Gallagher v Queensland Corrective Services Commission

[2000] HCATrans 73

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B1 of 1999

B e t w e e n -

PAUL FRANCIS GALLAGHER

Applicant

and

QUEENSLAND CORRECTIVE SERVICES COMMISSION

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 2000, AT 12.07 PM

Copyright in the High Court of Australia

MR J.S. DOUGLAS, QC:   If the Court please, I appear in this matter for the applicant with MR R.F. KING‑SCOTT. (instructed by Watkins Stokes Templeton)

MR D.O.J. NORTH, SC:   If the Court pleases, I appear in this matter for the respondent with MR M.T. O’SULLIVAN. (instructed by the Crown Solicitor for Queensland)

MR DOUGLAS:   Your Honours, in our submission, there are three principal reasons why special leave should be granted in this case.  The first is that the Court of Appeal’s reasoning about the causation of the plaintiff’s damage was based on a demonstratively false premise that led to an unjust result and we will come back to that later.

Secondly, the case is one of a type that is becoming more frequent.  Damages claims arising out of stress in the workplace where difficult questions of causation arise and, in our submission, the law needs clarification and, in particular, our third point in this issue, the question of whether the onus of proof of causation where a breach of duty and/or negligence is established and an injury within an area of foreseeable risk occurs should lie on the respondent to point to evidence showing that no causal connection existed between the negligence and the injury is open and one that needs to be decided by this Court.

Later I will take you to passages in Chappel v Hart and refer you to an extended discussion of the issue by Justice Mason, the President of the New South Wales Court of Appeal, in a decision called Bendix Mintex which is in our list of authorities.

Can we turn to the first point by going to page 54 of the application book to the reasons of the Court of Appeal and, in particular, the reasoning of his Honour the Chief Justice.  Between pages 51 and 54 his Honour examines some of the factual bases for the conclusions reached by the learned trial judge, Justice Jones.  He then went on to say at the foot of page 54:

I respectfully identify two deficiencies in that process of reasoning: first, it appears to fail to grapple with the need for a reasonable, objectively based assessment of the foreseeability of injury of some such kind as the respondent suffered, involved in the appellant’s conduct; and second, it may assume, as sufficient, that the respondent himself attributed his condition to the problems at work, rather than addressing the existence of causal relationship in fact.

Justice Pincus agreed with his Honour at page 67 as did Justice White, and she expressed a similar conclusion in similar language in the paragraph on page 74 of the application book.  That conclusion expressed by her Honour there that:

his Honour did not approach the task of identifying whether the respondent’s depressive illness was a reasonably foreseeable consequence of the appellant’s conduct vis-à-vis the respondent and because there was neither evidence to conclude, and his Honour did not conclude, that any negligent conduct on the part of the appellant caused the respondent’s injury -

is, in our submission, together with the similar approach by his Honour the Chief Justice, wrong and can we really illustrate that  ‑ ‑ ‑

HAYNE J:   Wrong as a matter of legal principle or wrong because it fails to characterise accurately what the trial judge had done, or a combination?

MR DOUGLAS:   The latter, your Honour.

HAYNE J:   The latter?

MR DOUGLAS:   The latter.  That is best shown by going to Justice Jones’ judgment starting at pages 2 to 3 where his Honour draws attention to a factual basis for his conclusions which appears to have been ignored by the Court of Appeal and that is that between 1990 and the end of 1993 the plaintiff’s superior, a Mr Lane, who was not called to give evidence, was absent from his managerial role and:

On most of these occasions the plaintiff performed the duties as relieving General Manager –

and you can see from about line 16:

he recognised that he was becoming stressed about these matters and on 17 February 1992 advised his superior, Mr Lane, that he was finding it increasingly stressful to carry out his duties. He asked not to be appointed relieving General Manager in the future.

The plaintiff says that Mr. Lane acknowledged the difficulties –

offered his support, including psychological consultations and then one sees on the next page that:

Despite the plaintiff’s expressed concern, Mr. Lane prevailed upon him to accept the relieving General Manager’s position again.

Now this is an important factual basis for his Honour’s conclusions and you can see how he elaborates after that other conditions of concern at the gaol and also refers at page 26 to an earlier report on the plaintiff’s file dating from 1988, a quote from which is extracted at the top of page 26 which includes a sentence relating to the effect of management jobs on him, that:

At this stage, a true management job could kill you.

So, we have here an employer who knows about the effect of managerial stress on this plaintiff, who has been asked by the plaintiff not to be put into managerial positions but who is put into such a position by the defendant with that knowledge.

Now, his Honour examined this evidence and says, significantly, at page 12, apropos of the statements of the Court of Appeal to which I have taken your Honours, at about lines 8 to 10:

the plaintiff’s case is based not on what the government should have done but on the actions of the defendant and its relationship with the plaintiff in those circumstances.

