Gillespie, N.J. v Commonwealth of Australia
[1993] FCA 222
•21 APRIL 1993
Re: NEIL J. GILLESPIE
And: COMMONWEALTH OF AUSTRALIA
No. ACTG58 of 1991
FED No. 222
Number of pages - 10
Negligence
(1993) Aust Torts REports 81-217
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Von Doussa(1) and Higgins(2) JJ
CATCHWORDS
Negligence - Claim for damages - Officer posted to foreign country in connexion with opening of Australian Embassy - Working conditions in foreign country difficult and frustrating - Officer suffering severe anxiety state following panic attack - Employer not aware, and could not reasonably have been aware, of personality factor rendering officer more vulnerable than other officers to harm of the kind suffered - Whether harm of the kind suffered foreseeable - Whether employer discharged duty to take reasonable care for safety of officer - Whether officer discharged onus of establishing that harm would probably have been averted if employer had taken appropriate steps in discharge of its duty of care.
HEARING
CANBERRA, 2 April 1992
#DATE 21:4:1993
Counsel for the appellant : Mr S.L. Walmsley
Solicitors for the appellant: Ken Johnston Bedford and Co.
Counsel for the respondent : Mr M.A. MacGregor QC
and Mr R.E. Williams QC
Solicitor for the respondent: Australian Government
Solicitor
ORDER
The Court orders that
1. The appeal be dismissed.
2. The appellant pay the respondent's costs of and incidental to this appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
NEAVES and VON DOUSSA JJ Neil James Gillespie ("the appellant") has appealed to this Court from a judgment of the Supreme Court of the Australian Capital Territory (Miles CJ) in an action brought by the appellant against the Commonwealth of Australia ("the respondent") for damages in negligence and for breach by the respondent of the contract of employment between them. The Supreme Court entered judgment in the action for the respondent.
At the material time, the appellant was an officer in the Department of Foreign Affairs of the respondent. He had served for a number of years in the Australian Embassy in Argentina (Buenos Aires) where, as the primary judge found, he had demonstrated reliability and dependability in times of stress and a capacity to persevere and exercise initiative in difficult circumstances. He was highly regarded by the then Ambassador. Prior to joining the Department of Foreign Affairs he had seen service in Singapore as a clerk in the Department of the Army where his duties included the engagement of a large number of local staff and accounting and general administrative work.
The appellant's tour of duty in Argentina came to an end in August 1978 and he returned to Canberra. On 30 March 1978 he had expressed interest in a posting to Venezuela (Caracas) where he understood an Embassy was to be opened later that year or early the following year. After his return to Canberra he continued to press for an overseas posting, expressing his preference for South America or South-East Asia.
During the course of 1979, a decision was made to open an Embassy at Caracas. A team of three officers, being the Trade Commissioner in Lima, Peru and an officer from each of the Departments of Foreign Affairs and Administrative Services went to Caracas where a temporary office for the mission was obtained and a lease for permanent office space and a residence for the Ambassador signed.
On 31 July 1979, the appellant was appointed to the position of administrative officer in the Embassy to be opened at Caracas. He arrived at Caracas on 18 October 1979. His task was to set up the administrative structure for the Embassy. This involved the hiring of staff, the opening of bank accounts, assisting in the locating and leasing of residential properties and the clearing of goods that were being sent from Australia for the purposes of the mission.
The appellant experienced a great deal of difficulty in the work he was required to perform. People were abusive, bribes were demanded in order to clear goods from the port or airport and for all sorts of other transactions. There were severe traffic problems, there was difficulty in engaging local staff and, generally speaking, things were totally different from anything he had previously experienced. There was a feeling of a general and continuous threat of violence. Within a few weeks of this arrival, the appellant began to show signs of strain and anxiety.
The appellant's wife and children arrived at Caracas on 14 November 1979. The family moved into a suitable house on 1 December 1979. There were, however, many difficulties to be faced including higher prices than expected and the lack of public recreational facilities. The appellant began to work longer hours and to show increasing signs of anxiety and stress.
Towards the end of February 1980, it was suggested to the appellant that he take a holiday. He arranged to go to the island of Aruba in the Netherlands Antilles, about twenty minutes flight from Caracas. The primary judge described what happened in the following terms:
"He and his family were accompanied by friends from Argentina. It was intended to be a short holiday only, and the (appellant) had arranged for only three days leave. The first couple of days appear to have proceeded without incident. However, on the last day the (appellant) with his family and friends were in a car going back to the hotel after an outing in order to collect their luggage and go on to the airport. The (appellant) who was travelling as a passenger in the front seat had a sudden feeling of claustrophobia and impending suffocation and death. He jumped from the car and broke down. The others had difficulty getting him back into the car. Eventually they got back to the hotel, but the (appellant's) bizarre conduct continued, striking walls and furniture with his fists, striking his head against the wall, pacing up and down and mumbling incoherently. A local doctor was summoned and the (appellant) was given Valium. The stay on Aruba was extended for another few days. The (appellant) recovered his composure but according to his wife was very pale and quiet. On the way back to Caracas he drank whisky from a bottle he had put in his airlines bag."
