Govier v Unitingcare Community
[2016] QDC 56
•18 March 2016
DISTRICT COURT OF QUEENSLAND
CITATION:
Govier v Unitingcare Community [2016] QDC 56
PARTIES:
TONI MAREE GOVIER
(plaintiff)v
UNITINGCARE COMMUNITY (ABN 28 728 322 186)
(defendant)FILE NO/S:
BD 950/14
DIVISION:
Civil
PROCEEDING:
Civil Trial
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
18 March 2016
DELIVERED AT:
Brisbane
HEARING DATE:
17 and 18 August, 16, 17 November, written submissions to 10 December 2015.
JUDGE:
Andrews SC DCJ
ORDER:
The plaintiff’s claim is dismissed
CATCHWORDS:
EMPLOYMENT LAW – injury to employee – psychiatric injury – employee violently assaulted – employee sustained physical and psychiatric injuries from the assault – employer’s investigation of employee’s conduct in connection with the assault – where two letters from employer to employee in connection with the investigation aggravated the psychiatric injury – whether duty of care in respect of the content and timing of the letters.
Industrial Relations Act 1999 Qld section 83
Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336 at 362 considered.
Hegarty v Queensland Ambulance Service [2007] QCA 366 at [49] followed.
New South Wales v Rogerson [2007] NSWCA 346 considered.
O’Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 considered.
State of New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371 followed.
Palmer & Ors v State of Queensland [2015] QDC 63 at [124] followed.
Woolworths Limited v Perrins [2015] QCA 207 at [66] followed.
COUNSEL:
W D P Campbell for the plaintiff
Morton for the defendant
SOLICITORS:
Kevin Bradley Solicitors for the plaintiff
McInnes Wilson Lawyers for the defendant
Issues
The plaintiff was attacked and beaten by a co-worker. During the attack she feared she would die. She suffered physical and psychiatric injuries. She escaped by car and was hospitalised.
While hospitalised, the plaintiff’s employer, the defendant, instructed her to attend an “investigation interview” next day, directed her not to discuss the incident with any other employee, directed her not to enter any work sites and stood her down on full pay. The plaintiff was too ill to attend the interview the next day or the rescheduled meeting several days later. Two weeks later the employer advised her that she had refused to attend the meetings and that the defendant had made preliminary findings that the plaintiff had engaged in violent, inappropriate behaviour; that the plaintiff’s employment could not be continued; that her behaviour reflected poorly upon her; that she had made unnecessary physical contact with the co-worker; that the author was very disappointed and that she had five days to provide written explanation with reasons why her employment should not be terminated. The plaintiff suffered a chronic post-traumatic stress disorder and a major depressive disorder. The timing, manner and content of the defendant’s letters caused a sense of injustice and betrayal in the plaintiff and aggravated her psychiatric injuries.
The first issue is whether the employer breached its duty to the plaintiff by rostering the plaintiff and the co-worker so that they met at change of shift. Resolution of that issue raised factual issues: whether the plaintiff had told her supervisor of four specific incidents during which the co-worker had arguably assaulted and physically obstructed the plaintiff; (She had not told her supervisor.) whether the plaintiff had given her supervisor a letter expressing her concerns about the co-worker and asking that she and the co-worker be kept apart, or whether a copy of the letter in the plaintiff’s possession is a fraudulent concoction; (She had given a copy to her supervisor.) whether from that letter and oral complaints to the employer the risk of either a physical assault or a psychiatric injury was reasonably foreseeable before the assault; (They were not.) on the alternate hypothesis that a risk of psychiatric injury was foreseeable before the assault, did the defendant breach its duty to take reasonable care by failing to counsel or reprimand the co-worker; (No.) or by failing to ensure that the co-worker did not meet at changes of shift; (No) on the hypotheses that the employer had a duty of care to prevent psychiatric injury and breached its duty, was there a break in the chain of causation because the co-worker finished her shift, departed and returned before assaulting the plaintiff? (No)
The second issue is whether the employer’s insensitive first letter and critical second letter to the plaintiff after her injury involved a breach of duty. Resolution of that issue raised factual and legal issues. The factual issues were whether the letters caused injury; (They did.) whether the injury was reasonably foreseeable (It was.) whether by the timing and content of the two letters the employer failed to take reasonable care for the plaintiff; (It did.) The legal issue is whether, in spite of that failure to take reasonable care by the timing and content of the two letters, no employer’s duty arose to take reasonable care for the plaintiff’s psychiatric health in the timing of and the content of those two letters. (No duty arose.)
The third issue is to determine quantum of loss where it has two causes: the assault and the timing and content of the letters.
The plaintiff’s presentation as a witness
The plaintiff saw the psychiatrist Dr Curson eighteen times between 20 June 2011 and 29 January 2015, for interview. Doctor Curson described the plaintiff:[1]
She presents as extremely anxious and low in mood. At times Mrs. Govier dissociates. She appears to be in a trance-like state and has to be brought back to the interview. As a result of this she often loses the thread of the conversation and appears frequently distracted and preoccupied. There is no apparent evidence of psychotic symptoms and she has reasonable insight and judgement.
[1]Exhibit 8, report Doctor Curson 11. 12. 14 at page 4.
The plaintiff gave evidence over four days. Her presentation while giving evidence was unusual. Her presentation when giving evidence on 17 August 2015 was of a person extremely anxious, low in mood and apparently distracted. She presented similarly while giving evidence on 16 November 2015. On 17 November 2015 she appeared slightly improved in the morning and further improved in the afternoon. She was much the same on 18 November 2015 as she had been in the afternoon of 17 November 2015. Occasionally the plaintiff’s evidence was inconsistent with her earlier evidence,with particulars or with what I infer to have been her earlier instructions. Such inconsistencies are often used by courts when assessing honesty or reliability. Drawing inferences about honesty or reliability because of altered instructions and inconsistencies is complicated by the plaintiff’s condition. I infer that the condition recognised by Dr Curson and which was apparent even during this trial would have affected the way the plaintiff gave instructions. Instructions from the plaintiff to her solicitor may not have been as complete as they would have been if she had not been affected by the condition. The plaintiff’s condition may have affected her capacity to appreciate and respond to questions put to her in court. It provides a possible explanation for inconsistencies in her evidence particulars and instructions. I am less inclined to find that inconsistency was caused by lack of honesty and more inclined to attribute it to innocent unreliability. Notwithstanding that, the plaintiff retains the forensic disadvantage that she has the onus of proof.
The plaintiff added four late particulars of the defendant’s knowledge of MD’s aggressive behaviour
The plaintiff’s particulars changed on the important issue of whether the employer had knowledge of the risk of a physical assault by MD. The plaintiff alleged that at all material times the defendant knew MD to behave in the workplace in an erratic, unpredictable, hostile, aggressive and confrontational manner towards other employees, including the plaintiff.[2] Particulars initially pleaded of the defendant’s knowledge of MD’s behaviour probably reflected the plaintiff’s instructions given to her lawyers to the date of pleading. The particulars were pleaded as “not limited to” but including various matters.
[2]ASOC para 1(g).
It was initially pleaded for her that particulars of the complaints and the behaviour are in a letter handed by the plaintiff to her supervisor, Mr Blackett on 20 October 2009. A copy of the letter allegedly handed over is exhibit 4.
On the first day of the plaintiff’s evidence on 17 August 2015, she gave evidence of four matters which were not the subject of earlier particulars and which received no express mention in the letter exhibit 4. If accepted, they are, arguably, more significant sources of the defendant’s knowledge of MD’s propensity for physical assault. I will call them the four fresh complaints. After evidence of them emerged at trial, the plaintiff included particulars of them in an amended statement of claim.[3]
[3]ASOC filed 17 September 2015 at para 1 (g) (i) A to D.
