Finlay v The State of Western Australia - [2012] WADC 132

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FINLAY -v- THE STATE OF WESTERN AUSTRALIA [2012] WADC 132

CORAM: STAVRIANOU DCJ

HEARD: 30 APRIL, 1-4, 7-8 MAY & 17 AUGUST 2012

DELIVERED : 28 AUGUST 2012

FILE NO/S: CIV 574 of 2009

BETWEEN: TERESA LYNN FINLAY
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Employer - Negligence - Stress and excessive work claim - Traumatic incident - Claim for damages for psychiatric injury - Duty of care of employer - Whether reasonable person in position of employer would have foreseen the risk of psychiatric injury to the employee - Breach of duty - Injury alleged to have been sustained in course of employment - Cause of injury

Provisional assessment of damages - Posttraumatic stress disorder - Anxiety and depression

Legislation:

Nil

Result:

Judgment for the defendant

Representation:

Counsel:

Plaintiff: Mr G M G McIntyre SC
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: O'Halloran Legal
Defendant: HBA Legal

Case(s) referred to in judgment(s):

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Dulieu v White & Sons [1901] 2 KB 669
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Nationwide News Pty Ltd v Devandar Naidu [2007] NSWCA 377
Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330
Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317
The State of Western Australia v Watson [1990] WAR 248
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Watts v Rake (1960) 108 CLR 158
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

STAVRIANOU DCJ:

Introduction

The plaintiff, Teresa Lynn Finlay, is aged 47 years having been born on 20 August 1964. From about the end of 1988 she was employed by the defendant in its Department of Community Development.
Mrs Finlay claims damages for personal injury in the form of a mental illness suffered in the course of her employment between late 2003 and 1 February 2007 by reason of the defendant's alleged negligence and breach of contract.
Mrs Finlay's case is that by reason of an incident at work on 12 April 2005 involving abusive and distressing telephone calls made by a customer of the defendant and the circumstances of her employment she developed a mental illness. She has been unable to work for a number of years and is significantly disabled.
The trial of the action concerned liability and damages.
Foreseeability was the principal issue at trial. The question in terms of the High Court decision in Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 is whether, in all the circumstances, the risk of Mrs Finlay sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far‑fetched or fanciful.
It was not in issue that the defendant as employer owed Mrs Finlay a duty of care.
Mrs Finlay alleges that she was required to carry out her duties in an extremely stressful workplace. Her case is that the workplace was likely to engender stress due to the quantity of work to be done with limited resources and the demanding nature of the customers being served.
The primary allegations of breach of duty focus upon the inadequacy of staff numbers and limited security. The system and place of work were alleged to be inadequate.
The defendant denies it has breached any duty to Mrs Finlay and claims that any loss or damage was caused by the existence or an exacerbation of her pre‑existing genetic pre‑disposition to psychiatric illness.

The pleadings

Mrs Finlay's claims

At all material times Mrs Finlay was employed by the defendant. The contract of employment is particularised as being partly oral and partly in writing. A claim for damages for breach of contract is made in the alternative to the negligence claim. The issues which arise in each claim are the same.
Mrs Finlay's case is that during 2004 the department was extremely busy and as a result employees were overworked. The claim was summarised as follows:
1.The defendant was in breach of its duty to take reasonable care not to subject an employee to unnecessary risks of injury because it had not devised, implemented, maintained and enforced a safe system of work.
2.The employer had not provided sufficient appropriately qualified staff, or adequate security measures or work systems to ensure that staff were not subjected to levels of stress and abuse from members of the public whom they were serving which led to injury in the form of mental illness.
3.The defendant was negligent in requiring the plaintiff to perform work which was dangerous because of the inadequacy of the system and place of work provided.
Mrs Finlay's case was enunciated in the statement of claim as follows:
5.Between late 2003 and 1 February 2007 the employee suffered a personal injury by accident, in the form of a mental illness comprising generalised anxiety disorder and/or chronic adjustment disorder, post‑traumatic stress disorder, co-morbid panic disorder with agoraphobia and depression, caused by stress arising out of or in the course of her employment with the defendant at the premises of the defendant, 25 Duke Street, Albany and/or while acting under the instructions of a superior officer of the defendant's department.
6.In particular, the injury referred to in par 5 was manifested in the following instances:
(a)The plaintiff suffered a panic attack at home at or around 2.00 am on 12 November 2004;
(b)The plaintiff suffered a panic attack at home at approximately 12.00 am on 14 November 2004;
(c)The plaintiff suffered a further panic attack in December 2004 whilst driving her motor vehicle;
(d)The plaintiff has also suffered intermittent anxiety related palpitations, breathing difficulties, sinus problems, stomach complaints and other mental problems; and
(e)The plaintiff suffered from extreme anxiety and subsequent frequent panic attacks together with a severe aggravation of all her symptoms following a telephone call taken by her in the course of her employment on 12 April 2005 from a person seeking assistance from the department in which that person yelled and/or screamed at the plaintiff and used frequent obscenities, intimidating and threatening language.
7.The injury referred to in par 5 above arose from the plaintiff being required and/or instructed to perform various duties and being assigned tasks in the course of her employment which comprised an excessive workload in the circumstances in which she was obliged to perform them, including but not limited to the following tasks:
(a)Fleet management;
(b)Telephone and counter enquiries;
(c)Information technology administration;
(d)Assets and property management and property maintenance;
(e)Personal assistance to the manager;
(f)Accounts and salaries management;
(g)Miscellaneous administrative tasks;
(h)Human resources support;
(i)Office security reporting and documentation;
(k)Relief reception duties;
(l)Assistance in the development and maintenance of office systems;
(m)Mentoring and training office and field staff.

The allegations of breach

The pleaded breaches of duty are that the defendant:
(a)failed to provide a safe working environment;
(b)failed to ensure that there were sufficient staff within the department to ensure that the department ran safely for employees;
(c)failed to ensure that there were sufficient security measures and work systems in place on the premises of the department to ensure that no employee was subjected to verbal threats or abuse in the course of his or her employment;
(d)failed to provide the plaintiff with sufficient support, security, assistance and resources to perform her assigned tasks safely;
(e)failed to provide the plaintiff with appropriate support and/or assistance in relation to the incident on 12 April 2005 described in par 6(b) above.
A request for further and better particulars was delivered by the defendant. A copy of the request and answers is annexed.
In summary particulars were sought of:
1.How the defendant failed to provide a safe working environment (particular (a)).
2.What would have been sufficient staff (particular (b)).
3.What would have been sufficient security measures and work systems (particular (c)).
4.What support, security, assistance and resources Mrs Finlay required (particular (d)).
5.What appropriate support and assistance Mrs Finlay required (particular (e)).
In relation to some of the answers there was very little evidence adduced at trial. Specifically, there was very little evidence adduced in Mrs Finlay's case as to the measures that should have reasonably been taken by the defendant in the discharge of its obligation as her employer.

Damages

Mrs Finlay has delivered detailed particulars of her claim for damages.
The most significant component is loss of earning capacity.
Mrs Finlay asserts that because of her work‑related stress she has not returned to her pre‑accident employment or any employment. The claim for all future loss is $503,956. The calculation is based upon an earning capacity to age 70 years of $1,000 per week gross and $762 per week nett.
There is also a substantial claim for past and future gratuitous services.
The defendant's case is that Mrs Finlay has a significant prior susceptibility to psychological symptomatology (even though it was unknown during her period of employment) and that any stresses which have occurred in her employment were of limited effect and duration. If Mrs Finlay is presently unemployable it is due to her pre‑existing personality and other non‑work related factors.

Defence

It is the defendant's case that it could not reasonably foresee Mrs Finlay's alleged injury.
The defendant's case is that Mrs Finlay frequently applied for more senior acting roles. She was willing to learn more skills with a view to advancement. She coped well with her duties. There was in place a system of regular supervision held one‑on‑one. There was on the defendant's case no evidence to support a finding that Mrs Finlay's injury was reasonably foreseeable.