It appears that the incident in the car when the appellant broke down occurred on 25 February 1980.
After a few days the appellant resumed work on restricted hours and he consulted a psychiatrist, Dr Lila Scott de Vega. His condition was diagnosed as a severe anxiety reaction following, as matter of sequence, a panic attack on Aruba but due to the appellant's personality reacting to the aggressive environment in Caracas.
The appellant continued to work on a part-time basis. He found it difficult to manage outside the Embassy and was unable to lead a normal social life. His psychological problems were aggravated by difficulties with the children settling into school and by a perception that the Public Service cost of living allowance was inadequate. In June 1980, the appellant and his family returned to Canberra. On his return, the appellant went on immediate sick leave. His health continued to deteriorate and he was retired from the Australian Public Service on medical grounds on 30 April 1986.
The primary judge concluded his judgment with the following summary:
"The (respondent), as the (appellant's) employer, was under a duty to take reasonable care for the safety of the (appellant). In considering whether the (respondent) discharged that duty, regard must be had to whether it was reasonably foreseeable that an administrative officer in the Department of Foreign Affairs, like the (appellant), might be subject to some sort of psychological decompensation, beyond the difficulties and stresses to which most officers would ordinarily be prone, in the circumstances which prevailed in Caracas at the time of the (appellant's) service there. In my view, that sort of harm was foreseeable and the discharge of the duty required that any such officer posted to Caracas be given some preparation beyond that which was appropriate to less stressful posts. The (respondent) failed to give the (appellant) the benefit of such preparation. However, in the circumstances, and particularly in view of the remoteness of the possibility that an officer would be subject to such an extreme reaction as that of the (appellant), reasonableness did not require the (respondent) to give more than the most general warning, such as that contained in the Canadian Post report. Reasonableness would also have required the (respondent) to emphasise to the (appellant) what he already knew, namely that coping with the conditions in Caracas would be rendered more difficult by the fact that the post was a new one and not an established one. Reasonableness did not require the (respondent) to repatriate the (appellant) after his arrival at any time sooner than his eventual departure in June 198), nor to give him counselling beyond what he received both before and after the onset of his anxiety state on 25 February 1980, nor (for the purpose of liability for negligence or breach of contract) to pay him an increased allowance. However, the warnings which it would have been reasonable for the (respondent) to give would not, in my view, have been sufficient either to deter the (appellant) from accepting the appointment, nor to so strengthen him psychologically that the anxiety state would have been avoided. The (appellant), in my view, would not have suffered the panic attack or the anxiety state if he had not been predisposed to psychological breakdown by reason of personality factors which were unknown to the (respondent) prior to 25 February 198) and which could not have been known to the (respondent) by the exercise of reasonable care.
Although the anxiety state which immediately followed the panic attack and the panic attack itself were both caused by the
(respondent's) action in posting the (appellant) to Venezuela and committing him to live and work there, and although those conditions constituted damage which would otherwise be compensable, the (appellant's) claim must fail. In my view, there was no breach of the duty of care in tort, nor, if it need be added, the duty in contract."
The reference to the "Canadian Post Report" is a reference to one of a number of documents made available by various foreign embassies in Caracas to officers investigating problems that might be encountered in establishing an Australian Embassy in that city. The Canadian document, being a revised version as at May 1977, dealt more comprehensively than the other documents so made available with living and working conditions in Venezuela and, in particular, at Caracas and drew attention to differences between conditions there and conditions in Canada. The primary judge, referring to the Canadian report, said:
"It mentioned the lack of recreation facilities, the difficulties with water supply, the variable reliability of law enforcement agencies and the like. It warned that 'men who are newcomers may find themselves overwhelmed by a new climate, new job, new language, and all sorts of new problems' and drew attention to the dangers of alcohol abuse. However, it also pointed to some positive aspects of life in Venezuela and taken as a whole would have given no cause for alarm for the health and security of diplomatic personnel."
While accepting that the primary judge had concluded that the respondent was in breach of the duty of care owed by it to the appellant in the respects identified in the passage from his Honour's judgment set out above, counsel for the appellant submitted that his Honour ought to have found that, in order to avoid being in breach of that duty, the respondent should have taken measures additional to those which his Honour considered appropriate. Counsel further submitted that, if the measures considered appropriate by his Honour and the additional measures identified by the appellant had been taken, they would, on the balance of probabilities, have eliminated or minimised the risk of injury of the kind suffered by the appellant.
