Hall v State of New South Wales (Department of Corrective Services). Hall v State of New South Wales (Department of Education and Communities)
[2013] NSWDC 66
•21 May 2013
District Court
New South Wales
Medium Neutral Citation: Hall v State of New South Wales (Department of Corrective Services). Hall v State of New South Wales (Department of Education and Communities). [2013] NSWDC 66 Hearing dates: 13/05/2013 - 17/05/2013 Decision date: 21 May 2013 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraphs 121 and 122
Catchwords: Psychiatric injury, school in maximum security juvenile prison, causation. Legislation Cited: Civil Liability Act 2002
District Court Act 1973
Workers Compensation Act 1987Category: Principal judgment Parties: Sally Hall (Plaintiff)
State of New South Wales (Department of Corrective Services)
State of New South Wales (Department of Education & Communities)Representation: A Black SC and E Welsh (Plaintiff)
E Brus (Defendant)
I Roberts SC (Defendant)
Federation Law (Plaintiff)
Crown Solicitor's Office (NSW) (Defendant)
Leslie Hargrave Pty Ltd (Defendant)
File Number(s): 2010/00347906 2011/00152206 Publication restriction: Suppression order relating to the names of inmates in the Juvenile Correction Centre. Suppression order relating to the publication of Exhibit C
Judgment
The plaintiff was born in 1950. She became a high school teacher. She spent a number of years in country schools, often following the work places of her husband. In 2012 she commenced working at the George Anderson Walpole School, which is situated in the Kariong Juvenile Correctional Centre ("Kariong") and caters for the education needs of the inmates. Kariong is a maximum security institution.
On 5 November 2007 an incident occurred at the school as a result of which the plaintiff alleges she suffered a major psychiatric injury. She blames the Department of Corrective Services and the Department of Education and Communities for her injury. She has sued each of these departments by separate proceedings.
Proceedings No 2010/347906 are against the Department of Corrective Services ("DCS"). Proceedings No 2011/152206 are against the Department of Education ("DEC"). Both departments are sued as the State of New South Wales. On 18 May 2011 an order was made that the proceedings be heard concurrently. I added to this order to the effect that evidence in one case would be evidence in the other.
There is no relevant difference between DEC and the Department of Education and Training ("DET").
The parties agreed that there be one set of reasons dealing with both cases.
The case against DCS is governed by the Civil Liability Act 2002 (the "CLA"). The plaintiff has claimed damages under the following heads: non-economic loss, past and future medical expenses, past and future economic loss and past gratuitous care.
The other proceedings, against DEC, fall under the Workers Compensation Act 1987 (the "WCA"). In this case the plaintiff has claimed damages for past and future economic loss only. This is due to the provisions of Section 151G of the WCA. There is no dispute that the plaintiff has met the 15% impairment threshold stipulated by Section 151H.
Section 151Z is also important to the assessment of damages in both cases.
Both DCS and DEC have denied liability and also challenged the extent of the plaintiff's claim on quantum. Ultimately however DEC accepted that its liability would follow a finding of liability on the part of DCS. This was because it owed a non-delegable duty of care to the plaintiff. Both defendants also accepted the plaintiff's quantification of a number of heads of damage.
Some background
The plaintiff's background is generally set out in the chronology, Exhibit A. Of particular note is that the plaintiff consulted a general practitioner in December 2000 for depression. This was a reaction to infighting amongst her daughters and to her disquiet with the cold weather in Orange.
The plaintiff commenced working at Kariong in January 2002. At this time the Department of Juvenile Justice operated the centre. It was taken over by DCS in November 2004.
In December 2005 the plaintiff again saw a general practitioner about depression. This time it arose from strained dealings with a fellow teacher. She was prescribed antidepressant medication that she took for a confined period of time. The plaintiff continued working at the school, as did the other teacher, and the strains between them were managed, it would appear, by mutual avoidance. The plaintiff did however maintain a good deal of anger arising from this situation which has played a part to the present time.
The plaintiff completed a Graduate Certificate in Educational Studies at the University of Newcastle in March 2006. She then obtained a Masters Degree in special education from the same university in December 2006. The degree specialised in the area of behaviour.
The plaintiff developed a particular interest in assisting released inmates into the workforce. Her discussions with various inmates revealed that their prospects were limited. The plaintiff developed her own programme in which she helped inmates to create CVs and practice interviews. She also took photos of them for use in their CVs, not wearing prison clothing.