The background events and Mrs Finlay's employment history

The department operated a number of offices in the south of Western Australia. Albany was operated as the district head office for other towns in the region including Katanning. The name of the department changed from time to time during the course of Mrs Finlay's employment.
The services provided by the department to customers included dealing with adoptions, placement of at‑risk children into care, financial assistance for families and problems encountered by parents with teenagers and people with addictions. In these reasons, at times, reference is made to the defendant as the department.
At the age of 18 years Mrs Finlay commenced employment with the State Government Insurance Office (SGIO) in Albany. She worked as a clerical officer (level 1). She was in a small team and enjoyed her employment. She remained in that position for four years until she moved to Perth in about 1986.
At the end of 1988 Mrs Finlay commenced employment with the department as a customer service officer/clerical officer in Albany. Initially this was a temporary position.
On 7 August 1990 Mrs Finlay was appointed as a level 1 administrative assistant. In 1992 her employment was made full‑time. In that same year she was promoted to a position involving level 1 and level 2 duties.
Witnesses who had worked with or had contact with Mrs Finlay at the department gave evidence. Daniel Eric Merrey, Timothy Michael Christie and Kathryn Mary O'Brien were called by Mrs Finlay. Peta Judith Sclater, Sharonne Denise Cunningham and Malcolm James Giddings gave evidence on behalf of the defendant.
Between June 1988 and July 2006 Daniel Eric Merrey worked in the Katanning office of the department.
Between 1994 and 2005 Mr Christie was a senior case supervisor at the Albany office. He was a team leader and effectively the second‑in‑charge.
Ms O'Brien was employed as a counselling psychologist between early 1998 and late 2008 in the Albany office. Her office was situated in close proximity to Mrs Finlay's workstation.
Ms Sclater is a customer liaison officer and receptionist who has worked for the defendant for nearly 15 years.
Ms Cunningham has been employed by the defendant for 28 years. She is currently the business manager for the Albany office. Prior to that appointment she had been a district support officer. She has known Mrs Finlay for around 20 years. She effectively acted as Mrs Finlay's supervisor.
Between August 1997 and 2007 Mr Giddings was the district manager in the Albany office. Mrs Finlay's workstation was situated in a corner area at the front of his office.
The defendant adduced in evidence a number of different types of documents in relation to Mrs Finlay's employment. Much of what follows in this part of the reasons comes from that documentary evidence which essentially was unchallenged. The documentary evidence provided a detailed history of Mrs Finlay's employment by the defendant.
The defendant's system of work included annual reviews of employee performance. Assessments in report form were produced. The reports demonstrate the following:
1.On 16 May 1991 Mrs Finlay was assessed as performing her duties at a high level.
2.On 16 June 1992 Mrs Finlay was assessed as keen, with high personal standards, a valued team member and a credible level 1 officer.
3.On 12 May 1994 and 13 June 1996 Mrs Finlay was assessed as a credible level 1 officer.
4.On 24 February 1997 Mrs Finlay was assessed as a credible district administration assistant. Mrs Finlay advised she was keen to undertake challenges in a level 3 or level 4 capacity.
5.On 27 February 1998 it was noted Mrs Finlay performed at a very high standard but that the restructure will present new challenges. Mrs Finlay noted she was disappointed with the impact of the restructure on the administration area noting her continued desire to obtain challenges at the level 3 or 4 range.
6.On 7 May 1999 it was noted that the role of unit administration assistant was still evolving. Mrs Finlay's work was noted to be of a very high standard. Mrs Finlay continued to request opportunities to work at a higher level and expand her role in the IT area.
7.On 22 February 2000 Mrs Finlay underwent a performance review in which she advised given the lack of opportunities for future advancement and development she would look at external options.
8.On 20 November 2001 it was noted that there was an impending department restructure which raised concerns about the workload for Mrs Finlay's substantive position.
9.On 19 November 2002 it was noted Mrs Finlay worked to a high standard throughout a busy year. She had taken on acting in other roles and her customer service skills were noted to be commendable.
10.On 12 December 2003 it was noted clarification was required in respect to Mrs Finlay's role after the restructure. It was recorded that Mrs Finlay had done well, was a highly valued member of the administration team, providing a very high level of service in both her substantial role and when acting district support officer.
In the course of her employment with the defendant Mrs Finlay attended a number of training courses provided by the defendant. On most occasions the funding for training had been approved by Ms Cunningham.
During 2003 Mrs Finlay continued with her employment by the department. She had annual leave and some periods of sick leave. She was also during this time completing the construction of a house. In this regard she needed time off work and requested she specifically be able to work on a part‑time basis. She applied for and obtained acting positions performing higher duties. Between 4 April 2003 and 23 May 2003 she acted as level 4 district support officer (Ms Cunningham's usual position).
As part of the defendant's system of work Mrs Finlay would attend what were described as supervision sessions with Ms Cunningham. These were held regularly. A memorandum was produced after each session and signed by Ms Cunningham and Mrs Finlay. Mrs Finlay had the opportunity to make corrections or add matters which had been omitted or required inclusion in the memorandum.
Mrs Finlay's performance was reviewed at a supervision session on 24 July 2003. In the memorandum concerning that session it was noted that:
Teresa has been extremely busy as has the Admin Team in general. This has resulted from the significant periods of staff annual, sick and short leave within the admin team. Also since the last supervision session Teresa acted for a period of seven weeks (half time) in the DSO role.
Teresa's performance management documentation was again reviewed and considered appropriate to the current work role …
At that same session Mrs Finlay is recorded as having requested further training.
The memorandum prepared following the supervision session conducted on 17 September 2003 noted that Mrs Finlay's workload was 'picking up again'. It was also recorded that
discussion included some flexibility for Teresa to take short periods of leave as required given her building plans. The opportunity for Teresa to act short‑term in DSO was also discussed and agreed to provided this was on a full‑time basis.
Mrs Finlay wanted to obtain a promotion and explained in her evidence that she always liked challenges. There was no position above hers apart from Ms Cunningham's level 4 position. On 1 October 2003 Mrs Finlay applied for a position as an acting level 4 during Ms Cunningham's absence. The application was successful and Mrs Finlay performed level 4 duties between 13 and 29 October 2003.
Mrs Finlay performed the duties of an acting level 4 well. The quality of her performance is acknowledged in the supervision session note of 12 December 2003 in which her role is described as continuing to be very busy but 'she is feeling comfortable and managing well'. On 12 December 2003 Mrs Finlay's performance was reviewed by Ms Cunningham. A written report was prepared. It was signed by Mrs Finlay, Ms Cunningham and Mr Giddings. The report allowed for Mrs Finlay to make any comment or provide feedback. There was no comment or feedback from Mrs Finlay. Mr Giddings comments, which appear on the report dated 16 January 2004, were:
Teresa is a highly valued member of the admin team and she continues to provide a very high level of service in both the substantive role and when acting as DSO.
I am satisfied that as at the end of 2003 Mrs Finlay was acknowledged by her superiors to be a conscientious and diligent worker. There was no suggestion in the evidence of any inability to perform or cope with her duties. Indeed, she demonstrated a capacity to perform in an acting capacity the higher duties of a level 4.
The first supervision session during 2004 occurred on 29 January. Ms Cunningham conducted the session. At that meeting the question of career development for Mrs Finlay was discussed. It was acknowledged that options in this regard in administration were limited and it was suggested to Mrs Finlay that she consider a position as a development finance officer.

The documents produced included sick leave and annual leave applications made by Mrs Finlay. On occasions leave applications were made retrospectively. The leave requests required the insertion of an explanation for the absence.
On 30 January 2004 and 18 February 2004 Mrs Finlay took leave for urgent personal business.
On 5 February 2004 Mrs Finlay took one day of her annual leave.
On 2 March 2004 Mrs Finlay had one day's sick leave. The stated reason for the absence on the leave application advice form was nausea/gastro.
Between 26 March 2004 and 29 March 2004 Mrs Finlay took annual leave.
Between March and June 2004 a further supervision session was conducted by Ms Cunningham with Mrs Finlay. In the supervision session memorandum Mrs Finlay is described as having managed the acting period 'well as anticipated'. It was also noted that the workload in the 'admin team has been very busy for some time'. Reference is made to discussion as to the possibility of Ms Cunningham obtaining additional assistance for several weeks to clear backlog.
Between 30 March 2004 and 8 April 2004 Mrs Finlay took annual leave.
On 3 June 2004 Ms Cunningham conducted a supervision session with Mrs Finlay. The supervision memorandum noted that the administrative team's workload 'has continued to be very heavy and with additional tasks relating to various (IT) system changes and faults, support to children's services and end of financial year processes this has compounded'.
On 28 June 2004 Mrs Finlay took one day of travel leave.
On 15 July 2004 Mrs Finlay completed a written expression of interest in relation to the acting/relieving position of district support officer level 4. At that stage her role was as a district administration assistant.
On 20 July 2004 Ms Cunningham recommended Mrs Finlay for the level 4 acting position.
Between 2 August 2004 and 17 September 2004 Mrs Finlay acted on a full‑time basis as district support officer.
On 29 October 2004 Mrs Finlay underwent a supervision session with Ms Cunningham. The workload of the administration team was described as 'very heavy and is increased by ongoing development of tasks for which the complexity and involvement seems to be increasing'. It was noted that Mrs Finlay had identified a desire to expand her skills in relation to HR and budget forecasting.
Mrs Finlay in her evidence described the workload as being very heavy.
On 5 November 2004 Mrs Finlay attended a training session in Perth.
On 11 November 2004 Mrs Finlay had one day of sick leave. The explanation for the leave provided on the leave request form was 'sinus congestion'.
On 13 November 2004 Mrs Finlay had her first panic attack whilst at home and was taken to hospital by ambulance.
Between 15 and 19 November 2004 Mrs Finlay took leave. The leave request form notes 'multiple ailments'.
On 22 November 2004 Mrs Finlay returned to her employment and resumed her normal duties.
On 30 November 2004 Mrs Finlay took personal leave. The leave request document notes sinus/bronchial infection.
On 9 December 2004 Mrs Finlay attended at hospital emergency complaining of gritty eyes, being unable to sleep and nausea. The hospital record contains a note of 'no obvious distress. Make‑up on'.
On 2, 3, 4, 9 and 10 December 2004 Mrs Finlay took personal leave. The leave documents in each case note sinus/bronchial infection as the explanation for the leave request.
In the week ending 16 December 2004 Mrs Finlay worked 30 hours 48 minutes.
On about 18 December 2004 Mrs Finlay had a panic attack.
On 23 December 2004 Mrs Finlay had personal leave. The explanation for the leave contained in the request form was 'sinus with nasal infection'.
On 27 December 2004 Mrs Finlay attended hospital emergency. The emergency note referred to a presentation of a dry mouth and chest tightness.
The defendant adduced in evidence a document summarising Mrs Finlay's time off work for the period between 11 November 2004 and 22 March 2005. The document provides as follows:

From Date	To Date	Amount	Comment
22-Mar-05	23-Mar-05	6.58 hours	Stomach Disorder
21-Mar-05	21-Mar-05	7.5 hours	Stomach Disorder
24-Feb-05	24-Feb-05	7.5 hours	Sinus/headache
23-Dec-04	23-Dec-04	7.5 hours
9-Dec-04	10-Dec-04	15 hours	Bronchial Infection
6-Dec-04	6-Dec-04	7.5 hours	Sinus infection
2-Dec-04	3-Dec-04	10 hours	Bronchial Infection
30-Nov-04	30-Nov-04	2.33 hours	Sinus/Bronchial Problems
22-Nov-04	22-Nov-04	7.5 hours	Multiple Ailments
15-Nov-04	19-Nov-04	37.5 hours	Multiple Ailments
11-Nov-04	11-Nov-04	1.33 hours

Between 1 November 2004 and 12 April 2005 none of the leave requests referred to or suggested any form of psychiatric or psychological illness or that Mrs Finlay was suffering stress.
Mrs Finlay's general medical practitioner wrote short notes certifying Mrs Finlay as unfit for work on 15, 16 and 17 November 2004, 2 December 2004, 3 December 2004, 9 and 10 December 2004 and 23 December 2004. None of the certificates contained any description or opinion as to the nature of the condition rendering Mrs Finlay unfit for work.
Notwithstanding the medical problems experienced in November and December 2004, Mrs Finlay was back at work in January 2005.
In the week ending 13 January 2005 Mrs Finlay worked 40 hours 17 minutes.
On 11 January 2005 Ms Cunningham conducted a supervision session with Mrs Finlay. The memorandum noted that 'workloads in the admin team continue to be heavy'. Attached to the memorandum was a detailed handwritten note of 'tasks Teresa has been involved in during the last period'. Mrs Finlay was due to go on leave in January/February and it was noted that there will be 'one day to provide some handover and general review immediately prior to Teresa taking leave'. There is no mention of stress, panic attacks or inability to cope.
Mrs Finlay was specifically asked in cross‑examination about knowledge of her state of health up to 11 January 2005. The evidence was as follows:
CLYNE, MR: Well, up to that stage, 11 January 2005, is it the case that all that your office knew about your health was that you'd had ongoing sinus and bronchial problems? – They – I had problems with sinus. I'd also had problems with my stomach - - -
Yes? - - - - and I had told them about my stomach and my team leader had even suggested that I – of the type of food to try and eat because I was having problems with my stomach.
But in terms of discussing work, you were still indicating that you wanted to learn more so as to progress further? – I – I'd always been a person right from school who, even if I was ill I would go to work. If I had a cold, I would go to school if I had a cold and that didn't, I think, meant that I shouldn't proceed to try and better my – myself and at those times - - -
All right. Well - - -? - - - - - those were illnesses that we put and I certainly felt that that was allergies and all those things and – and then I had the panic attack and then I continued to have problems after.
Between 24 January 2005 and 4 February 2005 Mrs Finlay took annual leave.
On 24 February 2005 Mrs Finlay took personal leave for one day. The explanation provided on the leave request form was sinus/headache.
On 25 February 2005 Ms Cunningham conducted a supervision session with Mrs Finlay. This memorandum, as with the one of 11 January 2005, had handwritten notes attached. It was noted in the memorandum that the workload of the 'admin team was very heavy'. It was also noted that Mrs Finlay would be acting for two weeks as district support officer. However it was also noted that during this period 'relief will also be provided in Teresa's AA position'.
In the week commencing 25 February 2005 Mrs Finlay worked 38 hours 16 minutes. In the following week she worked 39 hours 20 minutes.
Between 9 March 2005 and 18 March 2005 Mrs Finlay acted in the position of district support officer. This was a position that she had applied for.
In the period between 11 March 2005 and 24 March 2005 Mrs Finlay worked approximately 63 hours.
On 21, 22 and 23 March 2005 Mrs Finlay took personal leave. The explanation on each of the two leave request forms for these days was stomach/gastric disorder.
On 4 April 2005 Mrs Finlay attended upon her general practitioner. She told her she had been bloated and had pain in the central chest and was anxious.
On 7 April 2005 Mrs Finlay's chest and pelvis were examined. No abnormalities were detected.
On 12 April 2005 Mrs Finlay received the abusive telephone calls.
At trial there was no issue that a person had yelled and sworn at Mrs Finlay during one of the telephone conversations on 12 April 2005. From April 2005 Mrs Finlay attended upon her general practitioner from time to time.
On 13 June 2005 Mrs Finlay was reviewed for the first time by a psychiatrist who diagnosed her as suffering a major depressive disorder of moderate severity with a co‑morbid panic disorder.
In about September 2005 Mrs Finlay returned to work but on reduced hours.
By August 2006 Mrs Finlay was working 20 hours per week.
In January 2007 a report was published following an enquiry into the department conducted by Prudence Ford.
On 7 February 2007 Mrs Finlay's position was advertised by the defendant. She left the defendant's employment shortly thereafter and has not worked since. She maintains that she has been totally unfit for employment since then.