According to the submission, the respondent should have -
(a) made enquiries additional to those it had made concerning the conditions under which officers would be required to live and work while serving at Caracas;
(b) passed on to the appellant the information in its possession concerning the situation in Venezuela and, in particular, at Caracas, including any information obtained as a result of the further enquiries which the respondent should have made; and
(c) ensured that an adequate cost of living allowance was payable to officers serving in the Embassy at Caracas.
We were referred to a considerable number of documents which had been in the possession of the respondent prior to the appellant's posting to Venezuela and which contained material, in more or less detail, as to the conditions then prevailing at Caracas and from which it might properly be inferred that a person working in that environment would encounter greater difficulties than those likely to be encountered by a person working in either Buenos Aires or Singapore. It would not be a useful exercise to reproduce in these reasons the relevant parts of those documents or, indeed, to endeavour to summarise their contents. A careful reading of them, however, has failed to convince us that the primary judge erred in finding that, in the circumstances, reasonableness did not require the respondent to do more than give the appellant a general warning of the kind contained in the Canadian report to which reference has been made concerning the conditions likely to be encountered in Venezuela. In reaching that conclusion we have, of course, taken into account that the appellant did not contend that the respondent was aware, or should have been aware, of the personality factor that made him more vulnerable than other officers in the respondent's service to the kind of harm that he in fact suffered.
Equally, it has not been established that the primary judge erred in failing to find that the respondent should have made further enquiries into conditions at Caracas and acquainted the appellant of the results of those inquiries. Further, the evidence does not, in our opinion, establish any negligence on the part of the respondent in determining the level of the cost of living allowance to be paid to officers serving at the Embassy at Caracas. The fact that the allowance was, in the light of experience, found to be inadequate and was subsequently increased, albeit after the appellant's period of service at Caracas had come to an end, whether considered alone or in combination with the other matters relied on by the appellant, does not establish the case which the appellant sought to make.
The crucial question in the appeal is whether the primary judge erred in concluding that the appellant had failed to discharge the onus of showing that, had the respondent given the kind of warning which his Honour considered it would have been reasonable to give, the harm which the appellant suffered would probably have been averted. In relation to this aspect of the matter, the primary judge said:
"My conclusions are that even if the (appellant) had been told or 'warned' prior to his departure for Venezuela of the conditions he was likely to face there, that would not have deterred him from taking up the post. His enthusiasm to get back to Latin America was far too strong and deep-rooted for that. Indeed, the evidence of Dr Milton, which I accept, expressed a clear view that the more dissuasive the advice, the more determined the (appellant) would have been to take up the challenge of the post for which the
(appellant), like the (respondent), considered himself so well suited. The other psychiatric evidence is consistent with that conclusion. Indeed, if it had been suggested to the (appellant) by the Commonwealth that the conditions were such that he might not be able to handle them for fear of a psychological breakdown, one would expect that his reaction would have been one of outrage, and understandably so. To a certain extent similar factors apply with regard to the suggestion that he should have received counselling after his arrival in Venezuela. It is by no means probable that the (appellant) would have accepted such counselling if it had been suggested or that it would have been effective if accepted. Nor, in my view, has it been shown that the payment of an extra cost of living allowance was likely to head off the breakdown to which the (appellant) eventually succumbed."
In support of the submission that the measures which the respondent should have taken would, if taken, have probably averted the harm which the appellant suffered, counsel for the appellant relied heavily upon the evidence given by Dr Lila Scott de Vega. Dr de Vega was the consultant psychiatrist practising at Caracas who saw the appellant for the first time shortly after he returned to that city after experiencing the panic attack on 25 February 1980 and periodically thereafter until the appellant left to return to Australia. Dr de Vega had supplied two reports dated respectively 6 June 1980 and 10 September 1990 and during the hearing before the Supreme Court she answered questions put to her by counsel for the parties over an international telephone link.
In her report dated 10 September 1990, Dr de Vega said of the appellant -
"His personality was rigid and controlling. He demonstrated a strong need to have everything under his control both in the therapeutic setting and at work. Anything new or any suggestion in treatment, whether medicine or explanations as to what might work more effectively with Venezuelans was resisted, tending to be seen as an imposition. He had to be persuaded and treated with patience.
