Gallagher v Queensland Corrective Services Commission

[1998] QSC 150

IN THE SUPREME COURT
OF QUEENSLAND  Writ No.  1302 of 1995
BRISBANE

[Gallagher v Queensland Corrective Services Commission]

BETWEEN:                PAUL FRANCIS GALLAGHER
  Plaintiff
AND:  THE QUEENSLAND CORRECTIVE SERVICES   COMMISSION
  Defendant

REASONS FOR JUDGMENT
  BEFORE THE HONOURABLE JUSTICE JONES
  DELIVERED THE 30TH DAY OF JULY, 1998

The plaintiff was born in the United Kingdom on 27 May, 1948 and is therefore now 50 years of age.  After leaving school he worked in the building industry and commenced an apprenticeship as a carpenter but he never completed the course.  At the age of 17½ years he joined the Grenadier Guards in Great Britain.  He saw service in Northern Ireland and was stationed, for a period of time, in Germany.  He met his wife there and they later married on 19 April, 1969.  He remained at the rank of Guardsman to the time of his discharge from the army.

In 1979 he migrated to Australia with his family.  His first and, indeed, only employment in Australia was with the defendant under the two various departmental identities by which it has been known since 1979.  His career of service with the defendant can be broadly outlined as follows:-

1980-84  Prisoner Officer, Boggo Road Gaol, Brisbane

1984-May 1989  Training Officer, Staff Training College, Wacol

May 1989 - 1990  Chief Staff Development Officer, Lotus Glen

1990 - 6 February 1991  Acting Operations Manager, (for 8 months)

6 February 1991 - 13 January 1994     Manager (Operations) Lotus Glen

On 13 January, 1994 the plaintiff ceased work due to the illness in respect of which he now brings a claim for damages.  The formal termination of his contract with the defendant occurred on 31 December, 1994.  He did not, however, work after 13 January of that year and has not been in employment since.

Throughout the period that the plaintiff worked at Lotus Glen Correctional Centre the designated General Manager was a Mr. Tom Lane.  However, on a number of occasions between 1990 and the end of 1993, and sometimes for extended periods, Mr. Lane was absent from the Lotus Glen Centre.  On most of these occasions the plaintiff performed the duties as relieving General Manager though other section managers acted in the position for short periods.  In both roles, as relieving General Manager and as Manager (Operations), the plaintiff, from 1991 onwards, encountered difficulties with organisational matters.  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 under which he was working and offered to the plaintiff his personal and professional support.  At the same time the plaintiff consulted the resident psychologist at Lotus Glen, Mr. Darryl Mayberry, who  recommended that the plaintiff be seen by the counselling agency Interlock.  This agency  was a consultant to the defendant and was engaged to provide a wide range of counselling services to the defendant's staff and to advise the defendant itself.  That recommendation by Mr. Mayberry was approved by the Human Resources section of the defendant's organisation but in the end result the defendant did not avail himself of the agency’s services believing that to do so might have been detrimental to his career.

Despite the plaintiff’s expressed concern, Mr. Lane prevailed upon him to accept the relieving General Manager’s position again.  Mr. Lane’s request was put on the basis of asking the plaintiff to do it as a personal favour to him.  The plaintiff had a high personal regard for Mr. Lane and it would have been difficult for him to refuse such an approach.  It seems that this was the basis on which the plaintiff agreed to taking on the position on two further occasions.  One of these was of some months duration whilst Mr. Lane was the relieving General Manager at the Rockhampton Correctional Centre.  On the evidence, it appears the plaintiff filled the position of relieving General Manager at Lotus Glen for a considerable part of the 1992 calendar year.

This year was a particularly difficult one for the Centre for a variety of reasons which fall to be considered by me in detail in these Reasons.

In December, 1992 the plaintiff took 4 weeks sick leave after he consulted Dr. Bestman about his psychological state.  His leave commenced on the day on which he was to be relieved in the position by a Mr. Olsen, a former general manager of the Sir David Longland Correctional Centre but then designated General Manager Relieving in Investigations. 

The plaintiff returned to work on 4 January, 1993 on which day Mr. Lane resumed his duties as General Manager at Lotus Glen.  By this time most of the difficulties of the preceding year were still present but now an additional matter emerged.  Mr. Olsen had sent a confidential report to the Director-General, Mr. Keith Hamburger, which was highly critical of the management team at Lotus Glen with Mr. Gallagher being particularly singled out.

Between 4-6 January, 1993 there was a meeting at Cairns between the Director-General, his principal advisor Ms. Isabel Hight, Director (Operations Support) and the management team from Lotus Glen.  This meeting was styled as a “management workshop”.  But as it was called at short notice and after the receipt by the Director-General of the confidential Olsen report, its purpose was, in my opinion, much more focused.  There was a follow-up visit to Lotus Glen by the Director-General and Ms. Hight on 8 February, 1993.

Subsequent to the workshop meeting a junior staff member made the plaintiff aware of the fact of the Olsen report and of its nature.  The plaintiff was unable to obtain a copy of the report nor was he advised of its contents.  The Director-General did not, at the workshop or at the subsequent meeting, make any direct reference to the Olsen report but there was some correlation between the contents of the report and the workshop topics.

On 14 February, 1993 the plaintiff’s wife, out of concern for her husband’s emotional state and without his knowledge, wrote personally to the General Manager (Human Resources), Mr. Peter Rule (ex. 37).  She identified two specific matters which were particularly concerning to her - unresolved allegations of nepotism and the existence of the undisclosed Olsen report.  The responses of Mr. Rule expressed a view that the nepotism allegation had been resolved at the January workshop and that other problems were due to the plaintiff’s own management style and his unwillingness to accept advice.

When the plaintiff could not get satisfaction on his enquiries about the matters which touched him personally - nepotism and the Olsen report - he initiated a grievance procedure on 27 April, 1993 (ex. 26).  This grievance had not progressed to any degree by June, 1993 when the plaintiff and his wife took extended leave.  Upon his return from leave on 2 August, 1993 the plaintiff spoke to the then chairman of the defendant’s Board, Mr. Ron Archer.

During the plaintiff’s absence (June/August 1993) a major enquiry into human resource issues at Lotus Glen had been undertaken by Interlock.  The plaintiff was aware before he went on leave that the enquiry was intended.  The report of the enquiry (ex. 25) identified the issues which had concerned, and were continuing to concern, the staff and which had impacted on the management team.  The report made recommendations for the resolution of the problems.  The report was sent to Mr. Bob Scott, a member of the Centre’s joint consultative committee and also a member of the defendant board.  A copy was also sent to Mr. Lane.  Whilst the evidence does not disclose whether Mr. Hamburger or Ms. Hight received a copy of the report, its contents are so disturbing there is no reason to doubt that either Mr. Scott or Mr. Lane would have made the persons in authority aware of the matters raised in the Interlock report.

Another report which gives some insight into the work environment of Lotus Glen was prepared by Ms. Alison Hunter (ex. 31).  This dealt with an enquiry into this specific event which occurred on 26 September, 1993, but it also identified a range of staff concerns which had been the substance of prior complaints by the plaintiff.

On 14 October, 1993 a freeze was imposed upon staff recruitment by Head Office, notwithstanding the reported concerns about staff shortages leading to work related stress.

On 23 October, 1993 a ministerial visit in the presence of Ms. Hight did not produce any decision which may have eased what was obvious to all a very difficult situation (ex.  39). 

On 30 November, 1993 the plaintiff reopened his claim for workers’ compensation seeking a repayment of medication costs relative to his stress condition but he continued to work.

On 18 November, 1993 the plaintiff was continuing to seek help from Mr. Lane, his General Manager, in respect of the adverse staff/inmate ratio and his difficulty in developing operational plans.  In the result, no help was forthcoming.