I refer to exhibit 4 to reveal what complaints about MD’s behaviour were initially particularised to have been made between August and 14 October 2009. The plaintiff wrote in the letter, exhibit 4:
· “As I have already explained to you previously, I do not wish to work with or near the staff member known as (MD). I do not wish to have any contact with this person. I do not wish to be placed in a position where I may cross paths with her during a shift changeover…”;
· “As I told you previously I am struggling to understand (MD’s) behaviour toward me”;
· “I wish to request not to work with or near her because her behaviour frightens me”;
· “I feel my presence antagonises (MD) and I feel she looks for fault in everything I do … She has a problem with me”;
· “As you are aware whilst working with (MD) on numerous occasions she has made personal comments in the staff communication book about my character and work performance”;
· “She has taken action to belittle me, made physical changes to my work and misrepresent (sic) me to other staff”;
· “Over the past few months I have been … harassed by (MD) in my workplace”;
· “I have tried to communicate my concerns about her behaviour with you”;
· “I requested information regarding the correct procedure I should follow to make a formal complaint and 10/12/09 you emailed a copy of ‘complaints management procedure policy’ form”;
· “I requested to have a meeting with (MD) in your presence to try and resolve any issues she had with me”;
· “At the first meeting held at the office on 14/10/09 I tried to communicate with her and attempt to discuss and/or resolve any issues she had with me or my work. I did this by asking about her remarks in the staff communication book. As you observed during this meeting she became hostile toward me, twisted my words and made false accusations about me”;
· “At one point you suggested to (MD) there may be a communication problem due to language barriers. I then tried to explain that I was born and raised in a foreign country and was aware of the barriers that could arise between varying cultures and differing languages and that if this was … the problem … I was open to finding ways we could overcome this … suddenly (MD) became angry, raised her voice, started pointing her finger at me and then said, ‘You have a problem with people who are born in another country,’ and accused me of being prejudice”(sic);
· “I … felt incredibly disturbed by the way (MD) twisted the meaning of my words and quickly flew into a rage”;
· “I felt so frightened and shocked I stood up and walked out of the room without saying a word”;
· At the following meeting at the client’s premises “you stated in front of another staff member (Toni Crepin) ‘I believe (MD) has a very serious mental health problem’ I found your words quite alarming. After stating this you put both hands over your face and moaned and said ‘oh, I don’t know how we’re going to deal with this’, ‘this is a big problem’. The other staff member present asked what had happened and you gave a brief explanation and then you said you didn’t know what could be done about it”;
· The plaintiff wrote that she brought to Blackett’s attention (MD’s) written comments;
· “It is glaringly obvious to the me that (MD) has a problem with me and simply does not like me”;
· “I perceive (MD’s) behaviour toward me as aggressive, unpredictable and even narcissistic”;
· “I find (MD’s behaviour) puzzling, frustrating, I’m second guessing my every move at work wondering if she will have a problem with it”;
· (MD) “scares the hell out of me and I just don’t want to be around her”;
· “A staff member disclosed to me that (MD) had been creating tension among staff in another client home … (and said) ‘it looks like you have become (MD’s) new victim’; and
· “It is because of my experiences with (MD), your comments regarding (MD’s) level of mental health and feedback from other staff that I am frightened of her and do not wish to come in contact with her.”
One can see that the letter’s accusations concern, almost exclusively, emotional aggression. The only physical aggression expressly mentioned was finger pointing with a raised voice during a meeting with Mr Blackett present.
The four fresh complaints, by contrast, were not of matters written by MD in books and were more aberrant forms of physical aggression than finger pointing and a raised voice. In summary, the four trial complaints were of a broom handle push to the back, a hand push to the breast, a grabbing of the wrists and a jumping in front of the plaintiff to block her path.
Facts
The defendant is and was at all material times an unincorporated legal entity capable of being sued. It traded as “Lifeline Community Care Queensland” from premises at 16 East Street, Ipswich (“the Ipswich office”).
The plaintiff was employed by the defendant as a disability worker at the Ipswich office. From in or about August 2009, the plaintiff was charged with the care of the defendant’s client, Tara, at Tara’s premises at Yamanto in Queensland. The parties agreed that I should refer to the client as Tara, to attempt to maintain her anonymity.
Pursuant to the definitions in the Workplace Health and Safety Act 1995, as amended:
1. the plaintiff was a “worker” pursuant to s 11;
2. the defendant was an “employer” pursuant to s 10;
3. the client’s premises were a “workplace” pursuant to s 9; and
4. the Risk Management Code of Practice 2007 was a “code of practice” pursuant to the Workplace Health and Safety Act 1995.
The defendant also employed, at material times, MD as a disability worker to provide care to Tara at Tara’s premises. The parties agreed that I should use MD as that worker’s descriptor to maintain her anonymity, because the plaintiff alleges criminal conduct by MD.
The plaintiff’s early history
The plaintiff was born on 15 March 1960 in Penang. She was 1 of 8 children. Because of her father’s career in the Air Force, the family moved residence about every 3 years. The plaintiff’s school performance was fair. She left Ipswich State High School at the end of year 11.
The plaintiff obtained her first job by offering to work for free, cutting onions. That led to a paying job in a hotel.
In 1980, aged 20, the plaintiff had employment as a factory worker when she was involved in a motor vehicle accident. That accident left her with impaired vision in her left eye. She underwent a couple of surgeries and was out of the work force for about a year.
The plaintiff did not return to the factory. She worked in various roles related to hospitality: cleaning, kitchen hand, bar and restaurant work.
The plaintiff’s daughter was born in 1987.
She became the restaurant manager at the Ipswich Golf Club in August 1993.
She remained there until 1998 when she commenced three years full time study at Bremer TAFE College. At the college she obtained a Diploma of Applied Science for Community and Human Service, a Diploma for Youth Work, a Diploma for Community Work and a Diploma for Alcohol and other Drug Work. While doing that study, it was a course requirement that students perform three months of voluntary, unpaid community work.
The plaintiff did and she enjoyed it. She commenced volunteer work at the end of her time at Bremer TAFE.
By about 2001 the plaintiff had left Bremer TAFE. She also worked in a couple of paid positions. She went first into Rosewood Youth Work but did not enjoy it. There was not much work in that field.
She soon obtained a job at the Leichhardt Community Centre as a family outreach officer. It was full time paid work. While doing that she was working a 40 hour week. In addition she did work as a volunteer for 2 or 3 hours per week. The voluntary work required the plaintiff to go to clients’ homes.
In about 2005 the plaintiff moved to Toowoomba. She was part of a meditation group and wanted to be closer to that group and to get more involved with the studies which the group was doing. It was difficult for her to find work in Toowoomba so she took a job cutting flowers until she found a job working with the disabled at Breakaway Toowoomba Inc.
From November 2006 until 1 of April 2008 she did similar work at Warrina Community Co-op.
In about March 2008 the plaintiff suffered a myocardial infarction and was given support by her friend Georgina Nelson. In May 2008 the plaintiff’s friend Georgina Nelson suffered a stroke and the plaintiff supported Ms Nelson.
In 2008 the plaintiff was looking after a friend in Toowoomba who died. I infer that the friend was Ms Nelson. After that death, the plaintiff returned to Ipswich. At Ipswich she worked for Warrina Community Co-op, Ipswich and also for Connect 2 Group Cleveland and for Focal Extended Inc. Ipswich. Those jobs were as a disability carer.
The plaintiff’s employment with the defendant
From about 17th February 2009 the plaintiff began work as a disability carer for the defendant. The plaintiff applied for that job with the defendant. For the 10 months that she worked for the defendant before her injury she had two clients, Tara and Nikita.
Tara, had an intellectual disability and challenging behaviours. Tara could be very aggressive to others and could self-harm. She required 24 hour care, 7 days a week. That care was provided by the defendant. At Tara’s house there was one room set aside for the defendant’s staff. The room had an office, a bed, and access to a shower and toilet. That area could be secured to prevent entry by Tara. If the plaintiff was staying at Tara’s overnight she would sleep with the door locked.