Legal principles

Employer's duty

At common law an employer has a non‑delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. The duty is 'that of a reasonably prudent employer': Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18, 25 (Dixon & Kitto JJ).
The duty requires an employer to take reasonable steps to provide safe plant and machinery and a safe system of work (Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 [34]).
In Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173 Buss JA said [81] – [82]:
The standard of care (that is, the measure of the discharge of the duty of care) applicable to an employer is what, if anything, a reasonable person in the employer's position would have done by way of response to the foreseeable risk that its employees may suffer injury as a result of a particular act, omission or circumstance.
The standard of care required in relation to each employee must be determined having regard to the facts and circumstances applicable to that employee and his or her employment of which the employer knows or should know. See Illawarra Area Health Service v Dell [2005] NSWCA 381 [114].
If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards (Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 [12]).
The obligation is to take reasonable care and does not mean that the employer must safeguard the employee completely from all perils (Vozza v Tooth & Co Ltd (1964) 112 CLR 316, 318 (Windeyer J); Hamilton v Nuroof (WA) Pty Ltd, 25; Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, 307 ‑ 308.
Reasonable foreseeability is material to questions of the existence and scope of a duty of care, breach of duty and remoteness of damage: Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317 [12] (Gleeson CJ), [96] (McHugh J).
A risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far‑fetched or fanciful is real and therefore foreseeable. The existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 48 (Mason J).
Reasonable foreseeability of a risk is to be determined objectively: Roads and Traffic Authority (NSW) v Dederer[2007] HCA 42; (2007) 234 CLR 330 [70]. The test of reasonable foreseeability, as stated in Shirt, must be applied without hindsight. The test is undemanding: Koehler v Cerebos (Australia) Ltd [54] (Callinan J).
It is unnecessary that a defendant should have foreseen the precise risk of injury or damage, or how it occurred. It is sufficient if the risk is within a class of risks that the defendant should, in a general way, have foreseen: see Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [87] (McHugh J).

Breach of duty

In deciding whether there has been a breach of a duty of care, Mason J in Wyong Shire Council v Shirt enunciated the nature of the enquiry as follows (47 ‑ 48):
The tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

Psychiatric injury

The employer's duty of care includes a duty to take reasonable care to eliminate all risks of injury, which includes both physical and mental injuries (Tame [140] (McHugh J)).
In Koehler v Cerebos (Aust) Pty Ltd the plaintiff had succeeded at trial in her claim for damages for psychiatric illness arising from an alleged excessive workload. The Full Court of the Supreme Court of Western Australia allowed the defendant employer's appeal and dismissed the claim. It concluded that the defendant had no reason to suspect the plaintiff was at risk of psychiatric injury. The plaintiff's appeal to the High Court was dismissed.
In the joint judgment McHugh, Gummow, Hayne and Heydon JJ referred to two reasons why the Full Court was right to reach the conclusion it did. First, the plaintiff agreed to perform the duties which were a cause of her injury. The court described this reason as being of 'limited significance': [28]. Secondly, the employer had no reason to suspect that the plaintiff was at risk of psychiatric injury: [27]. There was no indication either express or implied of any particular vulnerability of the appellant to psychiatric injury or that her employment was putting her at risk of such injury.
In the joint reasons their Honours (citations removed) stated the relevant principles as follows:
[29]Although, in this case, the agreement to perform the work has only the limited significance we have indicated, that is not to say that, in another case, an employee's agreement to perform duties whose performance is later found to be a cause of psychiatric injury may not have greater significance. An employer may not be liable for psychiatric injury to an employee brought about by the employee's performance of the duties originally stipulated in the contract of employment. In such a case, notions of 'overwork', 'excessive work', or the like, have meaning only if they appeal to some external standard. (The industry evidence adduced by the appellant was, no doubt, intended to provide the basis for such a comparison and, as noted earlier, the Commissioner drew a comparison of that kind by concluding that the appellant's workload was excessive.) Yet the parties have made a contract of employment that, by hypothesis, departs from that standard. Insistence upon performance of a contract cannot be in breach of a duty of care.
…
[33]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.
[34]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.
[35]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.
[36]Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer's obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied.
…
[41]The conclusion that the employer had no reason to suspect that the appellant was at risk of psychiatric injury is the reason upon which the Full Court's conclusion hinged. Here there was no indication (explicit or implicit) of any particular vulnerability of the appellant. As noted earlier, she made many complaints to her superiors but none of them suggested (either expressly or impliedly) that her attempts to perform the duties required of her were putting, or would put, her health at risk. She did not suggest at any time that she was vulnerable to psychiatric injury or that the work was putting her at risk of such an injury. None of her many complaints suggested such a possibility. As the Full Court said, her complaints may have been understood as suggesting an industrial relations problem. They did not suggest danger to her psychiatric health. When she did go off sick, she (and her doctor) thought that the illness was physical, not psychiatric. There was, therefore, in these circumstances, no reason for the employer to suspect risk to the appellant’s psychiatric health.
In Nationwide News Pty Ltd v Devandar Naidu & Anor [2007] NSWCA 377 the significance of the nature of the enquiry as to breach being prospective was described by Spigelman CJ as follows [20]:
The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.

Spigelman CJ continues [23]:
The reasoning and result in Koehler confirms this analysis. It may well be the case that it is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury. That does not, however, lead to the conclusion that the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough.

Causation

Establishing a connection between the plaintiff's injury and the defendant's negligent act or omission is a prerequisite to the recovery of damages.
At all times the plaintiff has the legal burden of establishing that the defendant's negligent act or omission caused or materially contributed to the plaintiff's injury.
The standard of proof is the balance of probabilities.
A causal contribution is 'material' if it is shown on the evidence not to have been negligible: The State of Western Australia v Watson [1990] WAR 248, 286.
Whether or not a causal connection exists between a breach of duty and any harm suffered is a question of fact to be determined as a matter of common sense and experience: March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515, 522 ‑ 523.
It is unnecessary for the plaintiff to prove that the defendant's negligence was the sole cause of the injury or damage – it is sufficient if it was a cause: Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112, 120.

November/December 2004

In this and the next part of these reasons the evidence in relation to the panic attacks pleaded in par 6 of the statement of claim and the incident of 12 April 2005 is outlined. In subsequent parts of these reasons evidence of other witnesses is referred to, some of which concerns these matters.
On Saturday, 13 November 2004 at about 2.00 am Mrs Finlay had what she described in evidence as a massive panic attack. The circumstances as she described were that her small dog had jumped onto her bed when she had been sleeping. She described her physical symptoms as being chest tightness, a dry mouth and pressure down her right arm. Mrs Finlay gave evidence that work had been extremely demanding on the Friday (12 November 2004). There had been phone calls and 'trying to deal with people's issues'.
Mrs Finlay had woken her husband who had called an ambulance. She was taken to hospital.
Mrs Finlay gave evidence that her heart 'just wouldn't stop going' and she could not breathe. She described being fearful, being kept overnight and having her heart monitored whilst in hospital. She described in very florid terms how when she was in emergency she had uncontrolled shaking, her legs were just locking up and she could not stop.
On the Saturday morning she was permitted to leave hospital.
Mrs Finlay gave evidence that on the Sunday evening of the same week she had had another panic attack at home. On this occasion she had not gone to hospital.
On Monday, 15 November 2004 Mrs Finlay attended upon her general practitioner Dr Ure who provided an off work certificate for one week. It was Mrs Finlay's evidence she did not communicate with her employer about what had occurred until she returned to work on the following Monday when she told her supervisor she had a panic attack. She gave evidence that 'I made it very clear'.
Mr Finlay gave evidence as to an event on 13 November 2004 when Mrs Finlay was taken to hospital. He described that Mrs Finlay had woken him, and said she had heart problems. It was Mr Finlay's evidence that a hospital nurse had told him that Mrs Finlay had suffered a slight panic attack. She had been released at about lunchtime and Mr Finlay then took her home.
In December 2004 Mrs Finlay had a further panic attack. On this occasion she had been driving and was caught in traffic because of a motorcycle rally. She described in her evidence how she had suddenly had a wave of palpitations and a dry mouth. The situation had gradually passed. She could not recall the date of the incident but knew it was a Saturday before Christmas. Her evidence was that in the week before the incident conditions at work were pretty much normal. There was no mention in her evidence of any excessive duties during this period or any inability on her part to cope.