In 2006 the plaintiff received a grant from DEC to travel to other corrective facilities to gather information on how they were assisting their students into the workforce.
The plaintiff lobbied both the army and the government to remove the three-year restriction that was placed on prisoners applying to join the army. She was successful and was looking forward to a statewide application of the new policy. One of the students that she helped in this regard was L. As the students were minors at the relevant time I will refer to them with the use of capital letters.
The plaintiff hoped to continue her career with DEC.
The incident
Exhibit B is a plan of the classroom. The 'X's are chairs and the squares on the bench at the bottom of the diagram are computers. Door B was sealed and painted over. The top half of Door A was glass and was transparent. The window above the trestle table was only a window pane. It was transparent and originally provided a view to the corridor. However since the construction of the storeroom the view was only into this room. The space between the sink and the filing cabinet was a little more than the width of a person. The location of the classroom in the school premises can be seen in Exhibit C.
The class commenced at 9am. The students attending on that day were B,C, L and T. L and T had been in the class for most of the year. B and C were more recent. Once the students were in class, as well as the teacher and her aide, the door was locked. Both the teacher and the aide had a key with them.
About 40 minutes after the class commenced the plaintiff was standing near the sink. Ms McDonald, the teacher's aide, was in the position marked by an 'M' in Exhibit B1. The students were in the positions marked in the same exhibit.
The plaintiff was facing the sink. She was looking at her day book. She was aware of one of the students coming towards her, presumably to get a pen or pencil. She then had a perception of a mass of green "coming at me." A fight had broken out between B and C. The plaintiff's immediate reaction was "I don't want to get hurt." She said to Ms McDonald "Hit the duress." She was referring to the duress alarm that members of staff picked up each day as they arrived at work. On this day the plaintiff had omitted to pick up her alarm.
Ms McDonald responded to the plaintiff's direction by saying: "I have, I have." The plaintiff was looking at the door but nothing was happening. She was wondering, "Where the fuck is she" referring to the female DCS officer who was then on duty.
Because no one was coming through the door, the plaintiff felt she needed to get the principal's attention. She began banging on the window above the trestle table and screaming for help. She then became worried about breaking the window and the pieces of glass becoming a weapon available to the combatants. To avoid this possibility the plaintiff carried on screaming and then started to bang on the trestle table. She was calling for help.
The plaintiff's position by the sink meant she was unable to use her key to unlock the door.
It was put to the plaintiff that she had neither banged on the window nor on the table. She was "positive" she had. These actions are not mentioned in the plaintiff's incident report (Exhibit D, Tab 4). Ms McDonald had no recollection of the plaintiff banging on the trestle table and thought that it would have been impossible for her to reach the window.
Based on Exhibit B it does seem to me that it would have been difficult for the plaintiff to reach the window. However I do not think that she made up the allegation, rather that she was in such a state of panic and distress that she believed she took every step to draw attention to the classroom. I also think she probably did bang on the trestle table notwithstanding that Ms McDonald has no recollection of her doing so. The fact that the witnesses outside did not discern any noise distinct from the two women screaming is of little significance. The screaming would probably have drowned out any other noise and it would have been impossible for people outside the room to distinguish the various sounds from each other.
The plaintiff said she was not conscious of the progress of the fight. She was concerned with receiving help rather than the details of the dispute. The next event was that the principal and vice principal opened the door. L pushed one of the fighters out the door. The plaintiff went immediately to the staffroom. She saw no correctional officers either at the door or nearby.
When asked about how much time had elapsed between asking Ms McDonald to press the duress button and the door opening, the plaintiff said about "20 to 30 seconds." Although at face value this is not a long period of time the school staff had an expectation of an immediate response to any emergency that might occur in a locked classroom. The DCS officer stationed at a desk in the corridor alongside the classrooms (see Exhibit B), or patrolling the hallway, was positioned to take swift action.
It is also worth mentioning at this stage there was only one DCS officer on duty within the school premises. This is in contrast to the position prior to 2004 when the facility was operated by the Juvenile Justice Department. It was then the practice for there to be an officer stationed in the classroom together with the teacher and the teacher's aide. I do however note that Mr Foster, the principal, suggested that a single Corrective Services officer was likely to be as effective as the Juvenile Justice officers.
The officer on duty on this occasion was Ms Desley Toohey. She gave oral evidence. Ms Toohey has been a correctional officer for 13 years. She began work at Kariong in November 2004 when DCS took over the facility. She worked throughout the centre and was often rostered in the school. Her duties included escorting inmates to and from the school, checking their possessions and general security. She was also responsible for monitoring security in the classrooms. As long as she had been at Kariong the classrooms had been locked during lessons.