In relation to his environment, Venezuela is a country in which the attitude is informal and promises are easily made but not readily kept. He had clashes with the customs officials who were waiting for their 'tip' or were uncooperative and unimpressed by his diplomatic role. His reaction to them was to expect them to function with his values and to become angry and clumsily accusatory when they failed to comply with accords that they had made. His task at that time of setting up the infrastructure of the Embassy was new to him. It implied negotiating agreements and counting on the word and efficiency of many local people. When they did not fulfill (sic) his expectations or meet the terms of their agreement he would become angry and abusive in his indignation. Such an attitude on his part made for aggressions and tensions on their part and made them even more unreliable. ....
He was given explanations and instructions in regard to the Venezuelan culture and how he might better handle their way of understanding things.
In spite of the interventions, his level of anxiety continued to be very high and he was functioning marginally. He had trouble getting himself to work and was not being effective in getting his job done. With his permission I talked to the Ambassador and suggested his repatriation for further evaluation and treatment in Australia. I hoped that with less pressure he would recompensate and would be in a better position to return to his normal level of functioning more quickly. I wrote a letter describing his condition and recommending a less demanding environment to reduce the stress and help him to re-compensate."
....
It has been my experience that those who are rigid and controlling are more affected by any new situation and are particularly affected by Venezuela because here people tend to be disorganized and casual in the fulfillment (sic) of committments (sic). Trying to work on schedule and to achieve what has been planned can be very frustrating. Mr Gillesipie (sic) was having to do this to get the Embassy set up on schedule. Venezuelans when they feel criticised or depreciated can be very aggressive in return. Mr Gillesipie (sic) did not know how to deal with them and often provoked further aggressions."
Dr de Vega gave the following oral evidence:
"Q. Doctor, assuming a man with the personality traits that you noted in Mr Gillespie encountered for the first time the problems of the magnitude that he described to you, and assume further that he had received no relevant warning, training or period of adjustment to cope with them, what in your professional view would you expect to happen to such a man faced with such a condition in light of that lack of familiarization?
A. Okay. We have a category of diagnosis which has to do with an adjustment disorder. I would expect someone who once had a rigid personality, who was tending to be very confronting and aggressive in his own imposition functioning with a timeframe and having to deal with low level employees in Venezuela, where demands would not be met, where a whole different kind of system of motivation is in force, that the person would have a tendency, a very strong tendency, to decompensate or fail to be able to cope effectively and would have probably an adjustment disorder with an anxious mood. That would be highly, let us say, not absolutely inevitable but it would certainly be a high risk, not just because of the environment, if you sent him to Switzerland he might have done all right but sending him to Venezuela was a combination of what his particular personality disorder was and what provoked him into the greatest degree of difficulty and he was unprepared to deal with or know what techniques to use in order to deal with this. This was a triple series of contributing factors that I believed decompensated him.
Q. Doctor, you added to his lack of preparation the fact that there were insufficient allowances of a financial kind to permit him to operate comfortably and add further to that difficulties with regard to providing basic sporting and recreational facilities for his family and add problems of personal security, would that make the decompensation in this sort of a person more likely?
A. Yes. All of those factors pushed towards a decompensation and since there was an accumulation of them, certainly they are all pushing in that direction. I am not saying that if he had had recreational facilities et cetera that he would not have been decompensated but he had really no place to go off or to simply discharge some of his aggression, some of his frustration and just relax with his family, so that there was another minor factor but contributing in the direction of making more likely his failure. Q. Doctor, if such a person had been warned of what to expect, trained with regard to it, prepared for what was there and allowed to acclimatise on arrival, would you have expected a different outcome?
A. It would have had more chance definitely of a different outcome. He would still have had to struggle with the rigidity of his own personality but he would certainly have had instruments and have had some support that would have all improved his chances of not going into a decompensation. Q. Doctor, if he had been counselled once he arrived there and countered the matters we have been discussing might you have expected a different outcome?
A. I would have expected that the probability of a different outcome would have increased, that is he would have had a better chance of adapting."
Later, Dr de Vega was asked were there any ways available in which the attack or anxiety reaction might have been avoided. She gave the following answer:
"Well, I would think that there are two ways of avoiding a reaction of this sort. One would have been in the process of selection. If he had been detected as having a rigid personality or if he had been detected as having a higher than usual level of anxiety or if he had been detected as not handling aggressive emotions in a particularly constructive manner, then he might have been selected out for assignment to an overseas post where aggression in the environment can be a problem. So one thing would be selection and the other thing would be some kind of prior preparation in order to help him to understand, anticipate and have a plan of action for what he would be exposed to."