The April 2005 incident

Mrs Finlay described the incident of 12 April 2005 with a customer as being extremely abusive. It was her evidence she had spoken to the person three times on that day. The third call was the most abusive and distressing of those received. The customer wanted to make a complaint and he would only talk to Mr Giddings. Her description of what occurred on 12 April 2005 was as follows:
I had a – this first phone call in the morning and this fellow was very abusive and he got abusive and - - -
What – what – when you say, 'Abusive', what was he actually talking to you about? - He wanted to make a complaint against one of the Katanning staff who was dealing with his case, but he didn't go into details about it. And I told him that the manager wasn’t available, he was at a meeting and that he would be back at 12 o'clock.
What time was this phone call at? - Maybe just before 10, maybe.
And - - -? - And then within a very short while he rang again.
All right. We'll just go back to the first phone call. When you say he was abusive, I mean what – what was he actually saying that was abusive? - He was effing and carrying on and - - -
Was he speaking loudly? - Pardon?
Was he speaking loudly into the phone? - He was angry. You could tell that his tone was extremely angry and he was quite loud, yes. And he demanded – I mean he was demanding to speak to the manager and I kept saying, 'I'm sorry, he won't be back, we'll take a message and pass this on and have him call you'. In a very short time, maybe 20 minutes or something, I'm not quite sure now, he rang back again and it was just – normally Peta would have picked the call up, it was receptionist, but I got that one and then I got the next one and he was still 'bloodies' and loud and very irritated and agitated and no way was he going to anybody. He was going to talk to that Mal – 'damn Mal Giddings'. He was going – he was making – and I - - -
So – so he knew Mr Giddings, or he - - -? - Yes.
- - - met him? - And he said – or as far as I know, yes he did.
Why? He was using his name? - Yes.
Yes? - And he said I want – I want to talk to him, and I explained again that he wasn't going to be back, he was in a meeting. He was not going to be back until 12, and we'd put another message on the email, priority. We could put priority. And then it got round to a bit before – I had to go down – not long before I had to go down and relieve Peta Sclater. She had luncheon at 12. A little bit before he rang again, she got his call. And when I went down then she put the phone down and I said was that this fellow and I said, 'This angry' and she said, 'Yeah'. I said, 'Was he abusive?' She said, 'Yes' and she just went - she just went to lunch. She didn't hang up on him or anything. She just - - -
So she put the phone on the desk, but not on the receiver? - Yes. She was - she was trying to deal with him.
Yes? - She was trying to tell him the same as I had that he wouldn't be back till 12.
All right? - And I think within - virtually within a couple of minutes maybe of her going, it must have been a bit before 12. Mal walked in the door, through the backdoor. I went straight up to him, I told him this fellow had called and that he had been very abusive. He was very angry and he wanted me to complain about a particular staff member, but he would not talk to anyone except Mal and Mal just - he just went - and then he walked off.
He shook his head and he walked off? - He just went - and he walked off and so he had all these emails waiting for him, telling him about this fellow and, anyway, the fellow rang back again and I said to him the manager was back and went to put the call through and said the guy was on the phone and to talk to him and he said he wouldn't take the call. He said, 'I'm not taking the call'.
Mr Giddings testified in relation to the incident on 12 April 2005. On that day he was in a meeting. In the course of the meeting Mrs Finlay had rung him three times.
On the first occasion Mr Giddings told Mrs Finlay that he was in a meeting. Shortly thereafter she rang again and told him the caller was insistent on speaking to him. Mr Giddings could not recall whether he had told her that he would call the caller back or had referred the caller to Mr Christie. About five minutes later Mrs Finlay rang Mr Giddings for the third time. She told him the caller was becoming abusive. Mrs Finlay did not seem overly anxious and Mr Giddings had reminded her that if the caller was abusive she could advise him she was not going to listen and terminate the call. This was what he described in his evidence as a fairly common practice in the organisation. I accept that to be the case.
Mr Giddings spoke to Mrs Finlay after he had finished his meeting. It was his view that when he spoke to her she seemed relatively calm. She told him she thought that it was related to panic and that she had had a panic attack. This was the first occasion Mr Giddings knew that Mrs Finlay had actually suffered panic attacks. I accept that evidence.
Mr Giddings explained why he could not take the call:
It was a very important cultural meting, and it would have been quite offensive to the Aboriginal people to – to interrupt that, and it's about discussing men's business.
On 14 April 2005 Mr Giddings completed an occupational health and safety report form. The report contains a handwritten note from each of Mrs Finlay and Mr Giddings as to the incident of 12 April 2005.
Mrs Finlay's notation is:
The shouting triggered off an anxiety attack whilst I was trying to advise the client repeatedly that Mal wanted him to speak to Tim T/L. The abuse - became fervent wanting me to get Mal, I put the client on hol. to advise Mal the situation was out of hand and Mal repeated the call could speak to Tim and directed I hang up if the abuse continued. I advised the caller that he would have to talk to Tim at which he told me to tell Mal that he would be lodging a complaint and hung up.
Mr Giddings' notation is:
Teresa‑Lynn discussed with myself immediately after event. It was reinforced that staff do not need to put up with abusive behaviour and caller should be advised that if such behaviours continues the call will be terminated. Teresa's reaction to an unpleasant, but not uncommon event was discussed and acknowledged by Teresa as related to anxiety attacks. Confidential discussions have been held with Teresa's supervisor and appropriate follow up action will be offered to Teresa.
Mrs Finlay was asked in cross‑examination about whether Mr Giddings had told her to hang up the call. Her evidence was 'Well, he said he told me that, but he did not'. She explained in her evidence she was not in a position to do that because she had frozen.
Mr Giddings was cross‑examined in relation to recordings made in Mrs Finlay's general practitioner's notes. Mr Giddings denied he had told Mrs Finlay that she should have been more aggressive. He accepted that he may have told her to be more assertive. He explained in his evidence that what he had said to Mrs Finlay was 'more about coaching – for future events'. Mr Giddings could not recall hearing about Mrs Finlay having anxiety attacks, several months or weeks prior to that occasion.
I am satisfied based upon the evidence of Mr Giddings that Mrs Finlay received an abusive telephone call. Mr Giddings was contacted by Mrs Finlay in the course of her calls with the customer. In her notation made on 12 April 2005 Mrs Finlay confirms that Mr Giddings told her to hang up if the abuse continued. That accords with Mr Giddings' evidence which I accept. I am satisfied Mr Giddings told Mrs Finlay to hang up if the abuse continued.

Witnesses called

Witnesses called by Mrs Finlay

Teresa Lynn Finlay

When Mrs Finlay was promoted to level 2 administrative assistant her role was as personal assistant to the manager. She also did typing, filing and spreadsheets. Whilst she was not the receptionist, she did answer the telephone from time to time and as part of her role would also relieve in reception. She also dealt with ministerial enquiries. She assisted in human resources. She gave evidence she did not have any problems performing any of her assigned tasks and had received customer service awards. She said in evidence she had received the awards consecutively. This was in about 1991. Mrs Finlay gave evidence that she enjoyed her work very much. She could not recall feeling any significant levels of stress at the time. She gave evidence the manager of the department (Mr John Dean) could be quite intimidating and that he expected a lot. Mrs Finlay gave evidence that throughout the 1990s when she was working for the defendant she did not feel any significant levels of stress.
From 1997 onwards Mrs Finlay began to have more responsibility including the management of vehicles. Mrs Finlay gave evidence that in the period between 2000 to 2005 department resources, including personnel, were being lost and not replaced. During this period her workload increased significantly.
Mrs Finlay's workload was increased because there were 'extra vehicles, extra people, human resources'. When asked to describe how she was coping with her tasks she said she was doing her job very well. This evidence of Mrs Finlay is consistent with all of the evidence adduced at trial as to her capacity to cope with her duties.
Mrs Finlay gave evidence that prior to November 2004 she started to get sick. It was her evidence that other staff as well were being asked to do more than one job while someone was on leave.
Mrs Finlay gave evidence that in the Albany office there were about 16 staff, most of whom were part‑time.
Mrs Finlay gave evidence that in 2000 Sharonne Cunningham held the level 4 position in the Albany office. Ms Cunningham had originally been a level 2 when Mrs Finlay commenced and then had been promoted to level 4.
In relation to level 4 duties Mrs Finlay was asked about the performance of duties at that level and said:
Okay. If we can come back then to the question – you were saying that often people had to do two jobs. What did that mean for you personally? What – what – did you have to do other people's jobs? – I was pretty much expected, I believe, to put – to – to be the level 4, and initially that of – of doing the level 4 position, prior to those years you would just put in – you – if you applied, and you got that position as acting, then you just did that job. But as time went on, and they started to get you to work both jobs, and you would have to try and juggle between your job and the other higher‑level job, initially they did start off that you would – you might apply for the position. They wouldn't offer travelling allowance, they wouldn't advertise outside.
All right. This – you're speaking of a level 4; is that a level 4 administrative assistant, is that what you ‑ ‑ ‑? – No, it's the supervisor. That's the team leader district support – what was – what then – what became the district support, but it was the team leader for the - - -
All right? - - - - (indistinct).
And what's the – what are the jobs of – of the level 4 team leader? – It was managing the budget, managing human resource contracts, obtaining and going through the process of getting criminal record check clearances, dealing with some very complicated human resource problems, supervising the admin team, the clerical team. There was - - -
Now, is - - -? - - - -very significant – quite often a lot of pressure applied, not only to the Albany person in that role, and then in the – and in the role that I normally held, but also within the other districts, the other district and support officers, the team leaders, they were struggling with workloads.
When asked about her duties as a level 2, Mrs Finlay said:
McINTYRE, MR: All right. Now, you – you were a substantive level 2, is that right? And you were then working in – in the level 4 position. Does that mean – is that two – is there a level 3 in between? – No, there was no level 3 in Albany. In 1997 or thereabouts, I think it got a bit – I think the politics came into again, and they created an admin bureau, which was supposedly that the – the team leader and the Albany admin office basically was – the position was basically taken away. So the – the majority of the work at the local level would be left to the level 2, and that the admin bureau staff that were level 3s and 4s and upwards would deal with those matters. But they were – they were hopeless. They were really hopeless.
Well, what do you mean by that? – They would not take on the responsibilities to deal with things. We had deadlines put on tasks, very short – very short response.
Are these people in the Albany office, or are - - - ? – No, these were in Perth.
Notwithstanding what Mrs Finlay said about the request to perform level 4 duties, there was no evidence of any complaint by her to the defendant in relation to the performance of duties at that level. When she was an acting level 4 she received increased remuneration.
When asked to describe the defendant's requirement to do two jobs Mrs Finlay said:
It was very difficult. And they started to do it where they would not pay you – they would not put up for acting relieving for you. They would make you keep a record of every single task that you did, and you had to keep a time on the task, and what you'd done. You'd – you'd have to keep just your own record. And how many hours or whatever that totted up ‑ ‑ ‑
All right? - ‑ ‑ ‑ at the end of that period that the person was away. Then they would put in an acting relieving form afterwards, and you would be paid. And I remember one staff member came up to me, and I'd been doing my job and the level 4, and it was very difficult just to separate between the two. You were being bombarded from staff with issues for level 4, and then within two minutes you might have issues that related to the level 2. You would have to go then and relieve on the front counter as level 1, and if that person was away sick, you were left to do the whole lot.
Mrs Finlay gave evidence that the usual receptionist, Peta Sclater, was frequently on sick leave and there was no back‑up relief at all. In her evidence she said that there would not have been 'more than a month or two where there wasn't a sick leave form that went in'. Mrs Finlay gave evidence that there was one occasion when Ms Sclater had run out of the building in front of her.
Mrs Finlay gave evidence she was concerned about the health of the receptionist Ms Sclater and had spoken to Ms Cunningham about her. She said she told Ms Cunningham that all Mrs Finlay's illnesses and stomach problems were due to stress and that she did not know she could cope. She said she told that 'directly to her face'. It was her evidence that Ms Cunningham had said in response 'I'm stressed too'. That particular incident was not put to Ms Cunningham in cross‑examination.
Mrs Finlay contended that one of the instructions given by the defendant from which her stress arose was that she work between 8.15 am and 5.00 pm each day (see answer 17(F)(a)).
Mrs Finlay gave evidence‑in‑chief that she would sometimes be at the office at 5.00 pm. When asked to describe her usual start time she said anything from quarter to 9.00. The office hours were 8.15 am to 4.30 pm. When giving evidence in relation to the hours she added that there was a telephone message machine that needed to be checked every morning.
I do not accept that there was anything unreasonable in the defendant requiring attendance by Mrs Finlay during the specified hours. The request was no more than one to work office hours.
There was no evidence that such a requirement to work hours did contribute in any way to her condition. In any event requiring a person to work the hours outlined could not constitute a breach of duty.