So clearly his Honour is directing himself in precisely the way the Court of Appeal said he failed to do, an approach which he pursued at pages 27 to 28 when, again, reverting to the effect on the plaintiff of Mr Lane’s placing him in a managerial position which caused him stress in spite of the knowledge that that stress would affect his health.  Your Honours can see that in the last paragraph of page 27 to the top of page 28.

His Honour then continued to set out the relevant evidence before concluding his recitation of it at pages 31 to 35, why he thought it was the case that the psychiatric evidence supported the conclusion that the stress was caused by the circumstances of the work and those passages, in our submission, particularly starting at the top of page 33 which recites that:

The defendant led no evidence to suggest that the stress developed in the plaintiff because of any factor outside his work environment –

and then going on to examine the psychiatrists whose views supported his conclusion that the stress caused his condition, properly enabled his Honour to conclude that there was a causal link which, again, in our submission, illustrates the error of the Court of Appeal at the pages to which we have already taken your Honours.

GUMMOW J:   Where was that particular passage in the Chief Justice’s judgment which you say misunderstands the structure of the primary judge?

MR DOUGLAS:   Page 54, your Honour.

GUMMOW J:   Page 54.

MR DOUGLAS:   Yes, and Justice Pincus agrees with his Honour and Justice White does and expresses a similar view at page 74.  What we submit is that actually there was a causative link established and his Honour’s reasoning process approached it from the point of view of an objectively based assessment of the foreseeability of injury of some such kind as the respondent suffered involved in the appellant’s conduct.

GUMMOW J:   Yes.

MR DOUGLAS:   Their Honours failed particularly to take into account, in reaching the views that they did, the evidence his Honour clearly relied upon that the manager above him put him into a stressful position knowing he did not want to do it and knowing of the likely effects of it on him.

GUMMOW J:   What is the significance of the Chief Justice’s statements at page 55 in the first paragraph?

MR DOUGLAS:   We take it that his Honour the Chief Justice ‑ ‑ ‑

GUMMOW J:   That, in effect, this is an inevitable part of the job.

MR DOUGLAS:   Yes, analysed the evidence to say that operationally these are the sorts of risks that occur in this job and you cannot show negligence simply because of that.

GUMMOW J:   Yes.

MR DOUGLAS:   But we say you have to look at the background and say, with this particular plaintiff with this particular employer, the employer knew of the risks.

KIRBY J:   You had the added factor of his expressions to the employer and his wife’s expression to the employer of his particular vulnerability.

MR DOUGLAS:   That is so, your Honour.  Yes, and that is not what appears to have been taken into account by the Court of Appeal.  Now, prima facie, that may give the appearance ‑ ‑ ‑

KIRBY J:   Essentially, what your client’s case, as I understand it, was that he was vulnerable, he presented his vulnerability, his wife reinforced it but, notwithstanding that, the employer said, “Just get on with it and if you really want to you can go off and see these private counsellors and we will pay for it”.

MR DOUGLAS:   Yes, and by the way we will present you with  ‑ ‑ ‑

KIRBY J:   And the trial judge said that was not enough.  The Court of Appeal seemed to think it was.

MR DOUGLAS:   No, the trial judge said that was enough.  The Court of Appeal said that was not but their Honours in the Court of Appeal did not appear to take account of his Honour the trial judge’s factual analysis of the relationship between him and Mr Lane and his expression of fear to Mr Lane about being reappointed to a managerial position.

KIRBY J:   There seems a dichotomy there, that he did not want the managerial stresses and yet he was afraid that Mr Lane was bucketing him privately and that he would not get the job.

MR DOUGLAS:   Yes.

KIRBY J:   So that may all be bound up in the nature of the condition, I do not know.

MR DOUGLAS:   It may be and I suppose it is there that one goes from this factual analysis to the potentially important legal issue that arises where, as in a number of cases that have been litigated in recent times, there are a number of potential causes of injury and it is a question then ‑ ‑ ‑

GUMMOW J:   I am not worried about that so much here but what do you say the employer should have done?  What was the breach of duty, in effect?

MR DOUGLAS:   It should not have put him into a managerial position.

GUMMOW J:   He did have to go into one.

MR DOUGLAS:   It should not have asked him to go into one.  The employer knew that this man would suffer serious consequences if he was put into such a position, knew the man did not want to do it but nevertheless put him in and then exposed him  ‑ ‑ ‑

KIRBY J:   You say he did not want to do it but why?  Was he in some situation where he could not say, “No.  Look, I’ve told you I don’t want a stressful job”.  I mean, plenty of people must do that in the workforce.

MR DOUGLAS:   He felt some loyalty to Mr Lane which your Honours will see on page 3.