In relation to Dr de Vega's evidence, the primary judge said -
"When asked by counsel for the (appellant) the ways available to avoid an anxiety reaction, Dr de Vega said there were two ways, the first being a system of detection of persons with vulnerable personalities who should simply not be posted to an aggressive environment, and the other would be 'some kind of prior preparation in order to help him to understand, anticipate and have a plan of action for what he would be exposed to'. In my view, taking Dr de Vega's evidence as a whole, the answer to the last question should not be taken too literally. It is clear that Dr de Vega meant that a person with a predisposed personality who was given a course of preparation before the posting to Caracas would have been in a better position to withstand the stresses of the environment there, not that an anxiety state would necessarily or even probably have been avoided."
Earlier in his judgment, his Honour, speaking of the evidence given by Dr de Vega, had observed that her evidence on the question of preparing the appellant for the posting to Venezuela was not of great assistance and was vague as to the details of what such preparation entailed. It must also be said that Dr de Vega did not refer, either in her reports or in her oral evidence, to the question whether the appellant would have taken advantage of the preparatory measures of which she was speaking or would have heeded any warning of the kind to which his Honour referred that might have been given to him.
Counsel for the appellant submitted that his Honour had mistaken the purport of Dr de Vega's evidence and that her evidence, when considered as a whole, supported the conclusion that the appellant had discharged the onus of establishing that, if the respondent had provided him with an adequate briefing about what to expect when he took up duty in the Embassy at Caracas and how to deal with the local population, the risk of the injury he in fact suffered would have been avoided. We are unable to accept that submission. In our opinion, the primary judge, in the passage cited, correctly evaluated the evidence given by Dr de Vega.
Counsel for the appellant was also critical of the reliance that the primary judge placed on the evidence of Dr Rod Milton, also a consultant psychiatrist, and, in particular, on his evidence to the effect that, the more dissuasive the advice, the more determined the appellant would have been to take up the challenge of the posting to Venezuela. In view of that submission, it is appropriate to refer to certain parts of Dr Milton's evidence to which counsel for the appellant drew our attention.
In a lengthy report dated 16 September 1990 Dr Milton expressed the opinion that the appellant's personality was likely to predispose him to developing an emotional disorder. That opinion was confirmed in a further lengthy report dated 12 December 1990 prepared after seeing the appellant in his consulting rooms. Dr Milton gave oral evidence and, in the course of cross-examination by counsel for the appellant, the following evidence was given:
"Q. Doctor, it is well known in psychiatry, I suggest to you, that exposure to hostile difficult and foreign situations can cause stress in people that are so exposed? A. Yes, that is an interest of mine in that area. Q. And if a person with a predisposition towards decompensation is exposed to such conditions then he is more likely to decompensate than a person without predisposing factors? A. Yes.
Q. Doctor, is it, in your view, possible to minimise the effects of exposure to such circumstances as I put to you by allowing the person who is to be exposed to them a period to adjust to those conditions?
A. It is possible but there is a difficulty with doing that because the very personality who is some times vulnerable to such things would be the very one to go out and try to grapple with them in order to prove to himself that he can. So if you say to some, 'Look we are going to get you to take it easy for two weeks or something like that' they usually do not go along with you.
Q. What about a course of instruction as to the type of circumstances that one is likely to encounter? A. I would like to speak to that, I would like to give you an example. I am consultant to the air force and in fact, am in charge of reservists in New South Wales. And yesterday I was asked to go up to Richmond to lecture to medical people who were standing by for the current conflict in the Middle East. Now, the pilots were asked if they would like to go to the same lecture. They said, 'No, we know it all.' Now, I think, that is one of the difficulties with giving courses of instruction that the very people who need them are often those who most resist.
Q. And that is a matter that is well known and recognised in your field of endeavour, is that so?
A. I do not know how widely it is known to psychiatrists in general, it is certainly known to me.
Q. But if one is required to attend courses of instruction where aspects of hostile difficult and foreign environments are fully explained then the recipient of that information is going to be able to deal with those matters more readily, is he not?
A. I think it is common sense and good training to give such a course of lectures. The impact on the person is very unpredictable.
Q. Yes, it may vary of course depending on the person who received the information?
A. Yes.
Q. But it would be good practice, would you not agree, if you were sending somebody into such circumstances to provide the means of familiarising them with the circumstances they were likely to encounter before they went?
A. Yes, although with specific application to Mr Gillespie, he had already had experience of that kind of culture beforehand."
While Dr Milton accepted the suggestion made to him that, speaking generally, it would be good practice on the part of an employing authority to give an appropriate briefing to a person who was to take up a position in a foreign country with a culture substantially different from that to which the person had previously been exposed, he gave no support to the proposition advanced by counsel for the appellant that to have given such a briefing to the appellant would, on the balance of probabilities, have averted the injury which he suffered. Indeed, his evidence was to the contrary. It was evidence which the primary judge was entitled to accept and act upon and, being accepted, it clearly supported the conclusion to which he came. No sufficient reason has been advanced to show that his Honour fell into error in doing so. It must also be said that the conclusion reached by the primary judge was based, at least in part, on his own assessment of the appellant, having had the opportunity, denied to this Court, of observing him in the witness box during the course of the trial. That circumstance provides an additional ground militating against this Court interfering with the conclusion reached by the primary judge.