In December 1993, the plaintiff bypassed his General Manager and sought assistance directly from head office.  He spoke to Ms.  Hight who arranged to visit Lotus Glen with Ms. Dutney after the Christmas break.

On 13 January, 1994 the plaintiff ceased work on medical advice but he fully expected to return to his position after undergoing treatment. 

Between 14-15 January, 1994 the anticipated visit by Ms. Hight and Ms. Dutney occurred.  The plaintiff participated fully in the discussion which led to a report (ex. 40). On 13 February 1994 he again participated in an interview with Ms. Dutney whilst he was still on stress leave.  This interview was criticized by Dr. Rigano for the effect it had on the plaintiff.  I regard this effect as being only of a temporary nature which need not be further considered.

The plaintiff’s condition when he ceased to work was diagnosed by Dr. Rigano as  major depressive illness. He has since then undergone a number of psychiatric and psychological examinations which all conclude that he did suffer such damage, although the views about the extent and cause of the condition do vary. 

The plaintiff sues in respect of that psychological damage which he claims was caused by the workplace practices imposed by and the lack of remedial action taken by the defendant, its service and agents.

To determine this question it is necessary to examine the plaintiff’s work environment, the actions of the defendant’s personnel with whom he had to interact and the conflicting views about the circumstances which have led to his condition.  The plaintiff was unable to identify with precision the cause/causes of the stress himself.  He described it as “ongoing, there are a number of causes” (125/43).

The Lotus Glen Correctional Centre

Lotus Glen Correctional Centre (“Lotus Glen”) is located some 20 kilometres from Mareeba on the Atherton Tableland.

At the time of its opening in 1989 Lotus Glen was designed to hold 192 inmates in individual rooms with single beds.  There was a staff establishment of 185 officers working in three eight hourly shifts - 6 a.m. to 2 p.m., 2 p.m. to 10 p.m., 10 p.m. to 6 a.m.  The staff rotated through these three shifts.  The centre was designed to hold inmates of all security classifications - high, medium, low and farm accommodation.  It also operated as a remand centre.

The prison, according to the plaintiff, worked well until 1991.  It did, in that year, win a Human Rights Commission award for its work.  It was a prison which was specifically designed to handle a high proportion of prisoners from Aboriginal or Islander background.  The prison staff had been recruited from local communities in the Atherton Tablelands and one of the plaintiff's original functions was to train that staff who, in the main, had had no earlier experience of working in prisons.

The management hierarchy at Lotus Glen in the relevant period following the plaintiff's appointment to the position of Manager (Operations) was as follows:-

General Manager  Mr. Tom Lane

Manager (Operations)  Mr. Paul Gallagher

Manager (Programmes)  Mr. Ray Valance

Manager (Admin. & Finance)              Mr. Don Tait

Farm Manager  Mr. Steven Green

Subordinate to these managers but included as members of the management team were:-

Mr. Tynan - Security/Intelligence Officer,

Mr. Hardy - Operations Support Officer

Mr. Doherty - Sentence Manager

Mr. Elliott - Programmes Officer

The General Manager (and persons acting as General Manager) had direct line of reporting and access to the Director-General of Corrective Services, Mr. Keith Hamburger.  Working closely with him was the Director (Operations Support) Ms. Isabel Hight, whose responsibilities included providing advice, support and co-ordination to centre general managers.  Answering to Ms. Hight and assisting her was Ms. Ann Dutney, General Manager (Operations Support).

Throughout the relevant period (1989-1993) there was significant changes socially and politically which impacted on the prison system.  There was, for example, a significant increase in the prison population in Queensland.  There was a closing of some correctional centres and the opening of others.  There was a reduction in the relative funding for prisons and for the implementation of the reforms suggested by the 1988 Kennedy Report.  The five yearly review of the Kennedy recommendations was undertaken by the Public Sector Management Commission whose report was tendered as exhibit No.  14.

Lotus Glen was not excluded from these changes.  In some respects the changes impacted more harshly there by reason of it being a newly established prison.  The prison staff had been recruited from the local communities and had no prior experience in the handling of hardened and troublesome inmates.  At this centre the initial intake of inmates was mainly from Aboriginal and Islander communities, whose management was, in most respects, easier.  This was called the "soft" period for the prison.  Lotus Glen was however designed to take the full range of inmates.  So there had to be a time where the prison would commence to accommodate the more difficult prisoners. 

This change however coincided with other constraints which put pressure on centre management with respect to staff numbers and it commenced with the sending of 20 high security inmates before the perimeter fence had been made secure.  The change in inmate mix can be quickly seen by reference to the relevant table in exhibit  15.

In the course of evidence at the hearing, many matters were agitated about these changes in prison numbers, prison capacity and budgetary constraints.  Some of these changes do not have to be explored in detail because they were events over which the defendant had no control and it, like everyone else, had to work within the constraints which the political and social circumstances imposed on them.  I shall deal with the major concerns.

Overcrowding

There is ample evidence that more inmates were sent to Lotus Glen than it was designed to handle.  See particularly exhibit 15 and the Director-General’s report September 1992 (ex.  74).  These additional inmates were located in the hospital wards and in the detention unit as a temporary measure.  Prison numbers fluctuated and so it cannot be said that this was a constant state.  But excessive prison numbers seem to become more common during 1991/92 with the result that prisoners were forced to double up in cells designed for one person.  This latter solution is acknowledged officially as commencing in February 1994 but there is a strong suggestion that such situations occurred informally prior to that.  The plaintiff gave details of this in his evidence but it is also referred to in the evidence of Mr. Jeremy Darvall, Barrister-at-Law, who was an official visitor to the centre between September, 1989 and 30 December, 1994.

Mr. Darvall visited the centre on a regular basis - at least monthly and sometimes more frequently.  He was aware of overcrowding which he thought started in mid 1992.  He described the adverse effects this had on the centre staff.  He was clear on the use of spare beds in the hospital and in the detention unit to accommodate additional prisoners.  These facilities provided up to an additional 18 beds provided they were not in normal use.

By February, 1994 he was aware that doubling up in cells was officially endorsed - a fact acknowledged by the defendant.  He felt that there had been some unofficial doubling up prior to February, 1994 but conceded in cross examination that doubling up may not have happened until then.  His general complaints to head office in 1992-93 were met with evasive responses and in one instance he was given information about the number of transferred southern prisoners which he knew to be incorrect.  By mid 1994 he wrote commenting on the preceding 18 months in the following terms:-

“Lotus Glen is rapidly turning into something little better than a gigantic holding cell with all its attendant dangers.  As the numbers rise, the staff become increasingly unable to cope adequately.”

He had noted that the staff could not provide the level of supervision and control necessary and that there were some difficult prisoners held there who were testing the limits of what they could get away with in circumstances where there was insufficient staff to keep them under control.

The present General Manager of Lotus Glen, Mr. Stephen Green, was called to give evidence.  He was, during the relevant period, the Farm Manager and as such participated in the management decision making process.  In his evidence he confirmed that the detention unit was used for accommodation purposes other than for detention reasons, on a fairly regular basis.  He also disclosed that the practice of using spare beds in the prison hospital was objected to by the Director of Health & Management Services in Brisbane and the practice stopped.  He also confirmed that whilst the practice of doubling up became official in February 1994 it occurred prior to this time (600/50).  Mr. Green also produced a handwritten extract of prisoner numbers which he prepared whilst waiting to give evidence.  The accuracy of his extraction was challenged as it appears there is some inconsistency between it and the official figures shown in exhibit 85 which is a reproduction of the schedule in exhibit 15.