HAYNE J:   Yes, page 3 is the primary judge’s finding of fact about that, lines 8 to 10.

MR DOUGLAS:   He:

had a high personal regard for Mr. Lane and it would have been difficult for him to refuse such an approach.

GUMMOW J:   It may have been.

KIRBY J:   We are talking about a semi‑senior position of considerable responsibility.  I mean, does the law now hold a person by the hand through this personal crisis?  I mean, is that the result of the primary judge’s conclusion?  Is that the rule that you want to have established?

MR DOUGLAS:   The employer should take into account when ‑ ‑ ‑

GUMMOW J:   Promoting.

MR DOUGLAS:    ‑ ‑ ‑ considering whether to impose these responsibilities, the likely effect on the employee.

HAYNE J:   No, no.  No imposition here.  It was asked.  He was asked and he said yes.  Where is the evidence of imposition?

MR DOUGLAS:   There is not imposition in the sense of a requirement, but there is a request of an employee whom the employer knows is vulnerable in circumstances where the employee feels that it would be difficult for him to refuse such an approach, even though he has said in the past, “Please don’t reappoint me into that position”.

KIRBY J:   The law must operate on some degree of assumption of free will and the right of a person who is not imposed upon, is not in, say, a military or police situation and is directed to do something.  Now that is a different type of case and if your client had been directed to do it against this background, I could see a very powerful argument, but where there is a free entitlement to say no, even though it is embarrassing or awkward or difficult, does the law really have to insist that employers say no and deny people opportunities which, in the other half of their mind, they actually might want.

MR DOUGLAS:   We would say that the employer should not put or invite such a person to go into such a position when it knows of the serious risk of injury that the employee will suffer if that occurs.

KIRBY J:   So your case is he indicated his vulnerability, his wife indicated his vulnerability, they knew about his sense of duty to Mr Lane and maybe to the service and, notwithstanding what they knew, they virtually forced him on and they must bear the consequences and that that is really what the primary judge concluded?

MR DOUGLAS:   That is essentially it, your Honour.  The words “virtually forced” on may put it higher than we need to.

GUMMOW J:   That is the problem, is it not?  Yes, but this was a promotion which carried a greater salary and benefits, I suppose?

MR DOUGLAS:   One assumes so, your Honour.  Now, it then becomes an issue of looking at the question of the onus of proof which, in our submission, is an important legal issue because, apart from this factual issue of which I have already spoken, there are numerous ‑ ‑ ‑

KIRBY J:   But there is no question the onus of proof from the beginning and the end is on the plaintiff - the legal onus of proof is on the plaintiff, so there is a question about the evidentiary obligation once you raise an issue but it is the onus of proof, the burden, rests on the plaintiff.  I do not think this Court has ever strayed from that path.

MR DOUGLAS:   No.

KIRBY J:   In my rash early days in the Court of Appeal in New South Wales I think I suggested something in Kilgannon but that has not taken off in this country.

MR DOUGLAS:   There is an interesting discussion by your successor in the Bendix Mintex decision to which we have drawn your attention ‑ ‑ ‑

KIRBY J:   Yes, I was just looking at that.

MR DOUGLAS:    ‑ ‑ ‑ where he again looks at the issue and says, in what we submit is an interesting analysis of the English and Australian cases in the area, that – and this is on page 316 – he examines the question of whether:

“The law does not equate the situation where the defendant had materially increased the risk of injury with one where he had materially contributed to the injury.”

KIRBY J:   Is much going to turn on that point in this case because the facts really were not very much in dispute, were they, the three critical facts that I mentioned?  He complains, wife complains, they know of the relationship with the senior employer and they know of his sense of responsibility but they force him on or they promote him.

MR DOUGLAS:   Those essential facts are not in dispute.  There are also other stressors during his period of employment which were said also to have arisen out of negligence of the employer and a question arises on the Court of Appeal’s findings as to whether or not they can be said to have caused it.  If the onus of proof on an evidentiary basis switches to the defendant to show some reason why the conclusion should not be drawn that that evidence of the increase of risk led to the injury, then the interesting legal issue does arise, in our submission.

We said there were three points.  The second was, of course, the increasing incidence of cases of this nature, not only where there is stress involved but also where there are multiple possible causes of events such as a rise in some of the asbestosis cases and in conclusion, could we say that if your Honours formed the view that the learned judge was entitled to find that there was sufficient evidence to establish causation, which is what we say he did, then justice would require that special leave be granted because the Court of Appeal has ignored his process of reasoning in arriving at that conclusion.  They are our submissions.

GUMMOW J:   Yes, thank you, Mr Douglas.  Yes, Mr North.