Ms Toohey said that on the morning of the incident she was stationed at the desk that has been marked on Exhibit C. She said that she heard yelling from classroom 3. She looked through the glass section of the door. She saw two inmates in aggressive stances. She said she made a radio call to obtain assistance and then entered the classroom with the vice principal, Mr Damian Chiswick. She found one inmate being restrained and she issued orders for the other combatant to leave the room. He complied.
Ms Toohey said that Mr Chiswick entered the classroom first. I asked her how this could have occurred if she had rushed to the door and looked through the glass section before entering the room. She said it was because Mr Chiswick had arrived first and had his own key. In my view this explanation is inconsistent with her evidence about rushing to the door. It transpired that her evidence was also inconsistent with the evidence of Mr Chiswick and Mr Foster.
It was put to Ms Toohey that she had a conversation with Ms McDonald a few weeks after the incident in which Ms McDonald asked her why it took so long for the door to be opened. It was suggested that she replied that "....it was part of your training that you have to contain the fight, so the door wasn't to be opened because it might get more people involved." (T 176.8).
Ms Toohey said she could not recall the conversation but, after some explanation, agreed that the alleged explanation given to Ms McDonald would be inconsistent with her version of events.
Ms Toohey said that some time after the incident, but on the same day, she completed the incident report that is at Tab 18 of Exhibit D. She conceded that the reference to classroom 2 should have been to classroom 3. Ms Toohey explained that the letters IAT referred to the Immediate Action Team, which was a collection of more experienced officers trained to deal with emergency situations.
Ms Toohey was asked a number of questions about the nature of Kariong Correction Centre. She said it was a maximum security facility in which all inmates were assumed to be dangerous and treated accordingly.
Ms Toohey also explained the duress alarm system. The alarm was positioned on a belt and could be activated by pressing a button. There was also an "officer down" mechanism that was triggered by, for example, an officer falling over. Ms Toohey said that when a duress alarm was activated it would register in the monitor room, indicating both the location of the alarm and the person to whom it had been allocated. The next event would be a broadcast of the need for assistance. This would reach every officer who was carrying a radio.
Ms Toohey was certain that she did not hear a broadcast for assistance following a distress alert on 5 November 2007. A subpoena issued to DCS to produce documents relating to the activation of a duress alarm on 5 November 2007 produced no relevant results.
There were significant differences between the evidence of Ms Toohey and that of two other officers present on the day. They were Mr Willsher and Mr Ryan. Mr Willsher's incident report is at Tab 17 in Exhibit D. The most notable difference is that according to Ms Toohey she remained in the classroom after inmates C and B were escorted out of the education block. However according to Mr Willsher he met Ms Toohey as she was leaving the block and escorting B from the scene. This would have meant that Ms Toohey was leaving the education block unattended by any officer, which was contrary to the procedure in place.
A difficulty with Mr Willsher's incident report is that the first four lines are practically identical to the report of Mr Ryan (Exhibit D, Tab 16). He denied there had been any cooperation in preparation of the reports and suggested the similarity was derived from there, in effect, being a standard form statement. I do accept that officers might be trained to prepare their reports in a particular form but I do not accept that the identical nature of the first four lines of the two reports could be a product of that training. It is also noteworthy that Officers Willsher, Ryan and Toohey all referred to the incident being in classroom 2 and not classroom 3.
Mr Willsher said that he was working in the compound office when the emergency broadcast was made. He said he immediately left the office, went through the unit and then into the "knuckle" and finally into the education block. Notwithstanding that he needed to go through two gates which required being unlocked and then locked he said that the journey took no more than about 30 seconds. I find this evidence very difficult to accept. It is also entirely inconsistent with Ms Toohey's evidence which has Mr Willsher only arriving after the classroom had been unlocked and she had entered with Mr Chiswick. It is of course even more unbelievable if Mr Willsher is correct about seeing Ms Toohey leaving the education block with B. Presumably significantly more time than 30 seconds would have elapsed between the broadcast and Ms Toohey being in a position to be escorting B out of the block.
The evidence of Officer Ryan was generally in accordance with his incident report (Exhibit D Tab 16) which depicts less involvement in the incident. In relation to the nearly identical first four lines of his report with that of Mr Willsher he denied any collaboration, saying instead the most likely explanation was coincidence. I reject this possibility, however do think it plausible that one of the officers may have copied parts of their respective reports from the computer on which the other officer had already entered his report. He did however say that the reason C was escorted to the clinic with Mr Willsher was the potential of C to be dangerous. He was concerned about the safety of the clinic staff.
