by the defendant and as such, the plaintiff could not succeed.
88 Following the submission of Mr Meldrum, the plaintiff was provided with the amended statement as to negligence elements,[25] the exhibit list, the case of Brown and the transcript of Mr Meldrum’s final address, in order for her to prepare her final address.
[25]Exhibit A
89 On 8 October 2014, I was addressed by the plaintiff.[26] The plaintiff spoke firstly about her credit, and said she is not a person who had treated anyone badly; while she was not perfect, she saw herself as an honest person and certainly she said, despite the admissions, that she had never stolen anyone’s belongings. In this sense, I think she meant residents’ belongings.
[26]T221
90 The plaintiff maintained that she had been made a scapegoat on that day, and the defendant had not cared about her wellbeing. Knowing her reaction to the news of Christine’s death and her sacking, the defendant did not do anything or follow up thereafter by looking after her.
91 The plaintiff submitted that her mental problems arose due to the negligence on that day, and her current state has been produced by such negligence. She submitted that during her employment, she was on an occasion yelled at in front of the residents, by the defendant, in regard to the mistake of medication distribution was concerned, and was told loudly to be more careful. She submitted that during the time she worked as a PCA, she was not properly supervised, and questioned whether even if she had noted in the hand-over sheet that Christine was in tears, whether the defendant would have rung Mental Health for assistance. She submitted that there was no basis to sack her as a cleaner, even if she did make a mistake as a PCA, and that on that day, she was bullied, harassed and intimidated by both the defendant and Ms Moore.
Factual Findings
92 Having considered all the evidence and the submissions as detailed, I find that the resident, Christine, left the defendant’s premises, Brookland House, on the afternoon of 26 August 2008 purportedly to attend a doctor’s appointment.
93 That some time later, the doctor telephoned and spoke to the defendant, concerned that Christine had not attended for the appointment.
94 That the defendant checked the hand-over sheet, which had been completed by the plaintiff, which recorded that the resident, Christine, was “O.K.” at time of handover, being approximately 4.40pm.
95 That that night, or prior to that night, the defendant had considered warning the plaintiff as to the manner of her performance of her duties both as a cleaner and personal care attendant and had discussed the same with her assistant manager, Ms Moore. I accept the defendant’s evidence, confirmed by Ms Moore, that Ms Moore assisted the defendant in preparing notes detailing the chronology in support of the warning, that was going to be given to the plaintiff.[27]
[27]Exhibit 3
96 I accept the evidence of the defendant that she had prepared a written warning to be given to the plaintiff.
97 I accept the evidence of both the defendant and Ms Moore that arrangements were made by way of the defendant telephoning the plaintiff to arrange for her to come to the premises to be given the written warning as to her performance at work on the morning of 27 August 2008.
98 That subsequently that morning, the defendant received a telephone call from the family of Christine advising that Christine had suicided.
99 That the defendant received information from another resident that morning that the plaintiff had observed Christine on 26 August 2008 crying and upset, and thereby the defendant became aware that the plaintiff had failed to record same in the hand-over sheet, or tell any superior of such.
100 I accept the evidence of Ms Moore that at no stage was she told by the plaintiff, on the afternoon 26 August 2008, that Christine had been crying or upset.
101 That as a result of hearing of the death of Christine, the defendant further discussed the warning with Ms Moore, and in the circumstances, decided that a warning would not be given, but summary dismissal would be effected upon the arrival of the plaintiff.
102 That the plaintiff arrived at the premises and was asked to go into the staff room.
103 The plaintiff was told of the death of Christine and at or some stage thereafter, must also have been apprised of, and acknowledged, that she had not appropriately recorded the condition of Christine in the hand-over sheet.
104 I find that this must be so, for otherwise the plaintiff would not have become so upset, and even hysterical, as she was described, nor would she have asked on three occasions, was the death her fault?
105 I accept that the defendant and Ms Moore assured the plaintiff on three occasions, in answer to the plaintiff’s specific question, that the death of Christine was not her fault.
106 I further accept that the plaintiff was summarily dismissed, and as a result, would have been very upset at both that and the news of the suicide.
107 I reject the evidence of the plaintiff, based specifically on the denial of the defendant and the evidence of Ms Moore, that the defendant said at any time to the plaintiff, “This (meaning Christine’s death) could have been avoided if you had correctly made entries in the hand-over sheet.”
108 I have no doubt, given the circumstances, the plaintiff probably did feel guilty about her failure to make a correct entry in the hand-over sheet and, further, that such feelings were compounded by the fact that such led to her dismissal.
109 I reject the suggestion of the plaintiff that Ms Moore, in the presence of the defendant, said words to the plaintiff that she should get a job involving placing dead people in body bags, as that would mean that she could not kill anyone. Specifically in this regard, the defendant denies any such conversation took place, as does Ms Moore.
110 The evidence of Ms Moore, however, is that any discussion of further employment for the plaintiff did not take place in the staff room, but did occur in a later conversation which occurred when she was having a smoke, outside in the garden, with the plaintiff. The plaintiff had expressed concern as to her income and payment of expenses given her dismissal, and Ms Moore said that she knew of an opportunity for employment in a mortuary where the wages were good, provided you were prepared to do such work. Ms Moore’s evidence was that the plaintiff had indicated interest in such work.
111 I have relied in particular upon Ms Moore, who impressed me as a witness, and certainly did not present as a person who would lie about:
(i) the plaintiff being accused of being responsible for the suicide of Christine; or
(ii)make such an uncaring comment, in such circumstances, as to the type of employment the plaintiff should undertake.
112 While this is not an Industrial Court, and the issue before the Court does not concern a claim of unjust dismissal, albeit a particular of alleged negligence, given that the plaintiff had only been involved as a trainee for little over a month, and the circumstances detailed by the defendant, together with the unfortunate suicide and the failure to properly record the condition of a resident in the hand-over sheet, I do not find it was unjust for the defendant to act summarily in regard to the plaintiff’s employment.
113 I accept the evidence of the defendant, as confirmed by Ms Moore, that given the circumstances of the unfortunate suicide and the decision to dismiss the plaintiff, they had treated the plaintiff with as much care and respect as was possible.
114 I specifically find that there was not, as alleged in the Particulars of Negligence, any failure to comfort, console or support, any discriminatory conduct, verbal abuse, intimidation or victimisation, unlawful harassment, bullying, unfair blame or indeed unjust termination of employment.
Conclusion
115 Given the prospective analysis required, and my factual findings, I find that the defendant did not breach the non-delegable duty of care she owed to the plaintiff, and specifically that, acting as a reasonable and prudent employer in the defendant’s position, that the defendant, given the circumstances, would not have foreseen that the system of work involved a risk of psychiatric injury to the plaintiff.
116 I want to make it clear to the plaintiff that I in no way disregard the evidence of her treating general practitioner, Dr Fitzpatrick, as to her reaction and state since her dismissal, such has clearly been unfortunate and most distressing for the plaintiff.
117 The issue that the plaintiff had to meet firstly in this case, and for which the hearing was conducted in Geelong, was whether she could satisfy the obligation in law to prove on the balance of probabilities that the defendant, in the circumstances, had breached her duty of care to the plaintiff. I have not been satisfied the plaintiff has so proved a breach of duty. Hence, the plaintiff’s case against the defendant is dismissed.
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