The plaintiff’s evidence about the frequency of the doubling up and its commencement is overstated and not accurate.  However there is ample evidence of overcrowding in various contemporaneous documents but particularly in the Interlock report (ex.  25).  I quote from p.4 of that report:-

“2.Inmate Numbers

As well as being understaffed, many employees reported that the centre was “overstate” this had been occurring on and off for most of 1992, and had been a permanent situation since January, 1993.  Sometimes there were up to 16 extra inmates at the centre.  These inmates would be sleeping in the centre hospital and in the detention units.  Being overstate was aggravating pre-existing levels of stress and anxiety.  Some employees described the situation by stating “it is like playing a game of chess with 64 pieces on the board”.

Being overstate was crowding for inmates which naturally made them more irritable and volatile.

It meant that officers had to be more watchful, and due to lowered staffing levels, placed them under greater pressure.”

I find as a fact that the above description accurately describes the nature of the overcrowding and the consequences of that condition on the supervisory staff.  I find that it is probable that doubling up occurred prior to February, 1994 but only infrequently and as an unavoidable measure.

It was argued on behalf of the defendant that this was a matter beyond its control, that it arose from changed social and political circumstances for which effects there was no budgetary allocation.  As a consequence, it could not be held liable in negligence.  If the facts were limited to that there may be some merit in that argument.  But 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.

The plaintiff when acting in a capacity as General Manager had a statutory responsibility for the security and management of the prison and the safe custody and welfare of prisoners detained there (s.14 Corrective Services Act 1988). The plaintiff in evidence expressed his concern in being forced to accept more prisoners than the number for which the centre was designed. I accept his concern as being genuine having formed an image of the man as one who is concerned to do things “by the book” which could also be interpreted as being somewhat inflexible.

I accept that he asked Ms. Hight for a Commission Rule to be made to protect him against any consequences that might result from the overcrowding particularly on the occasions when doubling up occurred in potential conflict with the provisions of s.37 of the Corrective Services Act. The General Manager of course bore primary responsibility for these adverse consequences. This strict attitude on the plaintiff’s part is demonstrated by the passage of his cross examination as follows (106/20):-

“See, every correctional centre is ideally intended to accommodate a definite number of prisoners in single cell accommodation, isn’t?..Answer yes.

But that doesn’t mean that the optimum or ideal situation can be maintained at all times, does it?... Well, that’s not for me to say I see that as the established standard of the organisation that I work for.”

In re-examination, the plaintiff stated that he thought he was breaching the Corrective Services Act by taking in more inmates than the centre was designed for. His view was that the problem would be overcome if he received authority in writing from the defendant. In the absence of such authority he was concerned that he would held accountable for any adverse consequences of overcrowding (164/10).

I find that not having written authority from the defendant was a matter of continuing concern to the plaintiff and one of the factors which contributed to the development of his psychiatric condition.  I accept his evidence that he was cautioned by Ms. Hight about complaining on these matters with the words - “you might get your fingers burnt”.

Ms. Hight was unable to recall any specific requests by the plaintiff for written authority to accept inmates in excess of the designed number but conceded that the plaintiff  “held a very strong view that the Commission should not be taking additional prisoners and he supported that view with a range of reasons” (376/15).  Ms. Hight could not say whether there was a Commission rule about managing overcrowding.  She confirmed that it was not an option for prisons not to act in a “corporately responsible way given that the overcrowding was a systems problem and needed to be addressed by all prisons” (376/40). 

The defendant did not contend that there was any rule or written authority issued by the Commission, or the Director-General, which relieved General Managers of any responsibility for the adverse consequences of accepting inmates so as to cause a centre to be become overstate.  In fact Mr. Hamburger said that no such rule was required (467/45) but it seems he never discussed his view with the plaintiff, or in any way alleviated the plaintiff’s concerns.

Staff Numbers

At the same time as inmate numbers were increasing it was alleged that staff numbers were reducing.  Whether this is so in absolute terms is not clear from the oral evidence or the documents tendered.  Comparisons were made by different witnesses but it is not clear what was being compared.  The number of staff one expects would vary depending on the inmate mix, the number and types of programmes being offered at the time and changed work practices.  The most significant statistic at any time is the number of custodial staff on duty at each shift and it seems there was a reduction in the numbers committed to this task.  This too was a statewide phenomenon as is acknowledged in the Public Sector Management Commission Review of the defendant’s organisation.  In exhibit 14 at p.93, the following appears:-

“Changed work practices have contributed significantly to a reduction of around 8% in the custodial corrections budget.  Concern was, however, expressed to the review that in some centres this reduction had led to increased stress on staff and a reduced commitment to correctional programmes.  In correctional centres security is of the highest priority and other activities have the potential to suffer if funding is limited.”

The findings of that inquiry was that there had been decline in budget for custodial corrections and a recommendation that future budget reductions should not be pursued in the medium term.  That was a judgment on the political or fiscal policy which was operating during the period in which the plaintiff was relieving General Manager.  It was argued on behalf of the defendant that it had no control over these budgetary restraints and this is acknowledged by the plaintiff.  But what is relevant to the plaintiff’s claim is the way in which the defendant responded to the circumstances which were impacting on the plaintiff whilst carrying out his duties.

There is no doubt that the changes at Lotus Glen in the calendar years of 1992 and 1993 imposed increased demands on the custodial staff.  There is ample evidence from those witnesses who were employed in the centre and from the independent witness Mr. Darvall and from the findings of the Interlock inquiry of 1993.  That report stated at p.4 (ex.25):-

“It was universally accepted that Lotus Glen was understaffed.  This was clearly seen as a major problem by everyone, and particularly by the officers.  Not only was this seen as dangerous in terms of security but it was also perceived to be one of the causes of excessive leave.

It was put forward by many that being understaffed created stress for officers who had to cope with inmates with less backup from fellow officers.  It also meant that officers had to work overtime in order to cover the vacant shifts.  This in turn meant that the officers had less time to unwind, spend time with their families, go fishing and so on - thus they were, in the long term, more vulnerable to sickness and stress.”

I find as a fact that the above description accurately described the situation.  The report also identified that this was one of the constraints over which Lotus Glen had no control but the problem cannot simply be shrugged off by that comment.  It was made known to the defendant that this situation created increased pressure on those charged with the management of the problem.  The manager’s capability of dealing with the increased workload and stress thus generated ought to have been assessed.  Indeed, this was one of the recommendations of the Interlock Report expressed in the following terms (at p.17):-

“Management may need to be given training not only in how to cope, but also in ways of altering this behaviour.  It is possible to effect change indirectly with people or bodies that are powerful but this process takes time.  The management team will need support if it wishes to take on such a task.”

And at p.90:-

“Managers and Seniors need to receive training on how to implement changes in the workplace in an appropriate manner.  There is a perception that head office and the Commission are breaking all rules.  That does not mean that Lotus Glen has to follow suite.  Managers need to know why people resist change and how they can be helped to adjust to it.  This training would complement training on how to deal with head office and the Commission.”

It is to be remembered that the Interlock Report though ultimately undertaken with the defendant’s approval was sought by an employee.  But the scope and importance of the concerns which led to the inquiry being sought, ought to have been known to the defendant prior to 1993. 

Despite having this information the defendant’s response to this identified problem was to impose a recruitment freeze for any position that became vacant until prior expenditure can come back to budget rules.  This appears in the Lotus Glen Financial Review of 14 October, 1993 (ex. 58).  This document also demonstrates that staff numbers were below establishment level.  In fact prior to September, 1993 staff numbers were 162 against an approved staff establishment of 179.

The defendant relied on this document in asserting that the understaffing was not at a significant level and that the plaintiff had exaggerated when he suggested that staff numbers were as low as 130.  The Financial Review refers to the rostered custodial staff as being 139 which included 18 relief shifts per day to cover recreation and other leave.

In my view not much turns on the actual figures or comparisons.  I am satisfied that staff numbers available for work were below proper levels on a frequent basis.  This fact caused stress amongst the staff, tensions between custodial staff and management and this impacted on the plaintiff’s condition.  The defendant though aware of the problem took no steps to alleviate the situation for the plaintiff.