In 2004 Mrs Finlay began to feel unwell. She could not remember precisely what month it was. She said it went on for several months and she had had it for 'the whole seven years'. She described it as being 'extreme stomach pains and sinus, sinus and allergies I had never had before'. Mrs Finlay gave evidence she had gone to the chemist in relation to her stomach problems. She was buying antihistamines for the allergies. She gave evidence she would have problems breathing at work in the office and she would have to go to hospital. No other employee who worked with Mrs Finlay gave evidence of her problems breathing at work and the requirement she go to hospital.
Mrs Finlay gave evidence that on one occasion her husband had come into her work unexpectedly to take her to lunch. On this occasion she felt she could not breathe. It was her evidence she had told Sharonne Cunningham. Her husband had arrived and taken her to hospital. Ms Cunningham had on Mrs Finlay's evidence given her permission to go to hospital. Neither Ms Cunningham nor Mr Finlay gave evidence in relation to this particular incident. This incident had on Mr Finlay's evidence occurred before November 2004.
Mrs Finlay's evidence was that in June 2004 she had been asked to do two jobs. The reason why she was required to do two jobs was because her team leader, Ms Cunningham, was taking extremely long periods of time off which she said was two or three months at a time. Mrs Finlay was angry because she did not want to do the two jobs. The pressure was in her view absolutely enormous. Mrs Finlay's evidence was that she made it clear that it was not feasible or appropriate to do two jobs. She described being coerced into doing two jobs. She gave evidence that she said to Ms Cunningham she would do her job or the supervisor's job but not both. It was Mrs Finlay's evidence that 'they relented and they accepted that I worked one job or the other'. It was Mrs Finlay's evidence that Ms Cunningham was going on leave at the time. When Ms Cunningham returned to work Mrs Finlay started to have breathing problems and had problems with allergies and her sinuses were, on her evidence, 'really bad'. She explained in her evidence that the problems she was experiencing meant she was unable to sleep and could not breathe and would sit up for hours. She gave evidence she was too scared to go to bed in case she stopped breathing. It was her evidence that at work she told Ms Cunningham she had not slept, had difficulty breathing and was taking medication. Mrs Finlay's evidence was that she was having difficulty coping at work at the time. At home she would have stomach tension and on occasion when her husband was not at home it was necessary to call her father to take her to hospital.
On 13 November 2004 Mrs Finlay suffered the first panic attack.
Following the April 2005 incident Mrs Finlay was off work and did not return until about 19 September 2005. It was her evidence that she returned to work doing two hours per day three days a week. This was a graduated return to work programme. She would work a couple of hours and then go home. She would be in tears. She described her condition as follows:
… I would be in tears and lay in front of our heater and - cos body was rigid, tight, from tension and I would lay on the floor and cry and cry. And my - my husband would be doing the cooking and looking after things and I'd lay there for probably a couple of hours before it would start to - - -
Over time Mrs Finlay was able to increase her work hours and gave evidence she was trying to deal with her work. It was her evidence the thing which ultimately caused her to cease work was that she had been intimidated and bullied.
Mrs Finlay described a conversation with Mr Giddings on the day she left the department as follows:
And he said, 'If you can't tell me that you'll be better by' - I think it was two - by the end of March, he said, 'I'm gonna advertise your job'. And he said something to the effect that there were - something had must have been said that I hadn't been able to do things, but I had managed to do a lot - go a long way on the tasks. But I couldn't handle the phone properly, and I still had - I was still really unwell. And I - he said that he was going to toss my job, and I said, 'I can't tell you that. I can't tell you that'. But he also knew that that week I had been abused by three people again, and I had told my team leader, Sharonne, each time what had happened. And I'd been abused at a counter by a woman. I'd been abused on the phone by someone else, and cos the phone was hard enough. And then one of the staff - the resource officer, she - because I had to deal with their hours, because the department had kept bringing in changes because staff were working extra hours, and so they kept bringing in new - a system where you had to monitor people's hours. They called them 'banked hours'. Because the hours that they normally work, they would go over.
Mrs Finlay's evidence was that since her employment with the defendant ceased she has been unable to work. Her husband has helped to do shopping, washing and cooking and has taken her to medical and other appointments. Her mother and father have also helped around the home.
Mrs Finlay gave evidence she has received treatment from Dr Linde, a psychiatrist. However, she was not currently receiving any treatment.
Mrs Finlay denied that she had been stressed prior to November 2004. She was taken in cross‑examination specifically to notes maintained by her general practitioner. The first note was of an attendance on 10 April 1989. It was detailed and referred to Mrs Finlay being stressed upon presentation. Mrs Finlay was unable to recall any suggestion being made to her at the time that she should try stress management. She was next taken to a note made in March 1996 which referred to her having problems, weeping at times on and off and being unhappy. Mrs Finlay was unable to remember any reasons at that particular time for why she would feel that way.
On 9 November 1998 Mrs Finlay presented to her general practitioner. The note made of the history obtained reads '?heart problems. Left chest, sometimes with breathlessness or a cough'. When asked in evidence about panic attacks prior to November 2004 Mrs Finlay referred to the 'odd worry' but not at the level of anxiety she now experiences. She said she certainly was not depressed prior to November 2004.
Mrs Finlay's evidence was that when she returned to work on 22 November 2004 she made 'it very clear' to Ms Cunningham that she had had a panic attack. Later in her evidence she described she had made it 'very plain'. When asked whether in the conversation she had said anything to her about work she replied:
I don't know whether I said anything about work or not but all I know was, I'd had a panic attack and I'd had a panic attack and I'd had all these other illnesses prior and then after that.
I am not satisfied that in the conversation there was any reference to there being any connection between the time off because of illness and her employment.
Mrs Finlay repeated in cross‑examination that she had told Ms Cunningham prior to the panic attacks that she was stressed. However the next question asked concerned the reason given for taking sick leave between the panic attacks and April. Specifically it was put the reason given was that she was suffering from sinus and bronchial problems. Mrs Finlay's response was 'because that was what we believed it was. It – that was what we believed that was – was all part of the problem'.
Ms Cunningham's evidence was that she had not been told of the incident and the hospitalisation after 22 November 2004. I accept and prefer Ms Cunningham's evidence to that of Mrs Finlay.
The overall impression I formed of Mrs Finlay's evidence was that it could generally not be relied upon. That said I do accept parts of her evidence. Specifically by reference to what is pleaded I do accept there was an incident on 13 November 2004 following which she was taken to hospital by ambulance. It is also accepted that on 12 April 2005 Mrs Finlay did have abusive calls from a customer. There are a number of reasons for my finding generally as to her reliability.
First, it became very clear in the course of Mrs Finlay's evidence that she was very much focused upon the claim. Whilst this is understandable particularly given the time elapsed since the first panic attack of November 2004, the impression I had was that she was very careful to ensure that anything she said was supportive of her claim. Her focus upon the claim and the length of time since the events referred to occurred has meant that there is some confusion and imprecision in her evidence. She could not remember being asked by Dr Ure on 15 November whether she had any problems.
Some of the numerous medical practitioners who have seen Mrs Finlay have noted in their reports her attitude towards the defendant. Some of the practitioners described Mrs Finlay being angry with the defendant.
Dr Linde, psychiatrist, noted that 'she has felt not understood, not backed up. She has either been told, or feels, that some of the work‑related hierarchy believes her ongoing anxiety has become a nuisance'. In his report of 7 September 2009 Dr Linde observed that 'Teresa said she has been very angry lately at the DCP'. In his report of 25 October Dr Linde described the diagnosis as being:
1.Post‑traumatic stress disorder, perpetuated by ongoing difficulties and perceived dishonesties in the DCP.
2.Anxiety and depression.
Dr Skerritt in his report of 21 February 2012 noted:
When the above symptoms are associated with interactions with the law and the insurance system, a particularly sinister feature is when the person experiences a sense of injustice and embarks on a crusade to achieve a just outcome.
He was asked in his evidence about that view and said:
Do you doubt that – do you say that that's the position here? – It is, yes, without a doubt, yes.
She's on some sort of crusade? – Well – well, she is, yes. Which is something that many people do and it's a bad prognostic factor. And they're right, it self contributes to that in some people because the anxiety sends thoughts churning through their head that are very difficult for them to dismiss, but that's certainly a factor that I think has – well, I sometimes use the term of 'Perpetuating factor', as is the behaviour of a long suffering husband.
Dr Tannenbaum noted he had been told by Mrs Finlay that the manager had a history of not being supportive and avoiding work. The manager was not remotely interested in her. He noted Mrs Finlay told him that the manager had pushed people to lie for him, lost documents and blamed others.
I accept in relation to the observations of some of the medical practitioners that Mrs Finlay was attending for medico‑legal reviews and that her responses were necessarily dependant upon the form of questions and propositions put to her by the examiners. However, it is the case that a number of the practitioners made similar observations. Further in her evidence she referred to her rehabilitation programme being to aid the department rather than her health problem. She referred in her evidence to being bullied and intimidated. Those particular allegations were not put to any of the defendant's witnesses.
I accept that Mrs Finlay did develop a psychiatric condition subsequent to the incident of 12 April 2005. She has lost her employment after many years of diligent service. She resents what has happened to her. She was very definite in cross‑examination about events. In her evidence‑in‑chief both she and her husband wanted to make it very clear that before the incident of 12 April 2005 Ms Cunningham had been told about panic attacks. In‑chief she volunteered reference to attacks in response to a question about how she felt in the week after the first attack. In answer to a further question about any further problems, she answered 'I made it clear to my team leader'.
It is of course many years since the events referred to occurred. There is a degree of uncertainty and, to some extent, confusion as to dates when events occurred.
Secondly, at times her evidence was exaggerated and inconsistent with the evidence of other witnesses whose evidence is preferred. For example, her reference to Ms Sclater's conduct in running from the building. No other witness gave evidence concerning any problems which Ms Sclater experienced whilst employed. I reject this part of Mrs Finlay's evidence. Ms Sclater's evidence, which I prefer and accept, was that Mrs Finlay was able to cope and discharge her duties competently and effectively. Mrs Finlay's description of the degree of difficulty in performing her duties and her capacity to cope was exaggerated and inconsistent with the evidence I accept of the defendant's witnesses as to the way she was able to discharge her employment duties.
Thirdly, the contemporaneous documents do not provide support for many of the assertions which form the basis of her case. For example, there was no reference to any inability to cope with duties. In contrast evidence of the defendant's witnesses found support in the documentation. Given the imprecision of parts of Mrs Finlay's evidence, reference has been made to and reliance placed upon contemporaneous documents and other accepted supporting evidence. Her evidence does not have significant support from either of those categories of evidence.
At times in the course of her evidence‑in‑chief Mrs Finlay needed to be reminded to focus upon the question put to her and appeared uncertain in relation to detail.