MR NORTH:   May it please the Court, it is submitted that the decision of the Court of Appeal was correct when it found that the applicant had not proven a breach of the duty of care by the respondent and further, that the applicant had not proven any causal link between any failure to act and the development of his ultimate illness.

May I turn firstly to the breach of duty of care?  The applicant was employed in a managerial position at the respondent’s prison.  If your Honours look at page 7, at the bottom of page 7 to the top of page 8 of the appeal record, you will see that the general manager was Mr Lane.  The applicant was the manager of operations which meant that he was in charge of the day‑to‑day operations of a prison that included maximum security prisoners.

The respondent recognised that employees were exposed to stress within work in prisons.  It also recognised that workers were at risk as a result in developing illness consequent upon that exposure.  The respondent responded to that risk by employing at the workplace a qualified psychologist, Mr Maybury, whom the plaintiff consulted.  It also retained the services of Interlock which was a professional psychological and psychiatric counselling service that was confidential and free of charge to workers.

The Court of Appeal held that the provision of the counselling services was a reasonable response on the part of the respondent to the risk to which the applicant was exposed.  The applicant knew of the availability of the service.  In February 1992 he saw Mr Maybury who referred him to Interlock but he declined to seek treatment from Interlock, saying he would seek private medical treatment.

KIRBY J:   I do not think that is the strongest point in your argument because it may be that part of his problem was, as it were, facing up to his difficulties and going along and seeing an employer provided counselling service, even though it is private but it is still provided by the employer and they would get the bill and people would know he was going off to see the psychos.  You have to look at this in the culture in which the applicant works.

MR NORTH:   There was no evidence that the culture affected the applicant’s choice in this case.  He merely indicated he preferred to go privately.  He, in fact, delayed for ten months in going to see a doctor.  Your Honour, evidence was given by a psychiatrist who was called for the applicant about the provision of the service, Dr Mulholland.  Your Honour, that evidence is actually set out at page 56 of the appeal record.  Your Honours will see that Dr Mulholland was asked questions there about the proposition that an employer offered such a service as Interlock but that an employee indicated that he wished to go privately.

KIRBY J:   Now the question is whether the three ingredients that have been mentioned, the fact that he mentions his concerns about it, the fact that his wife, without his knowledge, contacts them and mentions her concerns and the fact that his superior knew that anything he was asked to do he was, as it were, programmed to do.  Now, does that lift this case into a case where, in a sense, they took advantage of him and, as it were, knew that they were overriding his right to say no.

MR NORTH:   No, your Honour.  At the time that Mr Gallagher, the applicant, raised this concern with Mr Lane in February 1992 was the time when he went to see Mr Maybury and was referred to Interlock, so it is at the time that he raised this concern the employer, through Mr Maybury, the psychologist, is aware that he is seeking treatment or proposes seeking treatment.  Now, there was no referral back by the private doctor or anyone saying that he is too sick to go on and something should be done about it. 

At the time that Mrs Gallagher wrote with her concerns in early 1993, your Honours will see that there is reference to that at page 4 of the record in paragraph 15, this is the judgment of the trial judge, she wrote in February 1993 out of concern for her husband’s emotional state:

and identified two specific matters which were particularly concerning to her – unresolved allegations of nepotism and the existence of the undisclosed Olsen report.

Now, your Honours, there was no finding of negligence in relation to the rumours about nepotism that were going around the prison and there was no finding that the respondent’s dealing with the Olsen report was negligent.  It was in the context, therefore, of her concerns, not that he was being asked to act in higher positions but that things were going on in the job, not negligently, were causing him problems.

By that time, your Honours, the evidence discloses the plaintiff had been under treatment for some months by his doctor, who was not called to give evidence, and Mr Hamburger had already in January spoken to the plaintiff and said to him, “If you’re having troubles, get some treatment”, and again recommended Interlock and the plaintiff indicated that he was seeking private treatment.

Now, your Honours, it is in the context of that evidence that an allegation of a breach of duty of care just cannot be, in our respectful submission, made out.  The respondent acknowledged there was a risk.  It responded to it quite reasonably and appropriately and that is the foundation upon which the applicant’s claim for special leave must fail.

Your Honours, the applicant cannot raise these points about causation unless he can point to a breach of duty of care.

GUMMOW J:   Yes, we do not need to hear you any further, Mr North.  Thank you.  Anything in reply, Mr Douglas?

MR DOUGLAS:   No, your Honour.

GUMMOW J:   This application, which is one for special leave to appeal from the Queensland Court of Appeal, concerns a matter that turned upon particular facts.  In our view, no general question of legal principle has been decided and there is no sufficient reason to doubt the correctness of the conclusion to which the Queensland Court of Appeal came.  Accordingly, special leave to appeal is refused, and refused with costs.

Court will adjourn to reconstitute.

AT 12.35 PM THE MATTER WAS CONCLUDED