The various inconsistencies and impossibilities that are contained within the evidence of the DCS officers, in particular between Mr Willsher and Ms Toohey, gives me severe doubts as to their reliability. I also note that Mr Ryan said that B was being escorted from the education block when he arrived, by Ms Toohey. Once again this creates problems with Ms Toohey's version and also suggests that the apparently urgent response to Ms Toohey's call for assistance was not as prompt as alleged.
The evidence of the witnesses employed by DEC enhanced my reservation about some of the evidence of the DCS officers.
The DEC staff that gave evidence were called by DCS. My initial reaction to the evidence of Ms McDonald was that it favoured the defendants more than the plaintiff. This primarily arose from her timing of the period between events. In essence she said that only seconds passed between the fight commencing and Mr Chiswick and Mr Foster opening the door and then, once again, only seconds until Mr Willsher and then Mr Ryan appeared.
It is very difficult for any witness to provide accurate periods of time especially in circumstances such as these. Ms McDonald herself described what was occurring around her as involving a high level of aggression and was frightening. The fight was taking place in very close proximity to her position. Bearing in mind that Mr Willsher had come from the compound office it would be quite impossible for Ms McDonald's estimates to be correct. If one accepts, as I do, that Ms Toohey came to the window and looked in, then made a radio call which prompted Mr Willsher's response, the period of time must have been significantly longer than that posed by Ms McDonald.
Ms McDonald also agreed, under questioning by me, that her positioning of B and C are more likely to be as set out in her statement made on the day of the incident than as described by her in her oral evidence. This concession of itself can be translated into a suggestion of the unreliability of her estimates of time.
Ms McDonald did confirm, in the plaintiff's favour, that the duress alarm was pressed, that the plaintiff was screaming and that Ms Toohey looked through the window but did not enter the room while the combatants were present.
I think on reflection and analysis that the evidence of Ms McDonald provides considerable support to the plaintiff's case. I also note that Ms McDonald did not exclude the possibility of the plaintiff banging on some object to attract attention. She also accepted that she had recently told the plaintiff's solicitor that she had no recollection of what the plaintiff was doing.
It was put to the plaintiff that her incident report (Exhibit D, Tab 4) did not contain any reference to the pressing of the duress alarm. She agreed, but in re-examination said that the purpose of the report mostly concerned the disciplinary action that might be taken against the students. She was particularly concerned that L and T should not be punished undeservedly.
The incident report prepared by Ms McDonald (Exhibit D, Tab 5) does refer to her pressing the alarm. Her statement is consistent with the plaintiff's evidence. It was never put to the plaintiff that Ms McDonald did not say that she had pressed the alarm. In my view this is enough for me to reject any suggestion that the alarm was not pressed. In final submissions counsel for DCS conceded that Ms McDonald had pressed the duress alarm.
In addition to being satisfied that Ms McDonald pressed her duress alarm I also find that there was no response to the alarm. I cannot say if this was because the alarm was not working, was ignored or cancelled by the officer in the monitor room. Whatever the case, it bespeaks a failing on the part of DCS.
Mr Damian Chiswick gave evidence. He was the Assistant Principal. On 5 November 2007 he was seated at his desk in the position he marked on Exhibit B. He said that he heard screaming and he "bolted" to classroom 3. The distance was no more than 15 metres and the journey took him 8 to 10 seconds. When he arrived he saw Ms Toohey about 5 metres away. She was talking on her radio.
Mr Chiswick said he opened the classroom door and entered followed by Mr Foster. He said the plaintiff and Ms McDonald were near the sink. Mr Willsher came in shortly afterwards. When Mr Chiswick was taken to the incident report prepared by Mr Foster he said that he had seen it on the day of the incident and also more recently. He did not disagree with its contents. He was then specifically taken to the passage in the report in which it is recorded that "Damian arrived at the same time as DCS Officers D. Willsher and D. Toohey..." Mr Chiswick said that as he was the first into the room he could only say that he was followed by Mr Willsher. He said that this officer then took one of the students and Mr Ryan took another. He stayed with the two 'innocent' boys.
Mr Chiswick was adamant that Mr Willsher was the first officer to enter the classroom. This is of course entirely inconsistent with the evidence of Ms Toohey. It also means that Mr Chiswick's and Ms McDonald's estimates of time become unreliable because of the length of time it must have taken Mr Willsher to arrive.