In addition to this the plaintiff referred to an operational manning policy which, was implemented in an attempt to reduce overtime costs and resulted in the centre having to work with the number of persons who turned up for their rostered shift.  The example was given that if 30 people were rostered for work and only 20 turned up that the centre had to operate with those 20 regardless of the work demands.

The dangers inherent in such an arrangement are manifest - the risk of disputation between prisoners and increased demands on centre staff.  Changes in policy of this kind increased for the managers concerns for their staff as well as the difficulty of having to deal with the tension between them and the staff.

The defendant submitted that a letter written by the plaintiff to a Mr. Walling (ex.  35) demonstrates that his evidence that there was staff shortage is incorrect.  I accept the plaintiff’s explanation that he wrote the letter simply enforcing the defendant’s line because he had to manage in the circumstances as best he could.  What is more informative in the exchange of correspondence between Mr. Walling and the plaintiff is the last paragraph in Mr. Walling’s letter which reads:-

“If someone is hurt, or heaven forbid die, because there was not enough officers on duty it should then become the responsibility of the person who would not allow more staff to be allocated to that shift.”  (ex.  34)

This demonstrates the pressure put upon managers, which the plaintiff himself felt, notwithstanding his having to cover up the shortcomings in staffing arrangements.

I find that there were inadequate numbers of custodial staff on duty on a regular basis at the centre.  Whilst this, to some extent, may have been a matter outside the control of the defendant there were steps that could have been taken and which ought to have been taken to reduce the level of tensions in the management staff that this gave rise to.  I refer again to the recommendations contained in the Interlock report (ex.  25).

Inmate Mix

The timing in the changes of the inmate mix was a matter over which the defendant had some, but not complete, control.  I have mentioned the transfer of 20 high security prisoners before the perimeter fence had been made secure.  Another was the sending of a notorious inmate, Kerry Jones, to Lotus Glen without prior consultation with the plaintiff in his then capacity as acting General Manager.  Apparently discussions were held between Mr. Hamburger and Mr. Lane but none of this was communicated to the plaintiff who bore the immediate responsibility for the handling of the new inmate and the safety of the centre staff.

The plaintiff claims that the presence of this inmate was directly related to the increase in assaults and threatened assaults on correctional officers.  Different figures for the number of assaults were introduced by the parties and the accuracy of the plaintiff's graph (ex. 21)  showing the rise of such incidents was challenged. 

I accept that one matter with which the plaintiff had to deal in the period 1992/1993 was the significant rise in such incidents and that the presence of the inmate Kerry Jones was a contributing factor to this increase.  It is not necessary to go into the detail of this, suffice it to observe that the presence of this inmate and some others like him added to the pressure placed on the custodial staff giving rise to problems which impacted on the plaintiff’s work demands.

I accept that the lack of adequate consultation with the plaintiff either by Mr. Hamburger, or Mr. Lane, before the transfer and the lack of assistance thereafter was a contributing factor to the stress effects of which he complained.  Despite his request for help none was forthcoming.

Nepotism and Cronyism

An allegation of nepotism and cronyism was made by Mr. Norris against the plaintiff in respect of his conduct as the chairman of a selection panel making appointment to a management position.  Mr. Norris was an unsuccessful applicant for the position, the appointment having been given to Mr. Elliott.

On 10 June, 1992, in lodging an appeal against Mr. Elliott’s appointment, he stated as his first ground:-

“1.Nepotism - Well known in the centre that the three chiefs who were appointed to the support office positions here were identified for fast tracking through the system by our management here.  They are all friends (including interview chairperson and appointee) and are in Masonic Lodge together.”

The plaintiff was greatly upset by this allegation and was concerned to ensure that the matter was properly investigated so that his name would be cleared.

In point of fact, whilst the plaintiff was a member of the Masonic Lodge none of the other members of the appointment panel nor the appointee Mr. Elliott were.  So the allegation was false in that particular and, the plaintiff alleges, false in substance.

The plaintiff was particularly exposed to allegations of nepotism since during 1992 and 1993 his wife, daughter and son-in-law were each employed at Lotus Glen.  The plaintiff when not relieving as General Manager filled the position of Manager (Operations) who was responsible for the custodial staff and therefore these three family members.

The plaintiff maintains that he was scrupulously careful to ensure that there was no favouritism given to members of his family.  In this view he is supported by the evidence of his wife who felt that she, in fact, had been disadvantaged by reason of the plaintiff being over zealous to ensure that there was no favouritism towards her.

The appeal lodged by Mr. Norris was withdrawn in November, 1992.  Despite this the allegations and rumours about nepotism and cronyism in the conduct of the plaintiff persisted.  He was no doubt aware of such rumour and innuendo.  The official line for the defendant was that the appeal having been discontinued there was no need to deal with the matter further.  However, the matter again arose in the Olsen Report (ex. 24) in the following month.  Mr. Olsen used the words - “Perceptions here are that he [the plaintiff] practices nepotism favouring or using family members to assist in his management (his wife, daughter and son-in-law work here).  Another perception is that nepotism extends to employees who are fellow members of the Masonic Lodge.  No specific examples of nepotism or cronyism apart from a suggestion that a female custodial officer was being harassed by the plaintiff’s wife and that her attempts to discuss the matter with the plaintiff resulted in his shouting at her in an intimidatory way and [continued thereafter to deal with her unfairly].  Another example was the questioning by the plaintiff’s wife and daughter of business discussed at a union/management meeting.”

These perceptions of nepotism were still current at the time of the Interlock inquiry in June, 1993 - 8 months after the appeal was withdrawn and 5 months after the management workshop.  The report (ex. 25) states as follows (at p.11):-

“There were a high number of references to the reported “nepotism” and “cronyism” within the centre.  These, however, appeared to reflect past occurrences rather than recent ones.  There still appears to be a large amount of cynicism and anger present regarding these past events.”

The January, 1993 meeting between the management team and Mr. Hamburger and Ms. Hight apparently discussed the issue but, it seems, it was discussed in a vacuum.  The allegations contained in the Olsen Report were not put directly to either the plaintiff or other members of the team.  The Director-General required steps to be put in place to ensure that decisions were made in a transparent way so as to avoid allegations of nepotism.  The management team indicated that they saw no need to change their practices because so far as they were aware there was no basis for any allegation of nepotism. 

The plaintiff however was aware of the perceptions and the rumours and sought an independent inquiry and the services of an independent counsellor to put the matter to rest.  This is understandable because whilst such perceptions were abroad his authority as manager, as well as his personal reputation, was sullied.

Despite his expressed concerns he received no help from the defendant’s head office and as a consequence he initiated a grievance procedure on 27 April 1993 in an attempt to have the complaints dealt with openly.

The Olsen Report

Mr. Olsen was well known to the plaintiff. They had worked together during the 1980's and had socialised outside working hours.  From the title of his position and from the fact that he had assisted in a number of enquiries I infer that Mr. Olsen had developed a reputation for investigations and for correcting problems in prisons.  One matter on his agenda on arrival was to look at the issues associated with custodial officer, Ms. Alford, who had been in dispute with the plaintiff in the latter part of 1992.  It is not necessary to make a detailed consideration of this issue, nor indeed of any of the issues raised in the Olsen report.  Arguments were raised about the accuracy of Mr. Olsen’s allegations and the validity of his assessments.  But what is important in this case is the way the report was dealt with.  Firstly, the report was acted upon by Mr. Hamburger.  His receipt of the report just before the Christmas holidays was the catalyst for the management workshop undertaken on 4-6 January, 1993.  Given the nature of Mr. Olsen’s remarks, Mr. Hamburger ought properly to have been concerned about the state of Lotus Glen.  Allegations that the plaintiff governed with fear, was autocratic, that he appointed friends to higher position because they were also members of the Masonic Lodge, were serious matters and if shown to be true would surely have given rise to a consideration of instituting disciplinary action if not dismissal.