Daniel Eric Merrey

Mr Merrey's evidence was that when he first got to know Mrs Finlay she was very enthusiastic in her work.
I accept Mr Merrey did have contact with Mrs Finlay from time to time. However he was located in the Katanning office. She did occasionally go to that office and he would travel to meetings in Albany. His observations of Mrs Finlay need to be understood against that background. When asked to describe her personality, whether it was anything other than normal, he said 'No. Not at all'.
One of the tasks which Mrs Finlay pleads she was required to perform was the fleet management. Asset/property management is identified as one of Mrs Finlay's tasks in the performance agreement for 2003 – 2004.
Mr Merrey as part of his duties needed to monitor vehicle usage at the defendant's Katanning office. To facilitate the monitoring he developed a system utilising a spreadsheet. Mrs Finlay did not use a spreadsheet and would make manual entries. Mr Merrey sent a copy of the spreadsheet not only to Mrs Finlay but also to Ms Cunningham and discussed it with them on a number of occasions. In his evidence he said, 'The figures that I kept were no good to her (Mrs Finlay) because she didn't keep a spreadsheet'. In his view she did not appear to be coping with the management. He gave evidence that this was from mid‑2003, through 2004 and through 2005.
Mr Merrey had many conversations with Mrs Finlay about her use of the manual system for vehicle monitoring. It was his evidence that the issue of cars was a major one in the department and Mrs Finlay seemed pre‑occupied.
In early 2005 Mr Merrey had a telephone conversation with Mrs Finlay about the fleet management. He gave evidence the conversation was before April 2005. He became angry in the conversation and upset with Mrs Finlay. She had become upset that he was angry. He gave evidence that a few weeks later he attended a meeting in Albany and had been admonished by Mr Giddings for upsetting Mrs Finlay and told he needed to be careful in the way he dealt with her. It was his evidence Mr Giddings had said this was because she was stressed with the fleet management and was not coping.
Subsequent to the meeting Mr Merrey had again spoken to Mr Giddings about the use of spreadsheets. Mr Merrey wanted to spend time in Albany instructing Mrs Finlay on how to set up and use the spreadsheet. Mr Giddings made no commitment that that process could occur.
It is reasonably clear that management of the car fleet was a difficult task. As Mr Christie said in evidence, there was always pressure not to overuse the cars. The car fleet management required detailed work. Whilst Mr Christie said he did not take much interest, it was his evidence that 'there were requirements that Teresa dealt with but, you know, the sort of person as she was I would never really take much interest in that, she would have done it all'.
I accept that there were discussions about the use of the spreadsheet Mr Merrey developed. This was very much the focus of Mr Merrey's attention. He appeared frustrated with the response from management to his recommendations as to use of a spreadsheet. Mr Merrey's concern was the spreadsheet and its use. Mrs Finlay did not give evidence in relation to difficulty dealing with Mr Merrey's spreadsheet as opposed to use of a manual system. I am not satisfied that the conversation with Mr Giddings was as outlined by Mr Merrey. Mr Giddings was a careful employee. There is no notation of the conversation when Mr Giddings is said to have told him Mrs Finlay was stressed and not coping. Whilst a note of every conversation would not be expected, there is no contemporaneous documentary evidence to suggest any knowledge in the defendant of an inability of Mrs Finlay to cope.

Timothy Michael Christie

It was Mr Christie's view that the Albany office was short‑staffed, there was a lot of work that could not be done and there was a lot of pressure on staff. He referred to the Ford report and said that following its release he observed changes in staffing in the sense of there being very substantial increases. His observations as to changes were made after he had left the defendant's employment.
Mr Christie had met Mrs Finlay when he worked for the defendant. He described her as then being a bubbly, happy person who was efficient at her job.
Mr Christie was asked about any change in Mrs Finlay's demeanour during the years he had seen her. It was his evidence that by the time he left the defendant's employ Mrs Finlay was on sick leave. He said at that stage she presented as a completely different person. He said he observed the change not long before he left the defendant's employ. He was vague about the date. However he was precise that there was a particular incident that had upset Mrs Finlay. This was when she had to deal with an abusive client. He said in evidence that 'after that, you know, that she from memory went off on extended sick leave shortly after that incident'. I am satisfied the incident Mr Christie referred to in his evidence was the incident of 12 April 2005. I am satisfied it was after Mrs Finlay went on sick leave and was back on rehabilitation that he noticed the change in her demeanour.
Mr Christie was the second in charge at the Albany office. In the years prior to Mrs Finlay going off on leave he had observed her as a person very much committed to her employment. It was a hard‑working office and Mrs Finlay was very much part of that.

Kathryn Mary O'Brien

Ms O'Brien would spend time in each of three of the defendant's offices. She was not a psychologist for the defendant's employees but they did speak to her from time to time. She said Mrs Finlay had spoken to her from time to time and she was 'very stressed' and 'wasn't feeling well and that type of thing'.
Ms O'Brien gave evidence she had seen Mrs Finlay distressed and weeping on a number of occasions. One of these was an occasion when a person had rung the office and Mrs Finlay had spoken to him. On this occasion Mr Giddings had refused to take the telephone call. She had observed Mrs Finlay to be in an extremely distressed condition at the time.
Ms O'Brien also gave evidence of occasions when other incidents had occurred. Ms O'Brien gave evidence she had spoken to Mr Giddings on one occasion about Mrs Finlay not coping well. She gave evidence she remembered the incident 'particularly because I was actually really angry myself'. She could not be specific as to when this had occurred. When pressed in examination‑in‑chief she said the incident was in the 'early 2000s'. When asked about counselling she said 'But I don't actually remember being asked to counsel Mrs Finlay which isn't to say it didn't happen, but I do not remember it'. It was her evidence following the Ford report there had been an increase in staff. She described it as a common experience within the department to have to deal with abusive clients.

(b)how many staff would have been 'sufficient';
(c)what qualification level and job title would be required of staff numbers to ensure there was a supply of 'sufficient staff';
(d)what is meant by the words 'ran safely' in respect of the Plaintiff's employments at the Department for Community Development;
(e)what is meant by the words 'ran safely' in respect of employees of the Department for Community Development other than the Plaintiff?

ANSWER 2

As to paragraph 4(b) of the Statement of Claim:
(a)the Plaintiff asserts that sufficient staff would have been enough staff to perform the tasks required to be performed without exposing the Plaintiff to the risks which occasioned her injury and would have comprised –
a.at least one more staff member acting as a level 1 clerical staff, or a level 4 Administration Team Leader when the plaintiff's Team Leader was absent;
b.at least one level 1 or 2 records management officer;
c.relief staff to replace absent field Level 2/4 staff and clerical/administrative staff at levels 1, 2, 2/4 and 4 whose tasks the plaintiff was required to perform.
d.sufficient field staff to ensure that duty rosters were fully covered at all times to attend to all public citizens who required the services of a field staff member;
e.staff with specialised counselling skills to deal with members of the public attending the Department office who were suffering from mental illness, or whose behaviour was affected by drugs or alcohol, or who were violent;
f.an additional Level 1 Customer Service Officer; and/or
g.additional clerical staff to assist with the implementation of offers of additional services to the public by the Department;

(b)The number of staff which would have been sufficient is the number which would have been sufficient to perform the tasks required to be performed without exposing the Plaintiff to the risks which occasioned her injury and would have comprised –
a.at least one more staff member acting as a level 1 clerical staff, or a level 4 clerical staff/administration team leader when the plaintiff's team leader was absent;
b.at least one level 1 or 2 records management officer;
c.relief staff to replace absent staff at levels 1, 2, 2/4 and 4 whose tasks the plaintiff was required to perform or assist in performing;
d.sufficient field staff to ensure that duty rosters were fully covered at all times to attend to all public citizens who required the services of a field staff member;
e.staff with specialised counselling skills to deal with members of the public attending the Department office who were suffering from mental illness or whose behaviour was affected by drugs or alcohol, or who were violent;
f.an additional Level 1 Customer Service Officer; and/or
g.additional clerical staff to assist with the implementation of offers of additional services to the public by the Department;

(c)The qualification level and job title required of staff numbers to ensure a supply of sufficient staff would have been those required to perform the tasks required to be performed without exposing the Plaintiff to the risks which occasioned her injury and would have comprised –
a.at least one more staff member acting as a level 3 clerical staff/administration team leader when the plaintiff's team leader was absent;
b.relief staff to replace absent staff at levels 1, 2 and 4 whose tasks the plaintiff was required to perform;
c.sufficient field staff to ensure that at least one field staff member was available at all times to see members of the public who required the services of a field staff member;
d.staff with specialised skills to deal with members of the public attending the Department office who were suffering from mental illness;
e.an additional Level 1 Customer Service Officer; and/or
g.additional clerical staff when additional services were offered to the public by the Department.

(d)What is meant by the words 'ran safely' in respect of the plaintiff's employment at the Department of Community Development is that the Department was run in a manner which avoided exposing the Plaintiff to the risks which occasioned her injury, including by –
a.maintaining staff levels at the designated staff levels for the office;
b.engaging additional clerical staff when additional services were offered to the public by the Department; and
c.providing remedial measures, including adequate post‑trauma counselling, support and adequate recovery leave, in the event of a staff member being exposed to a traumatic event in the work place;

(e)It is not relevant to these proceedings to plead as to what may constitute ensuring that the Department 'ran safely' in respect of employees other than the Plaintiff.

REQUEST 3

As to paragraph 4(c) of the Statement of Claim, state every act, fact, matter, thing or circumstance giving rise to the allegation that:
(a)the Defendant should ensure 'sufficient security measures' in respect of the Plaintiff's employment with the Department for Community Development;
(b)the Defendant should ensure 'sufficient work systems' in respect of the Plaintiff's employment with the Department for Community Development;

ANSWER 3

As to paragraph 4(c) of the Statement of Claim:
(a)In circumstances where the place of work gives rise to exposure to risks of the kind which occasioned the Plaintiff's injury, the Defendant has an obligation as an employer to provide security measures which prevent exposure to such risks, including –
(i)that senior officers intervene in situations where a member of the public is abusing or threatening a member of staff at the level of the plaintiff and deal with that member of the public;
(ii)the provision of duress alarms able to be readily accessed by officers positioned at the public reception counter or other risk areas;
(iii)a direct telephone line from the Department's office to the Police;
(iv)a security screen at the public reception counter;
(v)signage in public reception and duty rooms warning that violent or abusive behaviour would not be tolerated;
(vi)closed circuit television recording of public areas and duty room/interview rooms in the Department's office that would provide evidence or warning of violent or abusive behaviour in occurrence;
(vii)recordings of telephone conversations between members of the public which could be activated in the event of violent or abusive conversations;

(b)In circumstances where the place of work gives rise to exposure to risks of the kind which occasioned the Plaintiff's injury, the Defendant has an obligation as an employer to provide work systems which prevent exposure to such risks, including a system which would result in a senior officer intervening in a situation where a member of the public is abusing or threatening a member of staff at the level of the plaintiff and the senior member of staff dealing with that member of the public.

REQUEST 4

As to paragraph 4(c) of the Statement of Claim:
(a)what does the Plaintiff assert would have been 'sufficient security measures' in the context of ensuring that no employees were subjected to verbal abuse at the Department of Community Development;
(b)what is meant by the words 'security measures' in the context of ensuring that no employees were subjected to verbal abuse at the Department for Community Development;
(c)what is meant by the words 'work systems' in the context of ensuring that no employees were subjected to verbal abuse at the Department for Community Development; and
(d)what is meant by the words 'verbal abuse' in the context of the employee's employment at the Department for Community Development.