Mr Foster also gave important evidence. He explained the relationship with DCS and stated, in terms, that the expectation of DCS was that there would be an immediate response to a situation such as that on 5 November 2007.
His version of the events of the day was that he was in his office when he heard screaming. He immediately left his desk and said to Mr Chiswick, who was in the next-door office, "Did you hear it?" Mr Chiswick was already leaving his office and Mr Foster followed him to the classroom. When he arrived Mr Chiswick had unlocked the door. Ms Toohey was about a metre away, seemingly finishing a conversation on her radio.
Mr Foster said that when Mr Chiswick was unlocking the classroom door he noticed Mr Willsher arriving. At that stage Mr Willsher was opposite the desk in the hallway. On this evidence, again bearing in mind the length of time it would have taken Mr Willsher to arrive (and recalling that he was reacting to Ms Toohey's radio call and not the screaming or a duress alarm), at least 20 seconds, but probably more, must have passed before the classroom door was opened. This estimate is consistent with that of the plaintiff. Without reaching a conclusion stated in exact seconds I think the likely time from the alarm being raised (by the screaming) to the rescue was about 30 seconds.
Mr Foster accepted that teachers faced with the sort of violence that occurred in the classroom could suffer from stress. There was therefore a need to avoid confrontation. He said he understood that similar facts could give rise to a psychiatric condition. He stated clearly that there was an expectation that the corrective services officers would respond immediately to any emergency.
The plaintiff was cross-examined about previous emergency issues that she had witnessed. She said there had been two, one during the administration of the Department of Juvenile Justice and a second while DCS was in charge. In respect of both incidents she said that there had been an immediate response by a department officer, meaning within seconds of the alert being sounded.
The plaintiff also gave evidence of seeing an officer prevent a fight in the playground when he saw a student "shaping up" to assault another student. The obvious difference between all of the previous incidents and the events of November 2007 is that on each previous occasion the relevant officer was able to respond to what he or she saw.
Two other experiences had shaped the plaintiff's perceptions as at November 2007. A visiting colleague told the plaintiff it was important for pencils to be shortened in case they were used as a stabbing weapon. This would limit their capacity to injure (T 31.33).
On another occasion the assistant principal told the plaintiff: "You need to put your seat so you're facing the class because I don't want you to get stabbed." (T 32.23).
In summary I am satisfied that:
(a) As soon as the fight started Ms McDonald pressed her duress alarm. It did not produce a response.
(b) The plaintiff and Ms Mcdonald screamed to stop the fight and attract attention.
(c) When there was no immediate response the plaintiff banged on available surfaces.
(d) Ms Toohey was at her desk. When she heard noise from the classroom she looked through the window and, most likely, saw the fight still in progress.
(e) Ms Toohey made a radio call for assistance. She did not then enter the room.
(f) Mr Foster and Mr Chiswick were alerted by the screaming. They rushed to the classroom. Ms Toohey was using her radio when they arrived at the classroom door.
(g) The door was unlocked by Mr Chiswick. He was the first to enter followed by Mr Foster. Mr Willsher arrived a short time later.
(h) It was in the order of 30 seconds between the fight and the door opening. This was not an immediate response.
After the incident
The plaintiff went to the staffroom. She felt severe chest pain. She thought this was due to her screaming. When it did not subside she became concerned about her heart. She saw her general practitioner, Dr Vella, who carried out tests, which excluded any cardiac problem.
The plaintiff returned to work on the day after the incident. She was distressed. She tried again the following day but did not last through the morning. She has not returned to work since.
The plaintiff commenced seeing Dr Butler, a psychiatrist, on 18 February 2008. There is a report from him dated 3 February 2009. In this report he says that the plaintiff "has not responded well to various antidepressant medications, nor to intensive cognitive behaviour therapy with her psychologist, Margaret Gjerdum." The doctor then thought that the plaintiff had a poor prognosis for recovery and suggested that she be referred to HealthQuest for an assessment in respect of a medical discharge.
Ms Gjerdum provided a report dated 19 January 2009. She first saw the plaintiff on 13 November 2007. She is the same psychologist that the plaintiff saw in 2005 when she had difficulties with her fellow teacher. She records that the plaintiff had excessive side effects to antidepressant medication and preferred to rely on an exercise program and sessions with the psychologist. Ms Gjerdum observed that the plaintiff "remains extremely unwell, with poor presentation and diminished capacity to perform even simple routine self-care activities. She is unable to return to her previous occupation of teaching and is currently too unwell to perform alternative work activities."