Mr. Hamburger was well aware that the contents of the Olsen report had not been discussed with the centre management group, including the plaintiff.  The speed of Mr. Hamburger’s response to the Olsen report  is in marked contrast to his action taken in respect to the plaintiff’s grievance procedures and the plaintiff’s wife’s letters to Mr. Rule.

According to Mr. Hamburger’s evidence the issues raised in the Olsen report were dealt with in a “constructive manner”.  He felt, all of them “had been talked through and there had been agreement reached that we would ensure that there were appropriate steps in place to ensure that we dealt with that in the future”.  (466/15).

The plaintiff alleges that at the management workshop various issues were discussed but at no time was there any direct communication to him that Olsen had expressed to Mr. Hamburger negative views about the management of the centre.  He claims that at the end of the conference Mr. Hamburger used words to him to the effect that the meeting was intended to be a “dismissal meeting” and that he was both surprised and somewhat shocked by that remark.  Mr. Hamburger denied that there was any comment about “dismissal” and could not recall having used the words attributed to him by the plaintiff.

The plaintiff was employed on a contract which provided for termination without prior notice only in circumstances of grave misconduct or other failures outlined in clause 12 of the Contract of Employment.  In establishing grave misconduct or other grounds the plaintiff would have to be dealt with in accordance with the rules of natural justice.  I accept that Mr. Hamburger would be well aware that he had no basis for dismissing the plaintiff at the date in question but there is also no doubt that he would have been aware that this was an option if the serious allegations that Mr. Olsen made were ever found to be true.

In those circumstances I am prepared to accept that there was a discussion at the conclusion of what Mr. Hamburger considered was a constructive meeting in which he gave expression to the concerns he had prior to his arrival.  I am prepared to accept that there may have been a reference to the option of dismissal but I do not accept that this discussion had the level of threat which the plaintiff sought to suggest in his evidence.  No doubt the plaintiff’s recall of this conversation would be coloured by the fact that he later became aware of the existence of the Olsen report and its adverse comments about him.

I accept that the Commission denying the plaintiff access to the Olsen report or to be open with him about its contents was a significant factor in the development of his psychological condition.

I am satisfied that Messrs.  Hamburger and Rule and Ms. Hight were each aware that the plaintiff was distressed by this event.

The Grievance Procedure

When the plaintiff was unable to access the Olsen report on an FOI application he lodged a grievance notice on 27 April, 1993.  (ex.  62)   In it he claimed to have been denied natural justice by the non-disclosure of a report which may cause prejudice to him in his employment.  The grievance was lodged with the General Manager, Mr. Lane, and referred by him presumably in accordance with procedures, to Mr. Rule, the General Manager, (Human Resources).  The plaintiff was sufficiently concerned about this procedure to retain a firm of solicitors to act on his behalf and to take the matter up with a Mr. Tony Brown from the relevant Public Service union.  The defendant’s investigation into this grievance was undertaken by Mr. Rule.  His report is exhibit 64 in these proceedings.  This report deals also with the unresolved allegations of nepotism and cronyism which it appears was still current in the centre environment. It is apparent from that report that, even at that early stage, the plaintiff had a different perception to Mr. Hamburger about the context of the exit discussion following the workshop.   In paragraph 18 of the report the following appears:-

“You [Mr. Hamburger] indicated that at the end of the discussion Mr. Gallagher thanked you and indicated he was prepared to let bygones be bygones.  You said Mr. Gallagher indicated that the discussion had been fair and you indicated that you hold no jaundiced view of Mr. Gallagher.  However when I discussed this grievance with Mr.Gallagher he advised me he had made no such gentleman’s agreement.”

Mr. Rule then goes on to speak of his difficulty in dealing with the grievance by reason of the Olsen report not being made available to him.

In the end result the grievance was not dealt with in the ordinary way but rather a compromise arrangement, whereby the defendant gave an undertaking that the Olsen report would not be placed on the plaintiff’s file and that he would not suffer any detriment by reason of its existence, was reached. 

The defendant contended that by receiving assurances from the Director-General, the plaintiff should have let the matter rest and got on with his work.  That contention ignores the circumstance that the issues remained “alive” at the workplace.

Whilst the plaintiff agreed in this course being followed, it is clear that he was not satisfied that he had been fairly treated.  This continued to be a circumstance which added to the stress which the working conditions was imposing on him.  The defendant was well aware this issue had not been laid to rest.  This situation persisted until the plaintiff finally ceased working in January, 1994.

In my view it is part of the employers duty of care, particularly in a public service setting, to investigate persistent allegations of impropriety against a manager.  I am satisfied that the defendant’s failure to investigate and resolve the issues raised in this grievance procedure resulted in it remaining a continuing source of stress to the plaintiff.

I have made findings that the plaintiff was emotionally affected by the working conditions and by certain events referred to above.  My findings to a degree depend on matters of credibility and how I assess the plaintiff’s reliability in describing the situations that he claimed were stressful to him.  Much of what he has complained of is supported independently by the contemporaneous documents which had been tendered.  In this connection I particularly refer to the Interlock report (ex.  25).

Also tendered before me were two documents from an earlier time.  The first of these is the relieving duty assessment made by Mr. Bennett (ex.  8) and the other a letter written by Mr. Lobban, a former director-general, in response to the plaintiff’s query as to why he was unsuccessful in a higher position appointment contest (ex.  48).

The first of these related to a performance assessment of the plaintiff in July, 1987.  That assessment came to the view that the plaintiff took a highly motivated approach to his responsibility, he had genuine commitment to departmental goals and that his future was likely to be in a management position.  The assessment also concluded that there was need for further development using the words - “could benefit from taking a more relaxed approach - may yet worry himself to death”.  The assessments made in the ensuing two months were tendered by the defendant.  (exs.  69,70)  One of these showed the plaintiff was coping in the position without difficulty and each of them referred to his potential for management position provided this could be developed with experience.  Obviously the plaintiff’s potential for management was recognised by his various appointments at Lotus Glen.

Mr. Lobban’s letter was written in January, 1988 and include the following comments:-

“My advice to you is more time, more of your good work, more calmness, more concept development (see Peter Rowe for advice), and you need to feel secure about your own life.  I notice that Tony Bennett commented on your worry.  At this stage, a true management job could kill you.  You would be torn by conflicting beliefs and inner doubts.  Peter Rowe knows a good deal about gaining inner peace and strength.  Perhaps he may have something he can say in this area.”

Although it was not stated in evidence I assume that these documents were available on the plaintiff’s personnel file and therefore available to the defendant if there had been  undertaken any review of his capacity to handle stressful situations. 

The plaintiff came from a military background.  He learnt prison management under the highly regimented system that existed prior to 1998 and one expects he would have been comfortable with such a system.  It may be the case that with this background of working by the book and making literal interpretations of duty and responsibility reduced his ability to adapt to new situations. 

My assessment of the plaintiff both in the manner in which he gave evidence as well as its content led me to the view that he was a person who showed some rigidity in his personality which would cause him some difficulty in making changes.  His conduct in the support of Mr. Lane, in circumstances, where viewed objectively, he was entitled to be critical shows that he was a person capable of offering considerable loyalty to a team.  His pursuit of a remedy against what he perceived was an injustice showed a level of tenacity which is consistent with this personality type.  I am satisfied that he was a competent manager and that he took a good deal of management responsibility even when working as a subordinate to Mr. Lane. 