For these reasons, we are of opinion that the appeal should be dismissed with costs.
JUDGE2
HIGGINS J This is an appeal from a judgment of Miles CJ handed down in the Supreme Court of the Australian Capital Territory on 13 September 1991. The facts of the matter are set out extensively in the judgment of his Honour. It is unnecessary to repeat them.
In essence, the appellant claimed to have suffered psychological damage as a result of his posting to Caracas, Venezuela. He was, during that posting, an administrativeofficer employed by the respondent in the Department of Foreign Affairs and Trade.
The posting involved participation in the establishment for the first time, of a diplomatic mission to Venezuela. There was no doubt that conditions there were difficult and stressful.
The issue in the case was whether the appellant had established that the respondent should have foreseen and hence, by the exercise of reasonable care, have avoided the harm the appellant suffered.
Before his posting to Caracas, the appellant had performed diplomatic duties elsewhere in the world, including South America, without any apparent harm from stress, anxiety or otherwise.
He undoutedly did show signs of stress and anxiety whilst he was serving in Venezuela. As soon as those symptoms became apparent, the appellant's superior, Mr Tony Usback, suggested he take time off for a holiday.
Unfortunately, this suggestion, although accepted by the appellant, did not improve matters.
He was referred to a Dr de Vega in Caracas. Dr de Vega is a psychiatrist. She was a Canadian married to a Venezuelan and so well qualified to understand the appellant's situation.
The treatment she undertook of the appellant was unsuccessful. He became and has remained unfit for full-time work. It seems to have been accepted that this most unfortunate result flowed from the stress and anxiety he suffered during the Caracas posting.
The decision of the learned trial judge turned, not on any dispute about what was done or omitted to be done by the parties, but on whether the respondent, by its employees and agents, had acted reasonably in performance of its undoubted duty to take care for the appellant's health and safety.
The assessment of the reasonableness of the respondent's conduct was, as his Honour the Chief Justice noted, a "value judgment". Whilst this Court, on appeal, will accord great respect to the views of a trial judge, particularly a judge as experienced as the learned Chief Justice, it is free to substitute its own judgment if it considers that it should do so (see Warren v Coombes (1979) 142 CLR 531).
The test to be applied is referred to by the learned Chief Justice in his judgment. The appellant does not assert that the wrong test was propounded (see, for example, The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40, 47-8).
The medical evidence does disclose that the appellant's personality predisposed him to the harm in fact suffered by him. However, his Honour concluded that there was no reason for the respondent to have known that. The various routine medical examinations of the appellant prior to his posting did not reveal that he was at any risk over and above any other diplomatic officer.
Having reviewed the findings made by the learned Chief Justice and the material on which it was based, that conclusion seems inevitable. There are certainly no grounds to disturb it.
The appellant sought to rely, in essence, on the opinion of Dr de Vega. It was her opinion that conditions in Venezuela were such that there was a risk that persons from other cultures who were posted to work there might suffer psychological breakdown unless properly prepared for conditions in Venezuela.
Dr de Vega would have recommended a more intensive preparation for all employees to be posted to Venezuela.
In her evidence, she noted as follows:-
"I understood from him that he had not really been given information about what to expect or how to handle it; that he really did not understand how to handle these things nor did he really know that he was not prepared to have to deal with it."
She referred also to having "prepared",
"... some people who worked with the US Embassy ten years ago ..."
As well, she mentioned some people in private employment who had been given such preparatory counselling. If such counselling had been given to the appellant, Dr de Vega considered,
"It would have had more chance definitely of a different outcome. He would still have had to struggle with the rigidity of his own personality but he would certainly have had instruments and have had some support that would have improved his chances of not going into a decompensation ..."
Dr de Vega agreed that there was nothing in the appellant's previous history, before his posting to Venezuela, which would or should have led his employer to consider that he was more at risk than any other employee.
She was asked for her opinion as to how the harm suffered by the appellant could have been avoided. She said,
"Well, I would think that there are two ways of avoiding a reaction of this sort. One would have been in the process of selection. If he had been detected as having a rigid personality or if he had been detected as having a higher than usual level of anxiety or if he had been detected as not handling aggressive emotions in a particularly constructive manner, then he might have been selected out for assignment to an overseas post where aggression in the environment can be a problem. So one thing would be selection and the other thing would be some kind of prior preparation in order to help him to understand, anticipate and have a plan of action for what he would be exposed to."