Ms Gjerdum also recommended that the plaintiff be referred to HealthQuest. She said that the plaintiff's "sense of hopelessness about her future is inextricably tied to her fear of returning to her former work/employer and to her sense of an uncertain future."
The plaintiff lost confidence in Dr Butler and eventually commenced seeing Dr Short in May 2009. She remains his patient, now seeing him twice a week. His diagnosis is one of Post Traumatic Stress Disorder ("PTSD").
Dr Short provided a number of reports that can be found in Exhibit E. In addition he gave oral evidence. Dr Short's evidence was particularly important to causation under Section 5D of the CLA. This was because of the emphasis in the plaintiff's case of the delayed reaction to the emergency. It seemed to me important to be able to distinguish between the overall event being the trauma that led to the diagnosis of PTSD and the diagnosis being a product of a delayed response. In other words if the plaintiff would have suffered PTSD even if there had been an immediate response then the plaintiff's case, on causation, would have been difficult to sustain. It is important to recollect that the onus is always on the plaintiff (CLA, Section 5E).
My view is that, firstly, based on Dr Short's evidence, the delayed response was a necessary ingredient in the development of the PTSD. Secondly the plaintiff's case goes beyond the failure to react immediately to the alarm. The plaintiff's case includes an allegation of an unsafe system of work which must include a reliable duress warning system. If Ms McDonald pressed the duress alarm and it produced no result that must indicate a failure in the system and a cause for delay. The chronology of events suggests that Ms McDonald immediately pressed the duress alarm. If that produced no result there was necessarily a period of time before the event (probably persistent screaming or banging) that did produce a reaction.
Returning to Dr Short's evidence (including his reports) I particularly note the following:
(a) In his report dated 15 August 2011 Dr Short said: "The more she called and the greater the delay, the more entrenched her symptoms inevitably became."
(b) T 131.45:
"Q. From everything that you have observed about Mrs Hall and everything that you have read about her and from your own examination of her, do you have the view as to whether or not she was a person of normal psychological fortitude prior to the events of November 2007?
A. Yes, I do.
Q. What is your view?
A. My view is, perhaps with the exception of his Honour, everyone in this room has some sort of dodgy elements to their personality and we all have vulnerabilities, but they don't reach the criteria for a psychiatric disorder. With our funny little ways, we can still live, laugh, work effectively, and I have every reason to believe that Mrs Hall did just that."
(c) T 147.6:
"Q. Let me get it exactly to the point. Let's say everything occurred as she's described it to you except for one difference. The officer outside or even somebody outside realised something was going on and reacted within ten seconds or five seconds, straightaway, as soon as possible, would that have me a difference?
A. Could that have been sufficient to produce a post-traumatic stress disorder in a person?
Q. In this person?
A. Yes, but not her particular manifestation, but a post-traumatic stress disorder. Could she have ended up with a classical constellation of symptoms with merely an exposure, yes, of course. But if I might respectfully suggest there is what we might describe as a particular syndrome. When you become depressed or I become depressed, we may have identifiable depressive illnesses, but you and I may manifest them differently. So the total package within which we find her cannot be confined to having occurred within the prescribed ten seconds.
Q. Is this your way of saying - I'm being polite, don't worry. Is this your way of saying that the patient you now see is a product of all of those ingredients?
A. Of all the ingredients and more; all the ingredients you describe and more.
Q. That's the anger that Mr Roberts was talking about.
A. It is indeed, yeah."
(d) T 147.49:
"Q. If it's the fact that she had been rescued in a way which she regarded as urgent and timely, what is your opinion as to the likelihood that she would have developed the same injury; that is, she would have been disabled and developed a condition of PTSD to the extent that she has?
A. As I said in the answer I gave before, I am confident she would not be in this state without the element of anger, the evolution of the state required the helpless anger that she experienced.
Q. Then on the assumption that the hypothesis which his Honour asked you about occurred, that is there was the locked room, confined space, dangerous inmates, a fight and a timely rescue, are you able to say what is the likely resultant damage or injury if any that she would have suffered?
A. This is a bit risky. I think she's such a robust person and so intent on being effective. In any event she might have developed a post-traumatic stress disorder, she might not have developed. I'd be willing to venture - I'll stick my neck out - that she might not have developed a post-traumatic stress disorder at all during the confined - within the confines of his Honour's definition I think because she's such a determined person, but it's the helplessness of the anger that put the icing on the cake, so to speak."