The defendant pointed to the fact that between 1987/88 when the earlier assessments were made and the time of these events the plaintiff served satisfactorily in a management position.  Whilst that is correct it is to be noted that his position was as a staff development officer which I suspect has demands quite different to the rigours of being an operations manager and relieving general manager in a prison

The plaintiff’s competence and his capacity for work was also attested to by the witnesses.  Ms. Lawson, office secretary, described him as “very proficient, a very nice man with everything that he did was to the book or very detailed - a very competent man”.  The change that she noticed in him during the relevant period was as follows:-

“He’s not as vibrant as he was, seems more vague when you speak to him, it’s like he’s trying hard to be his old self because we had a very good working relationship and he was also very cheery but now he just seems very tired.” 

She disagreed with the comments on the plaintiff set out in the Olsen report and in particular the comments about his relationship with members of the staff.  Mr. Darvall was specifically asked if he noted changes in the plaintiff in the period of his being a visitor and he responded - “well he [the plaintiff] just became a disillusioned, frustrated man, there didn’t seem to be anything that he could do, he lost his motivation and, I don’t know - yes, he just changed from this outgoing individual to a disillusioned frustrated man” (212/5).

Any worthwhile monitoring of the plaintiff’s performance would have disclosed that he was under pressure from his work environment.  But here the plaintiff himself made it clear to Mr. Lane in the first instance at the beginning of 1992 that he was having difficulties with the stress of the job.  Mr. Lane was the appropriate person for the plaintiff to notify and that was effective notice to the defendant.  Again, in December 1992 when the plaintiff, on medical advice, took stress leave of one month, there was notice to the defendant that the plaintiff’s health was being affected by the demands of his work.  Mrs.  Gallagher’s letter in February 1993 was quite specific as to causes of the plaintiff’s stress and the effect it was having on him and on their lives.  The plaintiff’s complaints about the handling of the Olsen report and the nepotism issue in April, 1993 again gave notice to the defendant of the pressure the plaintiff was under. 

The preparation of the Interlock report in July was a detailed independent assessment of difficulties at the centre.  Although the report was not released until later that year I infer that if the defendant’s senior managers had taken an interest in that inquiry and followed its progress it would have been made aware of the factors known to be affecting a number of employees.  In the end result the defendant ignored the report and further aggravated the stressful situation by enforcing even more strict manning policies.  There is a period then from the beginning of 1992 to the end of 1993 when no action was taken to relieve the plaintiff of the stressful situations about which he complained in January, 1992.

The defendant submitted that the plaintiff was a manipulative person and that certain matters in which he gave evidence were exaggerated.  It referred to the conflict between his description about the effects of inmate numbers and staffing numbers at the centre in a way in which it conflicted with the evidence of Ms. Hight and the fact that his evidence in relation to the double up was in conflict with that of Mr. Lane and of Mr. Darvall.

The assessment of the pressures at the centre by Ms. Hight or Ms. Dutney made during the course of fleeting visits are not as reliable in my view as the assessment made by Interlock as part of a detailed study.  I have indicated that I accept as the fact the assessment made by Interlock.  In this regard that finding is more consistent with, though not identical to,  the evidence of the plaintiff.

Some other matters were said to go to credibility.  In relation to the frequency of the double ups I have indicated that the plaintiff’s evidence was overstated in this respect, although I have taken the view that such events did occur from time to time.  In relation to the telephone conversation between the plaintiff and Mr. Olsen whilst the plaintiff was on sick leave I prefer the evidence of the plaintiff which was to the effect that he was simply reminding Mr. Olsen of the temporary nature of his appointment and the need to consult with Mr. Lane before changes were made.  It might well be that Mr. Olsen resented such a suggestion being made and I am further guided by the fact that many of the allegations in Mr. Olsen’s report were demonstrated to be false.  I believe his evidence about the telephone conversation is coloured by the motives giving rise to the false assertions made in his report.

Of more significance are the inconsistencies and sometimes exaggerations in the plaintiff’s comments to the specialists who examined him for the purpose of this case.  The plaintiff told Dr. Mulholland that “all of the five managers who were either at Lotus Glen or were there shortly after the institution opened had, in one way or another, become psychiatric casualties”.  He referred also to 2 subordinate members having “both collapsed with stress”.  These remarks were incorrect.  The only managers or subordinate managers who were affected by stress were Mr. Lane, whose problems were probably not related to the work pressures, and Mr. Tynan and Mr. Hardy, whose problems were.  In cross examination the plaintiff agreed that his use of the words “collapsing from stress” was excessive.  Whatever purpose the plaintiff had in using those words on that occasion, it should be noted that his statement to Ms. Sharon Daniels recorded in her report of 26 July, 1997 (ex.  5) was accurate and this report had been given to Dr. Mulholland. 

I have indicated above that the plaintiff’s evidence in relation to the work conditions is largely supported by contemporaneous documents.  Apart from the matters I have specifically mentioned,  I accept the plaintiff as having given reliable evidence.

In my view much of the plaintiff’s difficulties stem from the failure of Mr. Lane to manage.  From all reports he was a personable man, well liked by members of his management team, by those to whom he reported and widely throughout the prison system.  He was described as something of  “an avuncular figure”.

His management style was to delegate extensively and it seems he avoided making the tough decisions.  Being personable and well meaning, he was treated with respect and loyalty by his staff.  It seems, however, by his delegating to this extent he did not appreciate the real effect of the problems which confronted his staff and the effects it was having upon them.  Even his resistance to having the Interlock agency undertake the survey in mid 1993 is instructive.  Whilst he allowed the inquiry to be undertaken he was not pleased that it had been sought expressing the view that the report would “come back to bite us one day”.  The plaintiff gave evidence that in late 1993 when Mr. Tynan was suffering the effects of stress he spoke to Mr. Lane on at least half a dozen occasions about seeking help for the management team.  Mr. Lane’s reaction to this was to say “if I do that, they’ll think I can’t manage”.  By this time, according to the plaintiff, Lane himself was affected by the problems they all faced.  The plaintiff described Mr. Lane as having “withdrawn from the entire problem” and that his way of dealing with matters was to do nothing.  This view is supported by a similar assessment by Ms. Hight in her report of 21 January, 1994 (ex.  40), she expressed her opinion in the following terms:-

“When consensus cannot be reached within the management team, the general manager (Mr. Lane) has not been able, or willing to, adjudicate in a manner that produces the most appropriate outcome.” 

This is a rather late realisation of a problem that had existed for quite some time.  Mr. Lane’s unwillingness to disclose inadequacies in management to the defendant’s senior managers may well have been behind his personal request to the plaintiff to take on the position as relieving general manager contrary to the plaintiff’s expressed wishes.

The injury in respect of which the plaintiff claims is of a psychiatric nature.  The authorities are clear that such an injury is compensable if liability for its onset, or exacerbation, is established.  See Mount Isa Mines Pty.Ltd. -v- Pusey (1970-71) 125 CLR 383; Wodrow -v- Commonwealth of Australia (1992) Aust.  Torts Reports 62,711 at p.62,727.  In this case the defendant did not submit to the contrary.

The defendant as an employer was subject to a duty of care at common law and by force of the statutory provisions of s.9 of the Workplace Health & Safety Act 1989.

The duty of care owed at common law by the defendant to the plaintiff is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the plaintiff to unnecessary risk of injury.  See Hamilton -v- Nuroof (W.A.)  Pty.Ltd.  96 CLR 18 at p.25 (per Dixon CJ) adopted by Mason, Wilson and Dawson JJ in Bankstown Foundry Pty.Ltd. -v- Braistina 160 CLR 301 at pp.307-8.

The defendant contends that there is no breach of either duty and further that the plaintiff has not shown that there were any work related features which caused his condition.