The plaintiff described Tara and Nikita as “high needs” clients. I infer that meant at least that Nikita also required 24 hour care, 7 days a week. The plaintiff opined that three carers were enough for a high needs client. I infer that some clients prefer continuity of carers because a client can develop an agreeable relationship with the carers. And yet, the plaintiff recalled six other carers apart from herself and MD who looked after Tara and remembered that there were other people who filled in.[4]
[4]T1-47.
David Blackett (“Mr Blackett”) was a supervisor employed by the defendant and based at an office in East Street, Ipswich. He was the supervisor of the plaintiff and of MD and Tara’s other carers. Sometimes he would drop into a client’s house randomly. His only regular contact with the carers was at the staff meetings.
On about 19 August 2009 the plaintiff received from the defendant a “certificate of appreciation”.
It was a document of that date awarded to her “In Recognition of Valued Service Support”. Pinned to it was a note from Mr Blackett which reads:
Thanks for all your good work with clients and significant others! You have gone above and beyond the expectations of work and it is very much appreciated.
Cheers, Dave B.
The plaintiff had difficulty describing the hours of her shifts. She explained that shifts were for a regular period of time but that sometimes, if a worker was sick or late, a shift would be extended. The plaintiff said that the 6:00 AM shift would probably end at 4:00 PM but said it was an 8 to 10 hour shift. The day on which the plaintiff was assaulted by MD, the plaintiff was rostered to work a ten hour shift.[5] The plaintiff thought that the evening shift was from 6:00 PM to 6:00 AM.
[5]Exhibit 17.
Tara required medication at regular times. There was a book to record the medication given to Tara. The book was the “Client medication administration book”. Another was a “staff communication book” which was for staff to give messages to the next staff member, for example, as to how the shift had been or whether Tara had an appointment. Another book was a “diary”. [6]
[6]T1-46.
The plaintiff remembered other employees of the defendant who had cared for Tara. She remembered Fiona Greenwood, Melissa Rech, Donna, Lisa, Margaret, Tony Crepin and MD.
The plaintiff believes her relationship with Tara’s other carers was good. The exception was the plaintiff’s relationship with MD. She believed it had been satisfactory. The plaintiff said in evidence:[7]
I started noticing her behaviour towards me and things she wrote in the staff book…. She started writing things in the staff communication book. At first, I didn’t really take much notice of it and then it was more directed at me all the time. That’s when I noticing it… She put a calendar on the desk and I’d moved it, not thinking anything. I just moved it aside to move my paperwork… She had a problem that I moved her calendar and I said “I’m sorry. I didn’t mean too.”… And she kept going on about that.
Mr Campbell: “…. It was eventually something she taped in place so it couldn’t get moved? ---She sticky taped it to the desk… I remember a time when I moved the furniture because… Tara… would sit in the lounge room and when she got stressed out she would rock on her chair and hit her head on the wall, so I moved the lounge forward… So that if she rocked, she’s not going to hit her head… She’d open the skin on her head and bleed… I moved it a safe distance. And then… (MD) came in and moved it back. And… she said she took photographs of it…her notes[8]… Became more frequently focused at me…and the thing about her taking photographs, she wrote that in the notes… she moved the lounge and took the photograph to prove it…If I moved the furniture or did something…then she would do the same and copy that…they were tiny little things that she did that I couldn’t understand… I explained in the book. And she said I’ve taken photos. And I explained, well it’s a - I moved it so that Tara wouldn’t hit her head, and it’s also a health and safety risk…”
[7]Beginning at T1- 47 Line 25.
[8]T1- 50 line 10.
The plaintiff gave evidence of something else written in a book. She was unclear as to whether the book was the staff communication book or a daily recording book or a dairy. The plaintiff recalled that MD[9] wrote that the plaintiff had not administered medication and that the plaintiff had not signed the book. The plaintiff said that each of these things was incorrect.
[9]T1 – 52.
The plaintiff said that she did not respond to MD and did not “have it out with her”. However, the plaintiff explained in the staff communication book why she had moved Tara’s chair.
The plaintiff’s unresponsiveness in evidence on the first day resulted in some leading questions by way of prompts. One significant issue was the extent of the complaints which the plaintiff had made to Mr Blackwell about MD. The plaintiff agreed with her counsel’s suggestion that her case was that she started complaining about MD about when she received the certificate. Her counsel then gave her a multiple choice as to the number of complaints and the plaintiff selected counsel’s first option “numerous”.
When asked for details of the numerous complaints, the plaintiff explained:
They weren’t so much complaints…in the beginning, I was just disclosing things to him and I told him I didn’t understand where she was coming from… like, what’s going on… he listened… I asked David if we could have a meeting and talk to her and get to the bottom of why she didn’t like me… I told him that I wanted to make a formal complaint at that stage and I didn’t know how to go… about it, so I asked if he had the proper procedure and he emailed it to me… I think it was just a guide on what… to do to make a formal compliant…[10]
[10]T1-55.
That piece of evidence was of complaints generally by the plaintiff to Mr Blackett from the time of her first complaints. That general evidence is consistent with the letter, exhibits 4 and 22, in that the plaintiff did not claim in that evidence that she told Mr Blackwell of MD’s physical aggression. It was about 20 pages of evidence later where the first express allegation arose of physical aggression.
The plaintiff agreed that Mr Blackett’s email was sent on 12 October 2009. The plaintiff gave evidence to the effect that Mr Blackett asked her not to submit a formal complaint until the three had meet and talked.
She agreed with the suggestion and explained in her evidence that there would have been no point in putting in a formal compliant if she and MD had been able to resolve everything at a meeting. I accept that they discussed these things on about 12 October 2009.
Mr Blackett organised a meeting to be attended by Mr Blackett, the plaintiff and MD. On about 14 October 2009 in a conference room at the defendant’s office at East Street Ipswich, the three sat at a table. The plaintiff could not remember Mr Blackett’s words. Her evidence was that MD got angry and raised her voice. The plaintiff gave evidence that Mr Blackett said something about a possible communication barrier “because you’re not from Australia” though he did not use those exact words and that the plaintiff gave evidence that she explained to MD:
“I was born in a foreign country. I grew up in a multi-cultural environment and I know what that’s like. When two people are trying to communicate and they get their messages mixed up, you’ve just got to be patient and try to work things out. And she took that and got really, really angry and she said that we were calling her prejudice or something. I can’t remember her words, but she got really angry and raised her voice and she was (pointing a finger at me)… I think she actually said I was prejudiced… or racist or something… and then David…just stood up out of his seat and he put his hands up and her went “No. no. no. Stop. Stop. I am ending this meeting.”… I walked out… I think it was a fear reaction first and I walked out- like, outside the main hall and took a couple of deep breaths and then I went back… and I opened the door and I said, “I’m sorry, David. I just want you to know that I – I didn’t walk – I didn’t – I haven’t left. I’m going to go up and wait outside the main office. And I’m sorry it didn’t work out.” And I just went and sat up at the office… I thought she was going to hit me… because of…her tone of voice…her facial expression… I was a lot smaller than I am now… about 48 kilos… she was probably around the same size as me, but she - I would say she was bigger… David came in a while later and, when he saw me there and I stood up and he went, “I’m so sorry. Oh my god. I didn’t realise how big the problem was with her. She’s got some serious problems… I’ll see you out at Tara’s house.” And then we went to the next meeting at Tara’s… I drove straight from the office out to Tara’s house, and David Blackett arrived shortly after.
The defendant alleged, undoubtedly on Mr Blackett’s instructions, that “in fact at the meeting (it was) the Plaintiff (who) became angry, raised her voice aggressively at MD, abused and accused MD and stormed out of the meeting”.[11]For reasons which follow, I regard the allegation as unproved. At best for Mr Blackett, the allegation was based on his flawed recollection.
[11]FFAD 4(b).
I accept that the plaintiff left the meeting and left Mr Blackett alone with MD. I accept Mr Blackett’s evidence that MD agreed to try to “get along” with the plaintiff.[12] I accept his evidence that afterwards he discussed these things at the defendant’s premises with the plaintiff and that she made a similar agreement.[13] He hoped that the problem would be solved by roster changes.[14]
[12]T7-92.