ANSWER 4

As to paragraph 4(c) of the Statement of Claim:
(a)Sufficient security measure to ensure that no employee was subjected to verbal abuse at the Department for Community Development comprise sufficient measures to ensure that the Department was providing a service of such a quality as to satisfy those to whom the service was being provided so as to avoid the possibility of verbal abuse of employees, including a measure which would result in a senior officer at all times intervening in a situation where a member of the public is abusing or threatening a member of staff at the level of the plaintiff and the senior member of staff dealing with that member of the public, together with the measures set out at Answer 3, subparagraph (a)(ii) to (vii) inclusive;
(b)The words 'security measures' in the context of ensuring that no employees were subjected to verbal abuse at the Department of Community Development mean measures which would result in both verbal abuse not being proffered and measures which would not leave employees exposed to verbal abuse, including a measure which would result in a senior officer intervening in a situation where a member of the public may be likely to abuse or threaten a member of staff at the level of the plaintiff and the senior member of staff either assisting the member of staff in dealing with that member of the public or taking over the task of dealing with the member of the public, together with the measures set out at Answer 3, subparagraph (a)(ii) to (vii) inclusive;
(c)The words 'work systems' in the context of ensuring that no employees were subjected to verbal abuse at the Department of Community Development mean work systems which would result in both verbal abuse not being proffered and measures which would not leave employees exposed to verbal abuse, including systems which would result in a senior officer intervening in a situation where a member of the public may be likely to abuse or threaten a member of staff in dealing with that member of the public or taking over the task of dealing with the member of the public, together with the measures set out at Answer 3, subparagraph (a)(ii) to (vii) inclusive;
(d)The words 'verbal abuse' in the context of the employee's employment at the Department for Community Development means injurious speech or violation or defilement by the use of words.

REQUEST 5

As to paragraph 5 of the Statement of Claim, state every act, fact, matter, thing or circumstance giving rise to the allegation that:
(a)the Plaintiff's stress occurred while acting under instructions of a superior officer of the Defendant's Department.

ANSWER 5

As to paragraph 5 of the Statement of Claim:
(a)The plaintiff's stress occurred while acting under instructions of a superior officer of the defendant's Department in circumstances when –
(i)the plaintiff was on occasions required to perform her own assigned tasks and the tasks of another staff member or another two staff members while those staff members were on sick leave, annual leave, or flexi‑leave and at the same time to act as relief receptionist;
(ii)the plaintiff acted in the role of team leader when the team leader was away for months at a time and at the same time to act as relief receptionist;
(iii)the plaintiff was required, when acting in the role as team leader, to carry out work of the Manager allocated to her by the Manager;
(iv)the plaintiff was required to attend to members of the public who were abusive and threatening.

REQUEST 6

As to paragraph 5 of the Statement of Claim, please particularise:
(a)on precisely which dates between late 2003 and 1 February 2007 did the Plaintiff suffer a personal injury by accident;
(b)on what dates the Plaintiff suffered stress arising out of or in the course of her employment;
(c)the circumstances in which the Plaintiff suffered stress arising out of or in the course of employment;
(d)what tasks and duties was the Plaintiff performing when she triggered her 'stress';
(e)how did the tasks and duties in the Plaintiff's employment cause her stress;
(f)what is meant by the word 'stress' in the context of the Plaintiff's employment at the Department for Community Development;
(g)what is meant by the word 'instructions' in the context of the Plaintiff's employment at the Department for Community Development;
(h)specifically what were the 'instructions' given to the Plaintiff, in the context of her employment at the Department for Community Development;
(i)specifically when were the 'instructions' given to the Plaintiff in the context of her employment at the Department for Community Development;
(j)who, at the Department of Community Development, gave the 'instructions' to the Plaintiff;
(k)identify the name of the 'superior officer' the Plaintiff received her 'instructions' from at the Department for Community Development; and
(l)identify the title role of the 'superior officer' the Plaintiff received her 'instructions' from at the Department for Community Development.

ANSWER 6

As to paragraph 5 of the Statement of Claim:
(a)The plaintiff suffered a personal injury by accident on 12 November 2004 and on 12 April 2005;
(b)The plaintiff suffered stress arising out of or in the course of her employment on the dates between late 2003 and 12 November 2004, on 12 November 2004 and on the dates between 12 November and 1 February 2007;
(c)The circumstances in which the plaintiff suffered stress arising out of or in the course of her employment comprised –
(i)the plaintiff being required to perform her own assigned tasks and the tasks of another staff member or another two staff members while those staff members were on leave and at the same time to act as relief receptionist;
(ii)the plaintiff acting in the role of team leader when the team leader was away for months at a time and at the same time to act as relief receptionist in the absence of the latter, and on occasions undertaking her normal role on a part-time arrangement when management would not relieve the team leader full-time;
(iii)the plaintiff being required to work at least 40 hours per week;
(iv)the plaintiff being required to work from 8:15 am to 5 pm each day;
(v)the plaintiff often commencing work at 7.45 am and leaving at 5.30 pm or 6 pm in order to maintain the workload required of the plaintiff;
(vi)the plaintiff on some occasions being able to take only a 15 minute lunch break in order to perform the tasks required of the plaintiff, or her lunch break, if taken at the work place, being often interrupted by staff needs, especially where staff availability was limited;
(vii)the plaintiff and other members of staff at the Albany office of the Department being obliged to receive all incoming calls from the Katanning and Manjimup offices of the Department after 4.30 pm each day, during lunch breaks and when Katanning and Manjimup office staff were otherwise out of the office for various reasons, including collecting the mail;
(viii)the plaintiff and other members of staff being obliged to deal with members of the public who were angry, abusive and threatening towards the plaintiff and other members of staff;
(ix)the establishment by the Department of new services without engaging any additional clerical staff to perform the clerical tasks required to provide the services;

(d)The duties which the plaintiff was performing when she suffered stress were the duties of a Level 2 Administrative Assistant in addition to the duties which would normally be required of a Level 3 Administration Assistant and the tasks the plaintiff was performing when she suffered stress were the following tasks:
(a)Fleet administration;
(b)Telephone and counter enquiries;
(c)Information Technology administration;
(d)Assets management;
(e)Personal Assistance to the Manager;
(f)Accounts and salaries payments and enquiries;
(g)Accruals accounting;
(h)Liaising with and reporting upon the contract cleaners;
(i)Assisting her team leader with writing quarterly administrative reports;
(j)Preparing reports and associated tasks for the replacement or acquisition of missing or new property;
(k)Dealing with, reporting and arranging repair and/or follow up in the event of office break-ins and theft from the office;
(l)Miscellaneous administrative tasks;
(m)Human resources support;
(n)Office security reporting and documentation;
(o)Records and data management;
(p)Relief reception duties;
(q)Assistance in the development and maintenance of office systems;
(r)Mentoring and training office and field staff with Information Technology.

(e)The tasks and duties in which the plaintiff's employment caused her stress:
(i)because of the quantity of tasks;
(ii)because of the time required to perform the tasks which exceeded the hours of a normal working day and a normal working week;
(iii)because of the level or responsibility required to perform the tasks and duties;
(iv)because of the requirement to perform the tasks of absent staff in addition to the tasks assigned to her position;

(f)The word 'stress' in the context of the plaintiff's employment at the Department of Community Development means overwork, strain, fatigue, harassment and/or oppression;
(g)The word 'instructions' in the context of the plaintiff's employment at the Department for Community Development means oral orders, directions and supervision and office practices arising from the hierarchical structure of the Department resulting in the Plaintiff being subservient to and following the orders, directions, lead and example of superior officers to herself;
(h)The instructions which the plaintiff received from which her stress arose at the Department of Community Development were given orally and comprised:
a.a direction that she work from 8.15 am to 5 pm each day;
b.various directions from time to time that she perform the tasks of staff members who were absent from work;
c.various directions that the plaintiff perform the tasks of her Team Leader when the Team Leader was absent from work;

(i)The instructions were given to the plaintiff at various times during the course of her employment at the Department of Community Development between 2002 and 1 February 2007;
(j)The persons at the Department of Community Development who gave the instructions to the Plaintiff were her Team Leader, Sharonne Cunningham, and her Manager, Malcolm Giddings;
(k)The superior officers the Plaintiff received her instructions from at the Department of Community Development were Sharonne Cunningham and Malcolm Giddings and other senior level staff;
(l)The title and role of Sharonne Cunningham was Team Leader and the title and role of Malcolm Giddings was Manager.

REQUEST 7

As to paragraph 6(c) of the Statement of Claim please particularise on what date and at what time the Plaintiff suffered a further panic attack was on 18 December 2004 about 11 am.

REQUEST 8

As to paragraph 7 of the Statement of Claim please particularise:
(a)what is meant by the word 'instructed' in the context of the duties performed by the Plaintiff at the Department for Community Development;
(b)what is meant by the word 'assigned' in the context of the duties performed by the Plaintiff at the Department of Community Development;
(c)what is meant by the word 'required' in the context of the tasks performed by the Plaintiff at the Department of Community Development;

(d)what 'various duties' the Plaintiff was required or instructed to perform in the course of her employment at the Department of Community Development which comprised 'an excessive workload';
(e)what 'assigned tasks' the Plaintiff was required or instructed to do in the course of her employment at the Department of Community Development which comprised of 'an excessive workload';
(f)who provided the Plaintiff with instructions to undertake the 'various duties' and 'assigned tasks' in the course of her employment at the Department of Community Development which comprised 'an excessive workload';
(g)how were the instructions provided to the Plaintiff to undertake the 'various duties' and 'assigned tasks' in the course of her employment at the Department of Community Development which comprised 'an excessive workload';
(h)is it alleged that the 'various duties' and 'assigned tasks' was oral or partly oral?;
(i)if yes (h), to the extent that it is oral:
(i)please advise when, where and between what actual persons the conversation or conversations (if more than one) relied on took place; and
(ii)give the material substance of what was said and by whom in each such conversation.

(j)to the extent that any of the 'various duties' and 'assigned tasks' are implied, that are the acts, facts, matters, things and circumstances that give rise to such implication?;
(k)to the extent that any terms of the 'various duties' and 'assigned tasks' are implied, what are the acts, facts, matters, things and circumstances that give rise to such implication?;
(l)when was the Plaintiff provided with the instructions to undertake the 'various duties' and 'assigned tasks' in the course of her employment at the Department of Community Development which comprised 'an excessive workload';
(m)what is meant by the words 'excessive workload' in the context of the Plaintiff's employment at the Department of Community Development;
(n)when between 'late 2003 and 1 February 2007' did the Plaintiff have 'an excessive workload' in the circumstances;
(o)which duties or tasks pleaded in paragraph 7 are said to have comprised 'an excessive workload'; and
(p)which of the tasks listed in paragraph 7 resulted in the Plaintiff having 'an excessive workload'; and
(q)in what 'circumstances' was the Plaintiff obliged to perform the excessive workload in the course of her employment at the Department of Community Development.