To determine whether the employer’s duty has been breached it is necessary firstly to ascertain whether a reasonable person in the defendant’s position would have foreseen that the defendant’s conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  See Wyong Shire Council -v- Shirt 146 CLR 40 at p.47. I have little difficulty with the issue of foreseeability in this case. The plaintiff’s anxiety was made obvious to Mr. Lane, his immediate superior, in the early part of 1992. In other words he expressly made the defendant aware of his difficulties and that he attributed them to the work environment. The potential development of this anxiety into a full blown psychiatric condition was neither “fanciful or far fetched”.

The question of whether a reasonable person would take steps to avoid that foreseeable risk of injury to the plaintiff is “to be answered by ‘balancing the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities’ which may exist”.  See Miletic -v- Capital Territory Commission (1995) 69 ALJR 675 at 677 citing from Wyong (supra).

The plaintiff’s request to Mr. Lane, his time off work on stress leave in December 1992 and the general incidents of work related stress within Lotus Glen forces me to conclude that the defendant was, or ought to have been, well aware that there was a significant risk of doing psychiatric harm to the plaintiff unless steps were taken to avoid it.

Finally, to find a breach of duty, it must be shown that the defendant “unreasonably failed to take measure or adopt means, reasonably open to it in all the circumstances which would have prevented the plaintiff from the dangers of his task without unduly impeding its accomplishment.”  See Vozzo -v- Tooth & Co.  Ltd.  112 CLR 316 at p.319.

The onus is on the plaintiff to establish that his psychiatric condition was caused, or materially contributed to by the defendant’s conduct.

The defendant argued that it is difficult to relate the plaintiff’s illness to any particular work conditions and, more precisely, any particular work condition involving negligence.  As a consequence, it argues it is impossible to conclude that the plaintiff’s illness would not have occurred irrespective of any work conditions involving negligence.

The defendant led no evidence to suggest that the stress developed in the plaintiff because of any factor outside his work environment or that the plaintiff had any susceptibility to psychiatric damage.

Dr. Rigano was the first consultant to see the plaintiff after he ceased work in February, 1994.  Dr. Rigano’s report states that the plaintiff had ceased work on 30 November, 1993 but this is an error based on the date in which the plaintiff resumed receiving Workers’ Compensation medical benefits.  It follows then that Dr. Rigano saw the plaintiff quite soon after he ceased work.  The plaintiff was then diagnosed as suffering from a Major Depression in partial remission.  Dr. Rigano’s opinion was that “the continued stress of the work environment was the only clear factor indicated in the development of his condition”.

Dr. Mulholland, consultant psychiatrist, did not see the plaintiff until 22 September, 1997.  He diagnosed the plaintiff as suffering either a Major Depressive episode or a dysthymic disorder.  In his report Dr. Mulholland said the attribution of these conditions is always difficult, however it appeared to him that the plaintiff was “not able to adjust to, and deal with, the psycho-social dynamics of his workplace such that he has seriously, emotionally de-compensated”.

On 6/7 October, 1997 the plaintiff saw Dr. Ian Lynagh, consultant psychologist who similarly assessed the plaintiff as suffering a Major Depressive disorder which he said “appears to have its origins in the extended history of the occupational stress in question (i.e. at Lotus Glen)”.

Ms. Sharon Daniels, clinical psychologist, in her report made the same diagnosis and referred to the plaintiff’s condition as being “a result of a work related injury”. 

In oral evidence Dr. Mulholland acknowledged that the mood disorder which the plaintiff suffered as a reaction to work conditions was a matter of degree both in quality and quantity of symptoms.  In reaching his diagnosis he had to rely on the reports of symptoms and their causes given by the plaintiff.  As I have indicated my acceptance of the plaintiff’s description of his work conditions and the impact of the various events upon his mental state I accept Dr. Mulholland’s opinion based on his assumption of those facts.  The fact that the plaintiff did not complain to Dr. Mulholland specifically of the effect upon him of the allegation of nepotism and cronyism does not cause me to doubt the accuracy of Dr. Mulholland’s diagnosis.  I accept from the description of the work environment set out in his report that he understood most of the work related pressures under which the plaintiff worked.  The value of trying to identify the effect of individual incidents was rejected by Dr. Rigano in his evidence with his answer (at 286/1) - “Mr. Gallagher’s case was quite complex and I simply don’t think there is any one factor that was responsible for his symptoms”.  Further he said (286/15) -

“Going back 4 years... there were I guess background factors and specific factors and the background factor was the frustrations of dealing with hierarchy which is talked about at some length.  As I recall it, he was a middle level executive in so far as he had to deal with coal face work staff and he had to deal with senior managerial staff and had to effect a policy which, to my way of thinking, was laudable in its concept but perhaps difficult or impractical to implement.  Now I viewed those sorts of emotional and work related stresses as the main reason why he (de-compensated).  Then there were specific factors which I can’t list at this stage but would have related to specific instances or dealings with other staff.”

As I have indicated above the defendant does not point to any other circumstances outside work conditions to explain the development of the plaintiff’s condition. 

The defendant’s contention that I should examine the effects on the plaintiff’s well-being of the specific incidents and make a determination of whether any of those incidents bespoke negligence is not in my view the correct approach.  The position in similar to that discussed by the Court of Appeal in State of Queensland -v- Keeys (1997) Aust.  Torts Reports 64,473.  See per McPherson JA at p.  64,475:-

“In relation to causation, the orthodox attitude continues to be that the plaintiff bears the onus of proving that the defendant either “caused or materially contributed to” the injury complained of by the plaintiff.  See March -v- E. & M.H. Stramare Pty.Ltd. (1991) 171 C.L.R. 506 at 514, citing Duyvelshaff -v- Cathcart & Ritchie Ltd. (1973) 47 ALJR 410 at 417.

Using that test in the present case does not, however, make resolution of the problem very much simpler.  To my mind, part of the difficulty arises from the way in which it has been sought here to abstract the single issue of causation from its surrounding legal and factual matrix and attempting to deal with it in isolation from other elements of the cause of action, such as duty of care and negligence.  In March -v- Stramare Pty.Ltd. (1991) 171 CLR 506 at 535-53, McHugh J criticised this tendency in the course of approving a proposition of Lord Denning in Roe -v- Minister of Health [1954] 2 Q.B. 66 at 85; that the question to be considered is whether the consequence complained of is “fairly to be regarded as within the risk created by the negligence. If so, the negligent person is liable; but otherwise not”.”

On the balance of probabilities I am satisfied that the work events which the plaintiff describe as giving rise to stress for him were indeed the factors which led to the onset of his psychiatric condition.

The effects of these events could have been avoided in a number of ways.  Firstly, Mr. Lane ought to have made a better assessment of the plaintiff’s condition, particularly after prevailing upon the plaintiff to do the general manager’s job when he asked not to be considered.  If Mr. Lane was not able to do this personally, it is a matter that ought to have been discussed with senior managers of the defendant.  The condition leading to that request  was then a minor problem for the plaintiff.  Its cause should have been examined and steps taken in line with those suggested at a later time in the Interlock report (ex.  25).  This should have included the development of strategies to overcome the stressors for centre management, training on how to implement change, to develop coping skills and to provide better communication.

Secondly, when the plaintiff had time off work in December 1992, soon followed by Mr. Tynan, again there was no inquiry into, or assessment of, the stressors.  Had this been done in a dispassionate way rather than the expedient acceptance of the Olsen report then the information later revealed in the Interlock report would have been ascertained earlier.  The defendant failed to heed the signs that staffing problems existed at Lotus Glen - absenteeism, excessive overtime, the rise in prisoner incidents.  It ought to have known of the problems and dealt with them in the manner suggested by Interlock.  If (though it is denied) the placing of  Mr. Olsen  was an attempt to enquire into the problems at Lotus Glen then it was an inappropriate response to the complex difficulties.  Similarly, in respect of the specific matters dealt with above, particularly having regard to the letter of Mrs. Gallagher, there were obvious ways in which the plaintiff’s concerns could have been handled.  In fact no ameliorating action was taken by the defendant.