[13]T7-92.
[14]T7-93.
A meeting at Tara’s home had been pre-arranged for 14 October 2009 to talk about issues related to Tara. It had not been arranged for the purpose of discussing the failed mediation.
The plaintiff alleged in her pleadings[15] that there was another meeting on 14 October 2009 at Tara’s house. The plaintiff alleged that the meeting at Tara’s followed the failed mediation. The defendant initially pleaded that the meeting at Tara’s house occurred before the meeting at the Ipswich office. That detail of the timing was inserted by the defendant in its amended defence.[16] By the occasion of its further amended defence[17] the defendant deleted the detail relating to the order in which the meetings occurred on 14 October 2009. I infer that the defendant’s instructions changed as Mr Blackett’s instructions changed. It is consistent with my impression formed during Mr Blackett’s evidence that his memory of relevant events prior to the assault on the plaintiff on 3 December 2009 was unreliable. At the time of trial Mr Blackett believed that the dispute between the plaintiff and MD aired at the meeting of 14 October 2009 was about “petty stuff’.[18] He admitted in evidence to little memory of the meeting on 14 October at the defendant’s premises and to little memory of the other meeting that day at Tara’s place. I regard Mr Blackett’s evidence of the events of October 2009 as affected by poor recollection. I accept the submission of defence counsel that “It is clear that Mr Blackett was not a good historian”.
[15]SOC and ASOC.
[16]Filed 13 April 2015.
[17]Filed 21 September 2015.
[18]T7-45 line 24.
The plaintiff alleged that at the meeting at Tara’s house on 14 October 2009 Mr Blackett was talking with her about the mediation. She conceded in evidence that she could not then remember the conversation[19] but in spite of that concession she continued that Mr Blackett said:
“I didn’t realise… how big the problem was, how big her problem was, and I think she’s got some serious mental health issues, and I had no idea.” And that’s when Tony Crepin asked “what’s going on?”… And David started to explain about the meeting and then he asked me to – “you tell her”, and I started telling Tony Crepin about what happened in the meeting and how MD had got cranky and aggressive and just how she had twisted what David and I were talking about into a totally different context”.
[19]T1-63, Line 40.
So much accurate detail of a conversation which took place 5 years before is unlikely. However, the plaintiff alleges that she wrote her recollections of events in a letter of which exhibit 4 is a copy and handed that letter to Mr Blackett on 20 October 2009. If that allegation is correct it would make more plausible that the plaintiff could accurately recall the events of 14 October 2009. For the reasons which follow, I accept that the plaintiff wrote and supplied a letter to Mr Blackett on 20 October 2009. Salient features of the letter are set out in paragraph [10] above.
The plaintiff gave evidence that Mr Blackett looked at the letter, a copy of exhibit 4, when she handed it to him, that he did not read it but said “it’s long”. The letter exhibit 4 is indeed long. It is full of detail about the fear and concern felt by the plaintiff. It contains almost no allegation of physical, as opposed to emotional, aggression by MD. Mr Blackett was in a position to observe the physical aggression expressly described in the letter. It was MD’s finger pointing with raised angry voice during the meeting at the defendant’s premises on 14 October 2009. It is plausible that a person receiving the letter would not attempt to read it immediately. If Mr Blackett thought that the dispute between the employees was over “petty stuff” it is more plausible that he would postpone reading it. I accept that if the letter was handed over that Mr Blackett did not immediately read it.
Was the letter given to Mr Blackett? The photocopy letter dated 20 October 2009, exhibit 4, is a photocopy tendered through the plaintiff. The plaintiff’s evidence is that she wrote the original because she did not want to go near MD, that she wrote it on her computer over about six days, implying that she began on about 14 October 2009;[20] that she was in the office at Tara’s house when Mr Bartlett was there;[21] that she said she had written the letter for him and did not want to work with MD anymore and she asked him to sign and witness the letter and to give her a copy;[22] that the plaintiff put her signature on the original and the words “RECEIVED BY;” that Mr Blackett signed the original and applied the date 20/10/09;[23] and that Mr Blackett gave her a copy though it was not on the same day.[24]
[20]T1-65.
[21]T1-65.
[22]T1-66.
[23]T1-64 and T1-65.
[24]T1-66.
The defendant, by its pleading, denies that the plaintiff handed Mr Blackett the letter, and denies that Mr Blackett acknowledged receipt of it by signing it and by later copying the signed letter and providing the plaintiff with a copy. The bases of the denials are that the matters alleged “did not happen”.[25] Further, the defendant alleges that after “14 October 2009 the Plaintiff made no complaint to Blackett about the conduct of (MD)”.[26]
[25]Further Further Amended Defence para 4(d).
[26]FFAD para 4(f).
The photocopy letter, exhibit 4, appears as if it was dated as received by Mr Blackett on 20 October 2009. Mr Blackett believes the “20” component of the date was not in his handwriting. The unspoken inference is that it could have been a copy created by copying a sample of Mr Blackett’s signature from another document with a sample of a date written by Mr Blackett on another document, though a date which had not included “20” and that some unspecified person, not Mr Blackett, inserted the “20”. The defendant alleges the letter is a concoction. There was included in the letter the following passage relating to the meeting at Tara’s house:
At the following meeting at the client’s home you stated in front of another staff “I believe (MD) has a very serious mental health problem” I found your words quite alarming. After stating this you put both hands over your face and moaned and said “oh, I don’t know how we’re going to deal with this”, “this is a big problem”.
The plaintiff was upset by MD’s behaviour at the failed mediation on 14 December 2009. Even Mr Blackett accepts that afterwards he tried to roster the two employees so that there would be no crossovers. It is consistent with the plaintiff’s dislike for working with MD exacerbated by MD’s behaviour at mediation that the plaintiff would promptly write a letter like exhibit 4.
On 26 February 2010 the plaintiff telephoned Mr Blackett and recorded her conversation.
The transcript of that conversation[27] included this exchange:
[27]Exhibit 19.
(Plaintiff): I do keep on reflecting back on that meeting that we had at Tara’s house when you said that (MD) had a metal health problem.
(Mr Blackett): Yeh, Yeh, well that’s what I did feel was possibly the scenario, I mean um, I really don’t know for sure about those things but um yeh um, I suspect, well there were certainly issues weren’t there?
Mr Blackett’s acceptance in the telephone conversation 4 months after his meeting at Tara’s house that he had referred to MD’s “mental health problem” satisfies me that he did assert to the plaintiff on 14 October 2009 at Tara’s house following his observations of MD at the meeting at the defendant’s Ipswich office, that MD had a “mental health problem”. Exhibit 4 is consistent with that event. I am not satisfied by Mr Blackett’s use of the words “mental health problem” that Mr Blackett necessarily believed that MD had a mental health problem. He would have known that his suggestion of such a diagnosis would have appeased the plaintiff. He ought to have known that he had insufficient skill or evidence to justify his amateur diagnosis. In evidence, Mr Blackett was prepared to accept that he must said such things about MD but went further to say, in effect, that he did not agree with what he had said about MD’s mental health.[28] I am not satisfied that on 14 December 2009 that Mr Blackett then knew or ought to have known from what he had witnessed of MD’s behaviour at the meeting on 14 December 2009 that MD might behave with violence towards the plaintiff.
[28]T7-82 line 26.
That Mr Blackett admitted saying MD had a mental health problem makes it more plausible that at the failed mediation, some aberrant behaviour was likely to have been displayed by MD. It adds plausibility to the plaintiff’s version that MD became angry, raised her voice aggressively and pointed her finger at the plaintiff. Mr Blackett’s saying that MD had displayed a mental health problem is not consistent with the defendant’s pleading. The defendant, presumably on Mr Blackett’s instructions alleged that it was the plaintiff who became angry, raised her voice aggressively at MD, abused and accused MD.[29] Mr Blackett’s reference to MD’s mental health is consistent with, but not determinative of the authenticity of part of the narrative in exhibit 4.