It was submitted that his Honour misconstrued Dr de Vega's evidence when he said,
"It is clear that Dr de Vega meant that a person with a predisposed personality who was given a course of preparation before the posting to Caracas would have been in a better position to withstand the stresses of the environment there, not that an anxiety state would necessarily or even probably have been avoided."
I do not accept that submission.
The passages I have cited from the evidence of Dr de Vega seem to me to indicate that his Honour understood Dr de Vega's evidence quite accurately.
Whether or not it was the appellant's case that he should not have been sent to Venezuela at all, his Honour was quite entitled to consider that option. Dr de Vega had referred to it. His Honour was right to reject it. The evidence, including that of Dr Milton, another psychiatrist, clearly supported the conclusion that not sending the appellant to Venezuela at all was not a reasonable option.
The only reasonable alternative which could have been adopted was the preparatory counselling Dr de Vega referred to.
As to that aspect, his Honour did conclude in the appellant's favour that the respondent knew or ought to have known that conditions in Caracas were particularly difficult and more so than had been experienced by the appellant in any previous posting.
His Honour found, therefore,
"...With the information available to the defendant on those matters (that is, conditions in Caracas), I think reasonableness required that the plaintiff be told something of the difficulties. That would have involved a relatively simple and inexpensive briefing, whether oral or written, by another officer, of whom there must have been several, who had knowledge of what was contained in the defendant's files about conditions already experienced in preparing to set up a new post in Caracas."
There was nothing before his Honour to enable him to conclude whether such a briefing would be identical with the form of preparation Dr de Vega would have recommended. Nevertheless, his Honour does seem to have assumed in the appellant's favour that the briefing he referred to would have served a similar function.
I see no reason to criticise or disturb his Honour's conclusion in that respect.
His Honour did not consider it would have been helpful to dump all previous reports concerning Venezuela onto the appellant's desk and let him sort them out. If that was a submission from the appellant's counsel, it was rightly rejected. The views of one ambassador concerning his personal distaste for Caracas were, in my view correctly, also regarded by his Honour as unhelpful.
That did not mean, of course, that a briefing such as his Honour did contemplate would not have been expected to draw information from the reports and documents referred to. Indeed, I do not read his Honour's remarks as implying otherwise.
In support of that interpretation I note that, in his reasons for judgment, his Honour said,
"... it was the failure to convey the message (as to the difficulties in Caracas) and not the omission to supply the source material which was unreasonable."
The real question his Honour had then to decide was the more difficult question as to whether, had the plaintiff been properly briefed, the harm to him would have been prevented.
The appellant had the benefit of a finding that some harm was foreseeable unless there was a briefing of the kind Dr de Vega considered appropriate. It was a practicable measure which, if taken, would have lessened the risk of harm to the class of persons to which the appellant belonged. (See Dixon v Cementation Company Ltd (1960) 1 WLR 746; Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362; Turner v State of South Australia (1982) 56 ALJR 839; 42 ALR 669; McLean v Tedman (1984) 155 CLR 306; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 30; Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611.)
The appellant failed, however, to convince his Honour that such a briefing would have avoided or minimised the risk of the harm to him which ensued.
There is an onus on an appellant in a case such as the present one to satisfy the tribunal of fact that, but for the absence of reasonable precautions, the appellant would not have suffered the damage complained of. The case McWilliams v Sir William Arrol and Co Ltd (1962) 1 WLR 295 is illustrative of the point. In that case there was a failure to provide a safety belt whilst the deceased was working at a considerable height. The tribunal of fact concluded that whatever the employer did, the deceased would not have worn the belt. As a result of that finding the claim brought in respect of his death failed.
Vozza v Tooth and Co Ltd (1964) 112 CLR 316 is also, to some extent, analogous. In that matter there was a risk to workers of injury from bursting bottles on an assembly line. The injuries were usually superficial. However, the plaintiff suffered a deep cut, lost time from work and developed a psychological disorder as a result. It was contended by the plaintiff that a different conveyer system or better gloves should have been substituted to eliminate or reduce the perceived risk of injury. The first precaution was rejected. It was not shown that such a system was reasonably available. The second contention was also rejected. It was not shown that any better glove would both have reduced risk of injury and been practicable. Windeyer J therefore concluded that the plaintiff failed.
In the present case, Miles CJ did have evidence that briefings of the kind envisaged would reduce the risk of decompensation with difficult postings. He did find that such briefings were practicable. Vozza v Tooth and Co Ltd (supra), accordingly does not provide the guidance necessary to determine the issue raised on this appeal. All that the principles discussed in that case determine is that it was open to his Honour to have found that the respondent's negligent omission caused the damage complained of by the appellant.