ANSWER 8

As to paragraph 7 of the Statement of Claim:
(a)The word 'instructed' in the context of duties performed by the plaintiff at the Department for Community Development means oral orders, directions and supervision and office practices arising from the hierarchical structure of the Department resulting in the Plaintiff being subservient to and following the orders, directions, lead and example of superior officers to herself;
(b)The word 'assigned', in the context of the duties performed by the plaintiff at the Department for Community Development means directions, expectations and designation orally by superior officers and in the Plaintiff's written work description of tasks to be performed by the plaintiff;
(c)The word 'required', in the context of the duties performed by the plaintiff at the Department for Community Development means being obliged by directions, expectations and designation orally by superior officers and in the Plaintiffs' written work description;
(d)The various duties the plaintiff was required or instructed to perform in the course of her employment at the Department for Community Development which comprised an excessive work load were -
a.The whole of the tasks pleaded at sub‑paragraphs 7(a) to (m) inclusive of the Statement of claim, when taken as a whole as a work load comprise an excessive work load;
b.fleet administration, as a task excessive to the Plaintiff's role;
c.relieving duties in respect of a Level 4 Team 'Manager absent from work, in addition to the tasks pleaded at sub‑paragraphs 7(a) to (m) inclusive of the Statement of claim;
d.relieving duties in respect of other staff members absent from work, in addition to the tasks pleaded at sub‑paragraphs 7(a) to (m) inclusive of the Statement of Claim;
e.responding to client inquiries which were properly the task of field staff when no field staff were available to do so;
f.completing missing property reports which were properly the task of other staff members responsible for the property;

(e)The assigned tasks the plaintiff was required or instructed to perform in the course of her employment at the Department of Community Development which comprised an excessive work load were -
a.the whole of the tasks pleaded at paragraph 7(a) to (m) inclusive of the Statement of Claim, when taken as a whole as a work load comprise an excessive work load;
b.fleet administration as a task excessive to the Plaintiff's role;
c.relieving duties in respect of a Level 4 Team Manager absent from work, in addition to the tasks pleaded at paragraph 7(a) to (m) inclusive of the Statement of Claim
d.relieving duties in respect of other staff members absent from work, in addition to the tasks pleaded at paragraph 7(a) to (m) inclusive of the Statement of Claim;
e.responding to client inquiries which were properly the task of field staff when no field staff were available to do so or refused to attend to the same;
f.completing missing property reports which were properly the task of other staff members responsible for the property;

(f)The persons who provided the plaintiff with instructions to undertake various duties and assigned tasks in the course of her employment at the Department for Community Development which comprised an excessive work load were Sharrone Cunningham and Malcolm Giddings, and other senior staff on occasions at head office level or local level;
(g)The instructions provided to the plaintiff to undertake the various tasks and assigned tasks in the course of her employment at the Department of Community Development were provided orally or via email;
(h)The various duties and assigned tasks were communicated orally or via email;
(i)The various duties and assigned tasks were communicated orally during the course of the plaintiff's employment at the plaintiff's place of employment, in various conversations, primarily between the plaintiff and Sharrone Cunningham and Malcolm Giddings. The plaintiff was told to perform the various task and duties set out at sub‑paragraphs 7(a) to (m) of the Statement of Claim and sub‑paragraph c. to f. of sub‑paragraphs 8(d) and 8(3) of this paragraph;

(j)The various duties and assigned tasks were implied to be performed by the plaintiff by reason of the following act, facts, matters things and circumstances:
a.reliance by the Manager and Team Leaders and other staff of the plaintiff upon the plaintiff's knowledge of the office systems and task required to be performed within the office;
b.the absence of field staff from the office and the consequent inability of field staff to answer questions raised by clients, resulting in clients turning to the plaintiff to answer questions;
c.the absence of other staff within the office willing or able to perform the tasks required;

(k)To the extent that the terms of the various duties and assigned tasks are express they are set out in a letter of appointment, a job description document, a set of Best Practice Policy Guidelines and Public Service Guidelines and are not implied by acts, facts, matters, things or circumstances;
(l)The plaintiff was provided with instructions to undertake the various duties and assigned 'tasks in the course of her employment at the Department for Community Development which comprised an excessive work load on various occasions too numerous to otherwise provide particulars of;
(m)The words 'excessive workload' in the context of the duties performed by the plaintiff at the Department for Community Development means a workload in excess of that reasonably to be imposed on a Level 2 Administrative Assistant and includes:
a.the whole of the tasks pleaded at paragraph 7(a) to (m) inclusive of the Statement of Claim, when taken as a whole as a work load comprise an excessive work load;
b.fleet administration, as a task excessive to the Plaintiff's role;
c.relieving duties in respect of a Level 4 Team Manager absent from work, in addition to the tasks pleaded at paragraph 7(a) to (m) inclusive of the Statement of Claim;
d.relieving duties in respect of other staff members absent from work, in addition to the tasks pleaded in paragraph 7(a) to (m) inclusive of the Statement of Claim;
e.responding to client inquiries which were properly the task of field staff when no field staff were available to do so;
f.completing missing property reports which were properly the task of other staff members responsible for the property;

(n)The plaintiff had an excessive workload in the circumstances between the whole of the period from late 2003 to 1 February 2007;
(o)The following duties or tasks pleaded in paragraph 7 comprised an excessive workload in the circumstances:
a.the whole of the tasks pleaded at paragraph 7(a) to (m) inclusive of the Statement of Claim, when taken as a whole as a work load comprise an excessive work load;
b.fleet administration, as a task excessive to the Plaintiff's role;
c.relieving duties in respect of a Level 4 Team Leader absent from work, in addition to the tasks pleaded at paragraph 7(a) to (m) inclusive of the Statement of Claim;
d.relieving duties in respect of other staff members absent from work, in addition to the tasks pleaded at paragraph 7(a) to (m) inclusive of the Statement of Claim;
e.attempting to respond to client inquiries which were properly the task of field staff when no field staff were available to do so;
f.completing missing property reports which were properly the task of other staff members responsible for the property;

(p)The following tasks pleaded in paragraph 7 comprised an excessive workload in the circumstances:
a.the whole of the tasks pleaded at paragraph 7(a) to (m) inclusive of the Statement of Claim, when taken as a whole as a work load comprise an excessive work load;
b.fleet administration, as a task excessive to the Plaintiff's role;
c.relieving duties in respect of a Level 4 Team Manager absent from work, in addition to the tasks pleaded at paragraph 7(a) to (m) inclusive of the Statement of Claim;
d.relieving duties in respect of other staff members absent from work, in addition to the tasks pleaded at paragraph 7 (a) to (m) inclusive of the Statement of Claim;
e.responding to client inquiries which were properly the task of field staff when no field staff were available to do so;
f.completing missing property reports which were properly the task of other staff members responsible for the property;

(q)The circumstances in which the plaintiff was obliged to perform the excessive workload in the course of her employment at the Department for Community Development.

REQUEST 9

As to paragraph 8(a) of the Statement of Claim please particularise how the Defendant failed to provide a 'safe working environment' in the context of the Plaintiff's employment at the Department of Community Development.

ANSWER 9

As to paragraph 8(a) of the Statement of Claim, the defendant failed to provide a safe working environment in the context of the plaintiff's employment at the Department of Community Development by failing to -
(a)maintain staff levels at the designated staff levels for the office;
(b)engage additional clerical staff when additional services were offered to the public by the Department;
(c)provide remedial measures, including adequate post‑trauma counselling, support and adequate recovery leave, in the event of a staff member being exposed to a traumatic event in the work place;
(d)provide the measures set out at Answer 3, sub‑paragraph (a)(i) to (vii) inclusive.

REQUEST 10

As to paragraph 8(b) of the Statement of Claim:
(a)what does the Plaintiff assert would have been 'sufficient staff in respect of the Plaintiff's employment at the Department for Community Development;
(b)how many staff would have been 'sufficient';
(c)what qualification level and job title would be required of staff members to ensure there was a supply of 'sufficient staff';
(d)what is meant by the words 'ran safely' in respect of the Plaintiff's employment at the Department for Community Development; and
(e)what is meant by the words 'ran safely' in respect of employees of the Department for Community Development other than the Plaintiff.

ANSWER 10

As to paragraph 8(b) of the Statement of Claim, in relation to sub‑paragraphs 10(a) t(e) of the Request for Further and Better Particulars, the plaintiff repeats Answers 2(a) to (e) of these Particulars above.

REQUEST 11

As to paragraph 8(c) of the Statement of Claim please particularise:
(a)What does the Plaintiff assert would have been 'sufficient security measures' in the context of ensuring that no employees were subjected to verbal abuse at the Department for Community Development;
(b)what is meant by the words 'security measures' in the context of ensuring that no employees were subjected to verbal abuse at the Department for Community Development;
(c)what is meant by the words 'work systems' in the context of ensuring that no employees were subjected to verbal abuse at the Department for Community Development;
(d)what is meant by the words 'verbal abuse', in the context of the employee's employment at the Department for Community Development.

ANSWER 11

As to paragraph 8(c) of the Statement of Claim, in relation to sub‑paragraphs 11(a) to (d) of the Request for Further and Better Particulars, the plaintiff repeats Answers 4(a) to (d) of these Particulars above.

REQUEST 12

As to paragraph 8(d) of the Statement of Claim please particularise:
(a)what 'assigned tasks' the Plaintiff required support, security, assistance and resources to perform safely;
(b)what 'support' the Plaintiff required to perform her 'assigned tasks' in the context of her employment at the Department for Community Development;
(c)what 'security' the Plaintiff required to perform her 'assigned tasks' in the context of her employment at the Department for Community Development;
(d)what 'assistance' the Plaintiff required to perform her 'assigned tasks' in the context of her employment at the Department for Community Development; and
(e)what 'resources' the Plaintiff required to perform her 'assigned tasks' in the context of her employment at the Department for Community Development.

ANSWER 12

As to paragraph 8(d) of the Statement of Claim -
(a)The assigned tasks the plaintiff required support, security assistance and resources to perform safely comprised the whole of the tasks pleaded at paragraph 7(a) to (g) inclusive of the Statement of Claim, when taken as a whole because as a work load they comprise an excessive work load;
(b)The support the plaintiff required to perform her assigned tasks in the context of her employment at the Department for Community Development was in the form of recognising that the burden of her work load was excessive and relieving her of some part or parts of that workload either entirely or from time to time in order to reduce the workload to a level which was not excessive;
(c)The security the plaintiff required to perform her assigned tasks was the security which would arise from the defendant introducing the measures set out at Answers 9(a) to (g) above;
(d)The assistance the plaintiff required to perform her assigned tasks in the context of her employment at the Department for Community Development was in the form of assistance in performing some part or parts of the total workload imposed upon the plaintiff either entirely or from time to time in order to reduce the workload to a level which was not excessive;
(e)The resources the plaintiff required to perform her assigned tasks in the context of her employment at the Department for Community Development was in the form of additional staff working within the office to relieve the plaintiff of some part or parts of the total workload imposed upon the plaintiff either entirely or from time to time in order to reduce the workload to a level which was not excessive.

REQUEST 13

As to paragraph 8(e) of the Statement of Claim please particularise:
(a)what 'appropriate support' did the Plaintiff require on 12 April 2005, in the context of her employment at the Department for Community Development; and
(b)what 'appropriate assistance' did the Plaintiff require on 12 April 2005, in the context of her employment at the Department for Community Development.

ANSWER 13

As to paragraph 8(d) of the Statement of Claim -
(a)The appropriate support the plaintiff required on 12 April 2005, in the context of her employment at the Department for Community Development was to have a senior officer intervene in the situation where a member of the public was abusing her and to deal with that member of the public and to provide post‑trauma counselling, support and adequate recovery leave;
(b)The appropriate assistance the plaintiff required on 12 April 2005, in the context of her employment at the Department for Community Development was to have a senior officer intervene in the situation where a member of the public was abusing her and to deal with that member of the public.