[29]FFAD para 4(b).
In evidence, Mr Blackett accepted that at some time he had “put his hands over (his) face and moaning and saying some things”.[30]That too is consistent with some of the narrative in exhibit 4 concerning a conversation alleged to have occurred at Tara’s house on 14 October 2009, after the failed mediation. Mr Blackett’s evidence and its inconsistency with the defendant’s pleading suggests that at trial Mr Blackett had poor memory of the events of the mediation meeting of 14 October 2009 at the defendant’s office. I infer that at the time Mr Blackett gave instructions, he inaccurately deemphasised MD’s provocation offered to the plaintiff at the mediation and that he had little or no memory of the meeting at Tara’s home an hour or so after the failed mediation.
[30]T7-53 line 18.
Examination of the page of the photocopy exhibit 4 (and less so on exhibit 22) bearing Mr Blackett’s signature shows that the signature is in the middle of the central section of the page. That central section is bounded by two horizontal and generally parallel lines. Any suspicion that the lines were created by placing a piece of paper containing Mr Blackett’s signature on that third page prior to copying is dispelled by looking at the second page of Exhibit 4. The same lines are visible, in the same positions on the second page. If Mr Blackett’s signature was fraudulently applied, the lines on the third page of the copy letter are not proof of it. The lines on the third and second pages and faint lines on the first too, are consistent with the original letter’s having been folded into three and leaving crease marks which generally divided each page into thirds.
The plaintiff seeks to prove that she provided an original letter on about 20 October 2009 to Mr Blackett by proving that she received from Mr Blackett the copy which is exhibit 22. The plaintiff bears the onus of proof of these events on the balance of probabilities. The defendant’s case is that the letter is a fraud. Mr Blackett’s evidence was to the effect that he does not remember receiving an original letter from which the copies in exhibit 4 or exhibit 22 were created. His poor memory of events of that period means that his absence of a memory is of little weight in determining whether an event occurred. Mr Blackett did not go so far as to say that he remembers that no such letter was given to him. His other directly relevant evidence on this issue is that he does not write the handwritten figure “20” as it appears in exhibit 4. There is some corroboration for that by looking at a few examples of the numeral “2” written by him in the material which were different from the “2” in the figure”20” allegedly written by Mr Blackett. I accept that they were different. The difference raises a doubt in my mind as to whether Mr Blackett wrote the “2”. Such doubt as is raised by those matters does not cause me to reject the plaintiff’s evidence of preparing the letter in the days following the events of 14 October 2009 and giving an original to Mr Blackett and receiving from him a copy bearing his signature.
The alleged timing and duration of the creation of the letter is plausible. It was allegedly created over six days from and including the day of the failed mediation. That seems to me consistent with the behaviour of a person wanting to set out fully for her employer’s consideration all matters relevant for justifying her ultimatum in the letter. Her demand was to the effect that clients shared by her and MD and or rosters for her and MD be altered to ensure that the plaintiff and MD would not cross paths. The plaintiff’s ultimatum was to the effect that unless her demands were met she would resign.
The letter’s assertion of aberrant behaviour by MD at the mediation initially disputed by the defendant, has been shown to have occurred. Mr Blackett’s reaction to MD’s behaviour later at Tara’s house by putting his hands over his head and proclaiming that MD has a mental illness each initially disputed by the defendant, have each been shown to have probably occurred. That there was a meeting at Tara’s house after the failed mediation was initially disputed by the defendant. It has been shown to have occurred. The inclusion of these matters in the letter suggests that the letter was prepared when the plaintiff’s memory of these matters was fresh. While that does not exclude the possibility that it was created after 3 or 20 December 2009, it seems more plausible that it was created before the assault.
It is more plausible that it was created before the assault because of what the letter failed to include. It failed to include any allegation of past violence. It failed to allege that the plaintiff feared violence. It failed to expressly allege even a risk of MD’s having a propensity for violence. It failed to suggest that the plaintiff’s mental health was even remotely in jeopardy as a result of MD’s aggression. It failed to suggest that the plaintiff thought MD had mental health issues. Instead, it seized on a quote from Mr Blackett.
Further, the letter made the plaintiff, as author seem at the time of writing to be forceful, determined to have her inconvenient demands met and conscious of her perceived value to the defendant. She was requiring inconvenient roster or client changes for her benefit with the ultimatum that she would otherwise resign. That letter was consistent with a letter from the kind of employee she was before the assault: one who confidently believed she was valued by her employer. After the assault she lost her confidence and any belief that she was valued by the defendant. It seems less likely that a forgery after the assault would maintain the confident tone of the letter.
It is fraud which the defendant alleges in answer to the plaintiff’s evidence that she gave a letter to Mr Blackett. Even in civil cases “weight is given to the presumption of innocence and exactness of proof is expected” when a party seeks to establish the equivalent of a crime.[31]
[31]Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336 at 362 per Dixon J.
On the balance of probability I accept the plaintiff’s evidence that on or by 20 October 2009 she gave to Mr Blackett a letter in the same terms as exhibit 4 and 22.
That finding does not add strength of the plaintiff’s case that violence or a psychiatric injury to the plaintiff were reasonably foreseeable by the defendant.
The letter does not expressly state that MD may physically assault the plaintiff. The letter does not imply a risk that MD may physically assault the plaintiff.
The letter does not expressly state that there is a risk to the plaintiff’s mental health. It is not a reasonable inference from the letter that the plaintiff fears for her own mental health.
The letter’s content suggests that the plaintiff then had a healthy appreciation of her dilemma. Her dilemma was that she wanted to keep working yet she wanted to avoid MD and the risk of her misbehaviour; that work for the same client that MD worked for meant their work schedules might bring them together briefly at shift changeovers; that work for the same client meant that it was appropriate for MD to make written notes for the plaintiff to read and appropriate to write comments about the plaintiff’s work at Tara’s home. She described how MD had behaved badly towards her, that it led the plaintiff to feel “harassed”. She asked the defendant to deal with her dilemma by either roster changes or even client changes or both and even if it results in a temporary reduction in the plaintiff’s hours. The plaintiff advised that she will resign if the changes are not made. The plaintiff added other descriptions of the effects on the plaintiff’s feelings which MD’s behaviour had caused her: “her behaviour frightens me”, “incredibly disturbed by the way she twisted the meaning of my words” in front of Mr Blackett at the failed mediation, “I don’t have any bad feelings toward (MD)”, “I am frightened of her and do not wish to come in contact with her”, “I no longer wish to make a formal complaint about (MD)”. The plaintiff concluded the letter: “I regard her behaviour and personal comments as petty and unprofessional. I do not wish to continue with any action that would result in meeting with her to discuss these issues. I’d rather put it behind me and move forward. All I want to do is go to work and do my job in peace. Thank you for considering my request to change my rostered shifts so that I might do that.”
I do not infer from the letter that the plaintiff was afraid for her own mental health and find that the defendant should not have inferred from the letter that the plaintiff was afraid for her mental health when she wrote it or if the defendant did not achieve what she requested. That is different from the legal issue of whether the defendant should reasonably have foreseen that there was a risk of injury to the plaintiff’s mental health. But the plaintiff’s attitude expressed in the letter is a matter relevant to the issue of whether injury to her mental health was reasonably foreseeable by the defendant six weeks later when MD assaulted the plaintiff.
I propose to deal with the four fresh complaints which emerged in evidence on the first day of trial and which had not been the subject of particulars. The plaintiff said that she “reported most of what MD had said and done to David Blackett”.[32] She said that there were numerous incidents;[33] that one morning she arrived at work and walked down the hallway, that MD jumped and blocked her, that the plaintiff said “Hi” and tried to walk around MD and MD jumped and blocked her again until MD eventually let the plaintiff pass;[34] that another time, MD poked the plaintiff in the back with a broom and said “watch your back”;[35] that another time MD pushed the plaintiff in the breast while the two were in the hallway near the staff toilets but the plaintiff could not recall what that had been about; that another occasion related to the plaintiff’s taking the defendant’s car. The plaintiff was entitled to take the defendant’s car for certain work related purposes and she and other employees could book a car at the office. A proper purpose would be to take a client to a medical appointment. The plaintiff gave evidence of an occasion when MD “sort of roused on me, and she just grabbed my wrists… it was firm, and she sort of twisted”;[36] the plaintiff continued to describe the incident saying “she just grabbed my wrist and was going off about the car. I can’t remember what she was saying… it was about my use of the car.”[37]
[32]T1-66, Line 32.