I take the following from Dr Short's evidence (including his reports):
(a) The plaintiff was a person of normal psychological fortitude. It was not submitted otherwise.
(b) The plaintiff's anger as a result of her interaction with the other teacher plays a greater part in her ongoing condition than she admitted to in evidence. It was also of more significance to her daily functioning prior to the incident than her evidence allowed.
(c) Notwithstanding the just stated conclusion, the anger in relation to the other teacher was not a factor in the development of her PTSD and of the symptoms from which the plaintiff continues to suffer. I am satisfied her condition is a product of the incident on 5 November 2007. This finding meets the 'but for' test posed by Section 5D of the CLA.
(d) The anger concerning the other staff member does play a part in the plaintiff's ongoing symptoms but it is minor. The defendants conceded that the part it played should not produce any reduction in damages.
My initial reaction to Dr Champion's reports (Exhibit DCS 1) was that he had taken an overly critical view of the plaintiff coming to a conclusion about her sincerity which was not merited. This was exemplified by his comments on her jiggling her leg during examination, a factor that was not assessed by any other expert as suggestive of malingering. It was also put in the plaintiff's opening that Dr Champion had expressed a view that the plaintiff was feigning her symptoms.
Having heard Dr Champion give oral evidence (over the telephone) I have come to a different view about his opinion. I do not think he was suggesting malingering nor do I think he was putting forward a diagnosis that said no part of the plaintiff's injury was caused by the November 2007 incident. Rather the way I understood Dr Champion was that he believed that at best the plaintiff had suffered an Adjustment Disorder and that such a disorder would have resolved a long time ago. He also thought that if the correct diagnosis was PTSD then resolution of the condition was overdue.
I also thought that Dr Champion accepted the expressions of anger displayed by the plaintiff as genuine but did not think that this anger had produced the disability alleged by the plaintiff, extending to her not being capable of full-time employment.
Dr Champion, as he was bound to do, accepted that "Dr Short's clinical opinion is assisted by the fact that he has seen her on numerous occasions over a period of five years?" (T 191.15)
I prefer Dr Short's opinion where it is different to that of Dr Champion. It seemed to me to more fully reflect the impression I had formed of the plaintiff but, much more importantly, was a product of very long-term course of treatment of the plaintiff compared to the one consultation with Dr Champion.
I also think that Dr Short's opinion is consistent with that of Dr Gertler (Exhibit H). Although the two doctors give a different specific psychiatric diagnosis they both conclude that as a result of the incident on 5 November 2007 the plaintiff has suffered a severe psychiatric injury. Dr Gertler's finding of a whole person impairment of 19% suggests a particularly profound psychiatric disturbance.
I note here that neither defendant suggested the plaintiff had not suffered a "recognised psychiatric illness", as required by Section 33 of the CLA.
Writing in June 2009 Dr Gertler concluded that the plaintiff was suffering "from a chronic major depression characterised by a pervasively lowered mood, easy cheerfulness, social and emotional withdrawal, disturbed sleep, problems with concentration and memory, and recurrent distressing images of being harmed." Dr Gertler said the prognosis for the major depression was guarded.
In relation to causation he said: "Ms Hall's circumstances of employment, in particular the incident of 5 November 2007, were in my opinion a substantial contributing factor to the development of the chronic major depression."
Returning to the plaintiff's evidence, she described her general mood as very low. This was reflected by the manner in which she gave evidence in the witness box. Her tone was flat, she was quietly spoken and sometimes tearful. I have no reason to doubt the sincerity of her demeanour.
The plaintiff said that she had tried many antidepressant medications but these had failed due to their side effects. These included dehydration, insomnia and headaches. Her sleeping problems were now under control. She took Tamazepan and Zanax to help her sleep.
The plaintiff said that she was often frightened and startled. She cried easily and could not participate in her normal social contacts. This was not due to any physical inability but rather was due to an overwhelming sense of "not being bothered". The compelling impression I had of the plaintiff was that she simply could not summon the energy to go about the tasks, whether at work or at home, that she participated in prior to the incident.
Unusually for a plaintiff, she said that she was not a fastidious housekeeper before the incident. She said that the house was never dirty but that at present some tasks were simply not done. For example the windows had not been cleaned for about two years. The plaintiff did not say that her husband, or anyone else, had taken over every element of her domestic tasks. In fact she said that, as far as cooking was concerned, she now relied on canned products and takeaway chickens.