The more recent case of Trevali Pty Ltd (trading as Campbelltown Roller Rink) v Haddad (1989) Aust Torts Reports 80-286 illustrates the point. The plaintiff, a beginner, attended a roller skating rink operated by the defendant. She was ordered out of a beginners' rink into the general area. Whilst in that area, she was struck by another skater and fell heavily. Her wrist was fractured. It was contended by the plaintiff that there were insufficient numbers of supervisors present. The defendant argued that, even if the number of supervisors was insufficient, having a greater number would not have prevented the injury. Meagher JA (with whom Priestley JA concurred) regarded both the exclusion from the beginners' rink where there were no potential assailants and the lack of supervision as causally connected to the plaintiff's fall.
As to the submission that the greater number of supervisors, if provided, would have made no difference, Meagher JA noted,
(69,035-6) "... if, as seems more than likely, the plaintiff was deliberately pushed, no amount of supervision could have prevented her from falling and sustaining injury. On the evidence, however, I think this is not the correct way of viewing the matter. There was evidence that unseemly behaviour in the larger area was not unknown to the management and from time to time was effectively dealt with by warning off any miscreants. In this circumstance, I am disposed to accept Mr Crittle's argument for the respondent that the observed presence of law-enforcing supervisors would on the balance of probabilities have dissuaded her assailant from pushing her in the first place."
In Trevali Pty Ltd v Haddad it can be observed that there was no reason to suppose that the beneficial effect of the greater supervision would not apply to the plaintiff. Had there been a conclusion that although the risk would have been lessened for others, it would not have been lessened for the plaintiff, the result would have been different.
At pp 53-4, his Honour makes the assessment that the appellant would not have been deterred from taking the Caracas posting by any amount of warning or advice as to the conditions there. The next question was whether the actual risk to the appellant of psychological break-down would have been lessened by any such preparatory briefings warning or advising him about conditions in Venezuela.
His Honour's conclusion as to that aspect of the matter was expressed in the following terms,
(54) "It is by no means probable that the plaintiff would have accepted such counselling if it had been suggested or that it would have been effective if accepted."
Of course, the respondent could have insisted on the appellant's attendance for counselling. However, his Honour's opinion amounts to a finding that he was not satisfied that such counselling, even if accepted by the appellant, would have prevented the harm suffered by him.
That was an assessment his Honour based, it seems to (me), on two factors. The first was his own assessment of the plaintiff as a person. The second was his assessment of the psychiatric evidence, particularly that of Dr Milton.
Dr Milton had assessed the appellant as having a somewhat fragile personality. It was, he considered, an underlying neurotic personality, hypersensitive to criticism, embarrassed by failure and self-doubting. He accepted that the experiences undergone by the appellant in the course of the Venezuelan posting aggravated that underlying condition. He also assessed the appellant as being unlikely to reveal, or be assessed as having, that susceptible personality.
The appellant's counsel touched on the efficacy of pre-posting briefings in cross-examining Dr Milton. I will refer only to the relevant parts,
"- What about a course of instruction as to the type of circumstances that one is likely to encounter? - - - ...The very people who need them are often those who most resist.
- But if one is required to attend courses of instruction where aspects of hostile difficult and foreign environments are fully explained then the recipient of that information is going to be able to deal with those matters more readily, is he not? - - - (objection - question allowed) - I think it is commonsense and good training to give such a course of lectures. The impact on the person is very unpredictable... - But it would be good practice, would you not agree, if you were sending someone in that - into such circumstances to provide the means of familiarising them with the circumstances they were likely to encounter before they went? - - - (objection - question allowed) - Yes, although with specific application to Mr Gillespie, he had already had experience of that kind of culture before."
The medical evidence including that of Dr de Vega as well as that of Dr Milton left it very much open as to whether the sort of briefing both Dr de Vega and Dr Milton saw as desirable would have spared this appellant from the harm he suffered even if it would, generally speaking, have been efficacious for others.
The final determining factor, therefore, had to have been the assessment of the appellant as a man by the learned trial judge. It was open to his Honour to conclude that the appellant would not have benefitted from any briefing, that he would have reacted just as adversely to the conditions in Caracas whether he knew what to expect or whether he did not. In that respect, the case was one where his Honour had the advantage of seeing and hearing the appellant. This Court should therefore be slow to interfere with his Honour's conclusions (see Abalos v Postal Commission (1990) 171 CLR 167).
I see no grounds for disagreeing with the conclusion the learned Chief Justice came to as to the probable effect of a proper briefing process on this appellant. I would dismiss the appeal with costs.
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