[33]T1-69, Line17.
[34]T1-72, Line 46 to T1-73, Line 5.
[35]T1-72, Line 5.
[36]T1-73.
[37]T1-78, Line 19.
The plaintiff’s counsel later suggested to the plaintiff three things in leading questions: Had MD twisted the wrist? Was it like a “Chinese burn”? Was she “twisting your whole arm or what?” After the plaintiff had agreed to the first two propositions but not the third, the plaintiff demonstrated with a gesture that did not suggest a “Chinese burn” or anything violent and the plaintiff said “she was just, I guess, grabbing my attention and – I don’t know.”[38] I was not persuaded that the wrist grabbing episode suggested that MD had a propensity for violence whether judged objectively or as judged by the plaintiff. At best for the plaintiff, I accept the plaintiff’s evidence that by taking her wrists, MD “was just grabbing my attention”. The plaintiff then adopted her counsel’s suggestion that she had reported all those matters to Mr Blackett.[39] The plaintiff said that Mr Blackett “kind of played them down and said well maybe – maybe you’re overreacting. Maybe you’re just reading too much into it.”[40]If the plaintiff had provided only those four sketchy details to Mr Blackett they should have provoked some questions from him to determine whether they were evidence of aggression. The plaintiff left the impression as she gave her evidence that even she did not know how to interpret the four episodes she so sketchily recalled in her evidence.
[38]T1-78, Lines 25 to 36.
[39]T1-78, Line 43.
[40]T1-79.
Mr Blackett denied that the plaintiff raised those matters with him.
The defendant denied that, prior to 14 October 2009, the defendant received any verbal complaint from the plaintiff about MD’s conduct, “save that on one occasion the plaintiff complained to Blackett that MD had reorganised items on the desk in the staffroom”.[41]The plaintiff’s counsel persuasively submitted: “One wonders why Blackett would have sent this form to the Plaintiff if prior to 14 October 2009 she had complained to him only once, and only about the fact that MD had reorganised items on the staff room desk? Further, one wonders why Blackett would have bothered to arrange and attend the first meeting on about 14 October 2009 if only one such complaint had been made?”
[41]FFAD 4(a).
As flawed as the plaintiff’s memory appeared to be, so too did Mr Blackett’s appear. The events prior to the assault would have had much less significance for him. I accept the plaintiff’s evidence to the effect that that the plaintiff made several verbal complaints to Mr Blackett about MD’s behaviour. The complaints may have been about the notes left by MD at Tara’s house and MD’s reactions to the plaintiff’s precautionary shifting of Tara’s rocking chair from its position close to a wall and to the plaintiff’s shifting of MD’s desk calendar and MD’s pointedly shifting it back. Carers were to use books at Tara’s home to leave relevant notes for the subsequent carers to allow them to give proper care of Tara. MD appropriately left notes for subsequent staff to read. A small number of MD’s notes, properly interpreted, were critical of the plaintiff’s competence and tidiness. MD’s notes suggested MD was a few times petty and a few times critical, mostly of the plaintiff. Tara had risked injury by banging her head into a wall while seated in a chair during the plaintiff’s shift. The plaintiff sensibly moved Tara’s chair further from the wall. If MD’s note is to be believed, during MD’s shift, MD saw that the chair was in a different position, photographed the position of the chair and then moved the chair closer to the wall. MD’s note implied that MD was critical of the plaintiff as a carer and had photographic evidence available of what the plaintiff had done or permitted. Individually and more so cumulatively, the notes and conduct are likely to have provoked the plaintiff to mention them to her supervisor, Mr Blackett. Individually and cumulatively, MD’s criticisms appeared as symptoms of MD’s pettiness and her dislike of the plaintiff. The notes and conduct did not reasonably lead to the inference that MD was violent or disposed to be violent towards the plaintiff.
Whether or not MD did the things which the plaintiff described in the four fresh complaints, the plaintiff omitted to mention them in her letter, copies of which are exhibits 4 and 22, despite drafting the letter over six days and seemingly laying all her arguments before the defendant for demanding inconvenient roster or client changes. She omitted to tell Mr Blackett about them in the telephone conversation recorded on 26 February 2010. She omitted to draw these four incidents to the attention of her lawyers during preparation for trial. She omitted to tell the medical experts who saw her. She omitted to mention them in evidence before lunch on the first day of trial. I am not persuaded that the plaintiff raised any of those four incidents with Mr Blackett. I accept that the four fresh incidents recalled by the plaintiff were based upon events which had occurred. The plaintiff’s failure to mention them until such a late stage means that I am not satisfied that any of the incidents caused the plaintiff to infer a risk of violence to her or a need to alert Mr Blackett that there was cause to fear violence. I am not satisfied that the plaintiff drew any of the four fresh incidents to the attention of Mr Blackett.
The plaintiff has not established that the defendant had notice from the plaintiff orally or by letter that MD had demonstrated aggression to the plaintiff or any other person of a kind which involved violence or even physical touching. The defendant alleged that any “verbal communication which the Plaintiff may have made to Blackett did not alert the Defendant to any risk that MD may physically attack the Plaintiff”.[42]I so find.
[42]FFAD 4(a).
Neither by the oral communications which the plaintiff has established making, nor by providing to Mr Blackett the original of the letter copies of which became exhibits 4 and 22, did the plaintiff alert Mr Blackett to any matter from which Mr Blackett or the defendant should have concluded there was any risk that MD was more likely than any reasonable person to physically attack the plaintiff.
The plaintiff’s pleadings alleged that after the meetings of 14 October 2009, Mr Blackett altered the rosters of the plaintiff and MD to remove MD from caring for the client and, inter alia, to ensure that the plaintiff and MD did not cross paths when changing shifts.[43]That allegation is only partly correct. Mr Blackett tried to do so. He gave instructions to the roster clerk. It was difficult to arrange where it was a priority to maintain continuity of carers for Tara and other clients and where there were few carers with whom Tara had continuity of relationship. On 3 December 2009 the roster had required a different carer, not MD, to precede the plaintiff’s shift at Tara’s house. MD was called in to replace that carer who was sick.[44]
[43]ASOC paragraph 1(g)(v).
[44]T7-82 line 12.
The plaintiff gave evidence that there were only two occasions prior to the assault, when she saw MD at work again. Once was on Melbourne Cup Day in 2009 and there was another day when they crossed over at the end of a shift. I reject that evidence. There were numerous crossovers between MD and the plaintiff at the end of shifts in late October and November 2009.
What did the plaintiff remember of her contacts with MD after 14 October 2009?
The plaintiff gave evidence of the first occasion after Mr Blackett offered to change the roster that she remembered crossing over with MD; that it puzzled her because she thought Mr Blackett was not going to put the plaintiff and MD on a cross over; that she thought “maybe they’re in the process of changing the rosters.”[45]
[45]T1-80.
The plaintiff gave evidence of one further contact. “I remember having contact with MD on the 5th. That was Melbourne Cup Day… And another day.”[46] The Melbourne Cup was run on the first Tuesday of November in 2009. That was Tuesday 3rd November 2009. Why did the plaintiff say that it was on the 5th? On the morning of the first day of trial, counsel for the defendant in argument about the pleadings said, while the plaintiff remained in the courtroom, that the plaintiff and MD had crossed paths on October 22, 24 and 25 and on November 5 and 19.[47] On the afternoon of the first day of trial when the plaintiff was asked to give evidence of when she had contact with MD she said “I remember when that fellow was talking about the – what dates… 22nd, 24th and 25th, I think and then he said the 5th and something else”.[48] It was her knowledge that the defendant had records suggesting more cross overs than she that which prompted her to suggest that the day of the Melbourne Cup in 2009 was 5 November.[49] The plaintiff gave evidence of what she saw and felt and suspected on the day of the Melbourne Cup; that she was surprised when Mr Blackett called at the house to pick up the client and the plaintiff to take us to a party at the office; that the plaintiff was a bit shocked when she saw MD sitting there; that her client sat with the client MD was working with and that the plaintiff walked to the other side of the room and stood there.[50]
[46]T1-80, Lines 1-4.