I have been referred to a number of decisions of stress related claims which, in the main, demonstrate the application of the above principles in such cases.  As a consequence different fact situations have led to the claimants in some cases being successful and the claimants in others not successful.  I do not propose to refer to those cases in detail.

I am satisfied that had the defendant heeded the obvious signs of stressful circumstances at the workplace, listened to expressed concerns about the plaintiff’s health, and then implemented appropriate reviews and training programmes, it could have significantly reduced the risk of the plaintiff’s developing this illness.  I find that the defendant was negligent in not taking those steps in these circumstances.  I also find that the defendant is in breach of the provisions of s.9 of the Workplace Health and Safety Act.  The defendant, to avoid the liability imposed by the statute, bears the onus of showing it was not practicable to take steps to avoid the risk to which I referred.  It has not adduced any evidence to this effect.  Rogers -v- Brambles Australia Limited (unrep. C.A. No.  189/1995).

The defendant also did not pursue its allegation of contributory negligence and the plaintiff is therefore entitled to recover the full extent of his loss.

Turning to the assessment of damages.  The plaintiff suffered a Major Depression.  The effect of this condition on his physical and emotional state was quite significant and many of those effects continue despite his having undergone treatment and counselling.

When he ceased to work the plaintiff was not quite 46 years of age.  He had been in reduced health for almost 2 years prior to that.  The effects of his condition were to leave him with a sense of hopelessness, of being unable to concentrate, having poor memory, physical tiredness, low libido and subject to mood swings.

Prior to the development of these symptoms the plaintiff was described as being an easy going active person who was enthusiastic about his work at Lotus Glen.

The changes that have occurred in the plaintiff have impacted on the plaintiff’s marriage and his relationship with friends and former co-workers.

The plaintiff has undergone counselling, principally with Ms. Daniels with a frequency of 3 sessions per month at certain times.  The evidence is that he will need to continue this type of treatment in the future, the cost for which has been given at $10,560.00.

The plaintiff will continue to suffer with the effects of this condition though all the medical experts who gave evidence believed these effects will reduce after the conclusion of this litigation.  It does not seem possible to assess with any precision the level of disability the plaintiff will have to bear in the future.  In any event he will always be more vulnerable to psychological stress.

For pain suffering and loss of amenities I allow the sum of $60,000.00.  Of this sum I attribute $25,000.00 to the past and allow interest thereon at 2% per annum for 4.5 years.  This calculation yields $2,250.00.

The plaintiff was employed on a contract which was to expire on 4 February 1996.  The contract provided an extension of the term for a further period of 5 years exercisable by notice in writing delivered at least 3 months prior to the initial expiry date.  The contract could also be determined on one month’s notice by either party to the other.

I accept that the plaintiff intended to make a career in corrective services.  He would certainly have renewed the contract.  Had he not been in ill health for the causes mentioned above it is most likely he would have continued in the defendant’s service at least until the year 2001 by which time he would be 53 years of age.

Mr. Rule expressed a view about the plaintiff (457/40) which led him to conclude that the plaintiff as Operations Manager, was at the peak of his career.  He also stated he would not have recommended a continuation of his employment if the plaintiff ended his contract.

I think Mr. Rule’s view of the plaintiff is somewhat harsh and is no doubt coloured by the plaintiff’s response to the work situations described above.  Despite this the plaintiff has displayed characteristics of inflexibility and difficulty in communication which would reduce his prospects of promotion.

I am not prepared to find that the plaintiff would, as a matter of probability, have achieved the rank of general manager on a permanent basis though he may have from time to time been called upon to act in that capacity.

For the period February, 1994 to the present I calculate the plaintiff’s loss of income (including allowances for rent, electricity and telephone) at $187,000.00.  From this is to be deducted the sum of $27,140 termination pay already received by the plaintiff, leaving a starting basis of $159,860.00.  Making a modest deduction for contingencies I allow for past economic loss, the sum of $140,000.00.

Of this amount $103,791.00 attracts interest - viz $140,000.00 less $36,209 (W.C.B. salary and disability - tax).  At 5% per annum for 4.5 years the allowance is $23,000.00.

For loss of future earning capacity, I have regarded the plaintiff as being likely to have continued as operations manager at least until 53 years of age.  For the period thereafter I expect the plaintiff would continue in employment in a managerial capacity though not necessarily with the defendant.  In his post illness applications he has shown a willingness to consider a wide range of employment positions.  But for the effects of the psychiatric condition he would have been seen as a worthy candidate for many of them.

Applying the present salary for an operations manager ($691.00 per week) for a 10 year period the basic loss is $285,000.00.  With the value of perquisites such as rent, electricity and telephone added, the loss increases to approximately $305,000.00.  Of  course, on a more favourable view, he may have continued to work to age 65 years which would lead to a significantly higher figure.  It was suggested that the plaintiff after the conclusion of litigation and having the benefits of further treatment will have a residual earning capacity.  Whether any such capacity will be productive of financial benefit is another question.  Any employment now for the plaintiff given his age, his long period off work and the nature of his disability, is likely to be part time and intermittent.  The probability, given his vulnerability to decompensation, is that he is likely to remain unemployed.  However taking account of the various contingencies, both favourable and unfavourable, I assess the plaintiff’s loss of future earning capacity at $250,000.00.

The claim for lost superannuation benefits is appropriate since the future loss is predicated on the plaintiff continuing to be employed.  I assess the allowance for this loss at $12,500.00.

I accept that the plaintiff is entitled to an allowance for past services under the Griffiths -v- Kerkemeyer principle.  Though his injury was not directly physical it did have physical effects which caused the plaintiff’s dependance on his wife from time to time.  I allow the sum of $5,000.00 (including interest).

For future treatment and special damages the parties have agreed on an appropriate allowance.

In summary, the compilation of my allowances is as follows:-

General Damages   60,000.00

Interest thereon  2,250.00

Past economic loss   140,000.00

Interest thereon   23,000.00

Loss of earning capacity   250,000.00

Loss of superannuation benefit   12,500.00

Past care  5,000.00

Future treatment   10,576.00

Specials  5,314.65

Fox -v- Wood   15,644.34

524,284.99

Less refund of Workers’ Compensation     54,033.00

$470,251.99

I give judgment for the plaintiff against the defendant in the sum of $470,252.00.

Upon the publication of these Reasons counsel for the defendant conceded that the defendant could not oppose an order for costs of the action but made submissions in respect of the issue of the reserved costs associated with a speedy trial application.

The application for speedy trial was made on the 5th September, 1997 at a time when it was alleged the plaintiff was suicidal.  At that time the plaintiff had yet to complete medical examinations arranged by the defendant.  Mr. Justice Ambrose on hearing the application, was not prepared to alter the existing arrangements for those examinations but directed a course of alternate dispute resolution as well as placing the matter on the managed case list.  That having been done, the case was managed by Moynihan SJA.  The case was set down for hearing in Cairns in March, 1998 at a time well in advance of its likely hearing date had the case management followed the normal course.

In these circumstances, although it is correct to say, the application for speedy trial was not successful, it did indeed have the sought after consequence.  I doubt that the hearing could have been held at an earlier date had the speedy trial been ordered in September of 1997.

I regard the application as having been properly made.  I further regard the application as having been, in an informal way, quite effectual.  It was therefore ot necessary for the plaintiff to receive his application after the case management commenced.  Had it been necessary to do so, the plaintiff would have had good prospects of success on the application.  For these reasons the plaintiff should have the costs of that speedy trial application.

My order for costs will be that the defendant pay the plaintiff’s cost, including reserved costs, of and incidental to the action to be taxed.