[47]T1-19, Line 12.
[48]T1-79.
[49]T1-79, Line 1.
[50]T1-80.
The plaintiff had forgotten eight relevant and uneventful crossovers which occurred after her letter was signed by Mr Blackett on 20 October 2009. In fact, after 14 October 2009 the plaintiff and MD crossed over on 16, 20, 22, 23, 24 and 25 October 2009 and on 5, 10, 19 and 27 November 2009 without physical incident. It confirms my impression that the plaintiff’s memory was at least as unreliable as one should ordinarily expect from a person recalling events from six years before, unless her memory was refreshed from contemporaneous documents. The plaintiff and MD crossed over eight times without the plaintiff’s having occasion to complain of MD’s behaviour. That inference can be drawn from the plaintiff’s failure to give evidence of any occasion to complain and from her instructions to her solicitor.[51] I find that in spite of cross overs 8 times after 20 October 2009 and one Melbourne Cup function at which the plaintiff and MD were guests, there were no further complaints or incidents which put the defendant on notice of a risk of assault or any other injury arising from the plaintiff and MD being so rostered that they would meet at change over.
[51]Exhibit 48 par 11.
At about 7 a.m. on Thursday 3 December 2009, in the course of her employment, the plaintiff attended at Tara’s premises to commence her 6 a.m. to 12 noon morning shift to care for the client. Unbeknown to the plaintiff, MD had been rostered by Mr Blackett to care for the client at the premises for the previous overnight shift.
The plaintiff gave evidence that at that time at Tara’s premises on 3 December 2009:
1. the plaintiff saw MD’s car there and was tempted to drive home. Instead she went in. The shift changeover occurred without incident with MD leaving the premises and the plaintiff locking the front door behind her, but not the garage roller door;
2. a short time later, MD had re-entered and was saying that she had lost her purse, looking ominously at the plaintiff; that MD made a phone call and returned; that the plaintiff asked where MD had lost it, how she could help and whether MD had retraced her steps; that MD began speaking quickly and incomprehensibly until MD started repeating the question “Why don’t you just bring it back to me?”; that the plaintiff replied “Why don’t you tell me what you really think MD? You need to either ring the police or you need to ring David Blackett. You need to ring the office. You need to get somebody here that… can help you with this, because I can’t help you with this”; the plaintiff then walked away and attended to the client; that the plaintiff then called the defendant’s emergency after hours on-call number but nobody answered; that the plaintiff may have called Mr Blackett without an answer; that MD appeared in front of the plaintiff again speaking quickly and poking the plaintiff in the chest; that the plaintiff raced into the kitchen and closed the glass sliding door and locked it saying to MD “you need to call the police”; that MD walked away, shoving the client in the chest; that the plaintiff calmed the client, walked her out the front door and put her in the back of the plaintiff’s car and strapped her in and was putting something into the back seat of the car when MD came out of the house and got into the driver’s seat of the plaintiff’s car and put her arms around the steering wheel; that the plaintiff asked her to stop because she was scaring the client and the plaintiff and that MD needed to ring the police and get out of the car;
[78]The trial Judge’s reference to the well-known category of duty to provide a “safe system of work”, conceals the novelty of the duty his Honour identified in this case. There is an ambiguity inherent in the word “system”. The body of case law with respect to a “safe system of work” has been, so far as I am aware, exclusively concerned with the conduct of tasks for which an employee is engaged. (see, for example, Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308 – 309). His Honour made no reference to any authority, nor was any authority drawn to the attention of this Court, that extended the concept of a “system of work” to matters concerning the incidents of the contract of employment, such as the disciplinary procedures under consideration in the present case. This is a novel category of duty and involves an extension of the employers’ duties. In the present context, it raises important considerations concerning the interrelationship between duties of care and statutory powers and duties.
[88] Defendant’s Submissions in Reply, para 2.
The plaintiff’s case, like the case in Paige, is based on the premise that the duty to provide a safe system of work extends beyond the conduct of tasks for which an employee is engaged and as far as the provision of a safe system of investigation and decision making.
Paragraph 6 of the amended statement of claim provides, so far as is relevant, that the plaintiff’s injuries were caused by the negligence and/or breach of contract of the defendant particulars of which are:
(a) failing to take… adequate precautions for the safety of the plaintiff… during its subsequent investigation…;
(b) exposing the plaintiff… during its subsequent investigation… to a risk of injury…;
(c) failing to provide and maintain a safe and proper system of work… during its subsequent investigation…
Those causes were impliedly linked to the duty set out at para 1(d) of the amended statement of claim “to maintain a safe and proper system of work”.
In Paige the plaintiff had been successful at trial having achieved the findings that the disciplinary procedure had not been properly carried out by his employer and that as a consequence he had suffered a depressive illness. Spigelman CJ considered that the proposed duty to take care during the investigative process should not be recognised.[89] It is significant that Spigelman CJ referred to it as a “proposed duty”. It is clear from the judgment that his Honour did not regard the issue as resolving what should occur when there was a clash of two duties. It was not his Honour’s finding that there was a duty of care to provide a safe system of work which involved a duty to be careful about the timing and content of the letters sent when investigating conduct, but that the duty would not apply where it caused incoherence with another body of the law. His Honour held that there was no duty of care with respect to the conduct of the investigative process and was considering whether to extend the duty to provide a safe system of work beyond its conventional boundary so as to encompass the investigative process.
[89]State of New South Wales v Paige op.cit [132].
Spigelman CJ continued:
[132]Of particular significance for the present case is the need for coherence in
the law, in view of the interaction and interrelation between the proposed duty in tort and the law applicable to termination of employment, that is, the law of contract as modified by statute. In my opinion, the possibility of incoherence in the system of law applicable in this State is such that the proposed duty should not be recognised.
The Chief Justice also regarded a tension as having arisen in that case because of the need for coherence because a potential tension between the specific negligence alleged and the law of judicial review of administrative conduct.
In relevant respects, Mason P and Giles JA agreed.[90]
[90] Mason P at [330] and Giles JA at [358].
The plaintiff sought to distinguish Paige thus:
211. … the Plaintiff does not complain that the delivery of the two letters by the Defendant was not properly carried out in accordance with the requirements of any statutory provisions governing such disciplinary procedures (there are none), or with the requirements of any established procedures or written policies which the Defendant may have had in place for dealing with such disciplinary matters, about the existence and content of which procedures or policies there is just no evidence. The Plaintiff was not charged, let alone disciplined or dismissed, and thus the Plaintiff does not complain of any breach of administrative law relating to any alleged failure to accord her natural justice in relation to any disciplinary procedure which has never taken place, let alone any procedure relating to the termination of her employment, such as wrongful dismissal, etc.
212. The Defendant does not and cannot point to any specific administrative law, industrial law, employment law or any other tortious (e.g. defamation or assault) remedy of which the Plaintiff could have availed herself in the days post incident after her receipt of the first letter, or after her receipt of the second letter, or at any subsequent time. Nor is there, or was there, any remedy for damages available to the Plaintiff, analogous to her claim herein for negligence and/or breach of contract, which may either have prevented the injuries sustained by her as a consequence of such actions, or have subsequently compensated her for the consequences of such actions.
Paige was not concerned with incoherence with only administrative law. Spigelman CJ referred specifically to “the law applicable to termination of employment, that is, the law of contract as modified by statute”. It seems to me, with respect, that his Honour’s observations are equally applicable to the Queensland law applicable to termination of employment. One example arises from the application of section 83 of the Industrial Relations Act 1999 Qld which permits an employer to dismiss an employee for assault but not if the employee can show that in the circumstances, the conduct was not conduct that made it unreasonable to continue the employment. That section makes prompt investigation practical and makes practical the invitation to an employee to promptly show cause why it is unreasonable to dismiss the employee.
In O’Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 the Court of Appeal in New South Wales was considering an appeal by a plaintiff who had failed at trial. Employed as a bookkeeper, he suffered psychiatric injury in reaction to evidence of others’ suspicion of his conduct and in reaction to his progressive isolation. The employer’s conduct towards him had been wrong if not disgraceful in several respects. His appeal was dismissed by the majority. Spigelman CJ, consistently with his Honour’s judgment in Paige, observed:
[23]In my opinion, his Honour has confused other duties which arise in an employer/employee context — such as an obligation to accord natural justice or of fair dealing — with a duty of care… The duty breached, however, was not, in my opinion, in the circumstances of the case a duty of care.
In New South Wales v Rogerson [2007] NSWCA 346 a former police officer sued the state for breaches of the duty of care owed by his former employer, the Police Service, to safeguard him from foreseeable risks of psychiatric injury. The trial Judge accepted that several breaches of duty had been established. The Court of Appeal in New South Wales allowed the appeal, reversing the findings of breach of duty, in part on the basis that there was no duty of care. The headnote accurately summarised as follows:
The substance of the plaintiff's complaints were that the Service had a duty to protect him from discrimination and victimisation because of his family relationship with his brother, Roger Rogerson, a disgraced former Police Officer. The relevant incidents were:
(1)the advice of a legal officer that if the plaintiff was called as a witness before the Wood Royal Commission he might be asked questions about his association with his brother and the rejection of a formal complaint about that advice;
(2)the rejection by the Casino Control Authority of the plaintiff's nomination for secondment to that Authority;
(3)remarks by a fellow officer of lower rank who had been recommended for a promotion ahead of the plaintiff; and
(4)the rejection of the plaintiff's formal complaint about those remarks.
The Court[91] relevantly found:
[91] Handley JA, McColl JA agreeing at [1] and Hoeben J agreeing at [43].
[26]… The Service and the State owed him no duty of care in the administration of the procedures for promotion to commissioned rank: compare State of New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371.
…
[38]… The plaintiff was transferred, possibly without prior discussion or consultation… to the Firearms Trafficking Unit. This was said to have been unwanted and unrequested. The absence of prior consultation, if this did not occur, might demonstrate some lack of sensitivity but that is all…
[39]There was no common law duty of care owed to the plaintiff in this situation, and no breach of such a duty; compare State of New South Wales v Paige.
…
[41]The incidents that the plaintiff found distressing and his numerous disappointments did not involve any breach of a common law duty of care owed to him by the Service…
In Palmer & Ors v State of Queensland [2015] QDC 63 McGill DCJ was obliged to consider a related issue concerning whether an employer’s lack of support for an employee during an investigation caused psychiatric injury and the related issue of whether there was an obligation to provide my support imposed by a duty of care to avoid psychiatric injury.[92] His Honour observed:
[124]The need for support, if it existed, arose because the complaints were made against the plaintiff, and they were being investigated, which would be productive of anxiety for her, and because her being removed from her position would also be productive of anxiety for her. It follows from the decisions in New South Wales to which I have referred[93] that there can be no duty of care arising in such circumstances directly from the fact of the allegations, the investigation, or the removal from the position. It would in my opinion be inconsistent with that approach to say that, although there was no duty not to cause psychiatric injury by doing those things, there was a duty to provide support in response to those things so as to avoid psychiatric injury. In my opinion, there was no duty to provide special or additional support arising from the fact of the investigation of the complaints, and the removal of the plaintiff from her position.
[92] [123]
[93]Paige (supra); O’Leary (supra); Rogerson (supra).
I reject the plaintiff’s submission that Paige is relevantly distinguishable.
Consistently with the decisions in Paige, O’Leary, Rogerson and Palmer I find that, in spite of the fact that by the content and timing of its letters the defendant caused reasonably foreseeable psychiatric injury to the plaintiff, the defendant is not liable for it. This is because the defendant owed the plaintiff no duty to take reasonable care to prevent psychiatric injury by those letters as they were sent as part of the process of investigating whether there was misconduct arising from an alleged assault by the plaintiff in the course of her employment.
It follows that the plaintiff fails in her claim against the defendant.
Quantum
I assess quantum in case the findings on liability are erroneous. I will not make the final calculations for those items which vary according to the date of final judgment.
I consider quantum firstly, on the simple hypothesis that the plaintiff succeeds entirely on liability and that the defendant is responsible for the injuries caused by MD and by the letters Ex. 6 and Ex. 7.
Future economic loss needs to be discounted. Firstly, for the ordinary contingencies of life; secondly for the other health risks for the plaintiff’s cardiac condition for which she declines to comply with her medication regime.
| 1. | Past and future pain and suffering and loss of amenities | $60,000.00 | ||
| 2. | Interest on past pain and suffering (50% of 1) at 2% pa since incident | … | ||
| 3. | Special damages: (a) Hospital expenses paid by WCQ (Ex. 15) (b) Medical expenses paid by WCQ (Ex. 15) (c) Rehab expenses paid by WCQ (Ex. 15) (d) Refund to Medicare (to 18.04.14) (Ex. 50) (e) Medical expenses paid by plf (agreed) (f) Travel expenses paid by plf (agreed) | $1,380.00 10,180.50 3,493.94 4,444.15 800.00 2,500.00 | 22,798.59 | |
| 4. | Interest on special damages paid by plf ($3,300) @ 5% pa since incident | … | ||
| 5. | Past economic loss - $1,018.29G ($816N) pw av (Ex 17) for all wks from 04.12.09 to date of judgment in plaintiff’s favour | … | ||
| 6. | Interest on net past economic loss (after deduction of $87,311.01 net WC payments, $68,263.75 WC lump sum, and $30,000.00 est C’link payments from 29.05.12 to 20.11.15) @ 5% pa since WC ceased on 11.05.12 to date of judgment in plaintiff’s favour | … | ||
| 7. | Fox v Wood | 26,282.00 | ||
| 8. | Future economic loss - $850N pw from date of judgment for the plaintiff to age 67 (multiplier to be used) discounted by 25% for contingencies | … | ||
| 9. | Past superannuation loss (9% of 5) | … | ||
| 10. | Future superannuation loss (10.5% of 8) | … | ||
| 11. | Future expenses (Chau) (a) psychiatric/psychological treatment 2 yrs (b) psychotropic medication ($60 pm for 20 yrs) (c) PTSD Clinic | $12,000.00 | 31,200.00 | |
| Gross assessment | … | |||
| Less: refund to WCQ | 196,911.20 | |||
| Net assessment | … | |||
Having found that that the receipt of Ex. 6 and Ex. 7 caused the plaintiff loss it is necessary to value or assess the extent of that in monetary terms on the hypothesis that the plaintiff cannot recover for the loss caused by MD’s assault. That involves assessing the extent of the aggravation caused by receipt of Ex. 6 and Ex. 7. On the evidence that is difficult.
I am satisfied that the assault, without the letters Ex. 6 and Ex. 7, would have led to the plaintiff’s hospitalisation, a need for prompt investigation by the defendant, cessation of employment and “Moderately Severe Post Traumatic Stress Disorder and Major Depressive Disorder”. I infer from Dr Curson’s opinion that the perceived lack of support from the defendant during the plaintiff’s convalescence, and termination of employment were themselves aggravating matters. Except to the extent that the letters contributed to the perception of lack of support, the lack of support and cessation of employment and the incomplete investigation are to be disentangled from the effects of the two letters. I am satisfied that the consequence of subjecting the plaintiff to proportion of the loss attributable to the two letters is 15%.
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