The plaintiff said there were occasions, such as going shopping with her daughter or attending a party when she could appear happy. On these occasions the plaintiff said that she felt like "a wind up toy." She said she made a concerted effort not to allow her children or friends to be aware of her predicament although it had become apparent to her that they knew of at least some of her difficulties.
Dr Short had referred her to a Dr Linden for a second opinion. This doctor suggested electro convulsive treatment. The plaintiff recently consulted a Professor Mali to further investigate this option.
The plaintiff described feelings of anger and agitation. These were combined with feelings of guilt because she had not recovered and her relationship with her husband was now "terrible."
There was almost no cross-examination of the plaintiff's complaints about her condition since November 2007. She was not challenged about her feelings of anger, despondency or lack of motivation. She was not challenged about her failure to socialise or interact with her family and friends.
The plaintiff's husband gave evidence corroborating all of his wife's evidence about her moods and activities since 2007. He also said that prior to the incident his wife had been outgoing, social and very active. He described the previous occasions when she had seen a doctor about depression as being short lived.
Mr Hall gave evidence about domestic activities that he had taken over. He said he was doing about 3 to 4 hours of extra activity per week, which would be increased to 6 to 7 hours if outside activities were included. He also said that his daughter, Bridey, assisted her mother on a weekly or fortnightly basis until October 2012 when she moved to Queensland. He said that prior to the move she would assist for five or six hours on each occasion that she attended. He said that Bridey still travelled from Queensland from time to time to assist.
Mr Hall was not cross-examined at all. I did ask him whether following his retirement in October 2010, but for his wife's condition, he would have assisted her more given that he had extra free time. He agreed that there would have been an element of contribution but not very much.
Ms Susan Morris was called to give evidence on behalf of the plaintiff of a 'before and after' nature. When I pointed out to counsel that there had been no challenge to the evidence of the plaintiff or her husband about her condition since November 2007 no further questions were asked of Ms Morris.
Liability
Both defendants accepted that they owed a duty of care to the plaintiff. The employer's duty is non-delegable. The circumstances that existed in this case enhanced the duty in respect of both defendants.
This was because the plaintiff was working with inmates, perhaps teenagers, but nevertheless adult sized and in a maximum security institution, and she was required to carry out her teaching in a locked room without the presence of a security officer.
Other background factors include the Memorandum of Understanding between the defendants (Exhibit D, Tab 1). Under this memorandum the DCS was obliged to "provide a safe and secure working environment". It was obliged "to ensure that systems and procedures are in place to respond to and recover from emergency situations" and "to ensure that emergency plans and procedures are communicated to all DCS and DET staff".
The DEC was obliged "to document risk management plans and communicate them to relevant staff" and "to actively supervise and manage student behaviour during the delivery of DET programmes".
In order to succeed the plaintiff must first satisfy the provisions of Section 5B of the CLA. DCS conceded that this would be accomplished if I were satisfied that there had been an unreasonable delay in the response of its staff to the incident. I have already dealt with the likely period of time that passed before the door was opened. In my view this was an unreasonable length of time. In addition, and perhaps not a necessary exercise because of the above concession, for purposes of Section 5B I am satisfied of the following:
(a) The risk of harm to a person locked in a classroom with high security inmates who have a fight is foreseeable.
(b) This risk was not insignificant.
(c) A reasonable person would have taken precautions against the risk.
In relation to Section 5B(2) I am satisfied that there was a significant probability that serious harm would occur in circumstances such as those faced by Mrs Hall. In addition, the burden of taking precautions to avoid the risk of harm was accepted by both defendants, as demonstrated by the Memorandum of Understanding, but was not implemented in respect of the response to the emergency.
In relation to causation, I have already dealt with this issue but repeat my finding that I am satisfied that but for the failure of Ms Toohey to respond urgently and the failure to respond over some 20 to 30 seconds, the plaintiff would not have suffered the PTSD which now dictates her condition.
It follows from the above that I am satisfied that there has been a breach of duty of care by DCS within the scope of Section 5B and that this breach has caused the plaintiff's injury. As conceded by Mr Roberts SC, on behalf of DEC, I am also satisfied that DEC was in breach of its non-delegable duty to the plaintiff. In addition, I am satisfied that there were acts of negligence on the part of the employer which included the reliance of the principal depending on DCS to do what it was obliged to do. Mr Roberts conceded that this reliance was misplaced.
I do not think Section 32 of the CLA assists DCS. Firstly, the evidence, as stated above, was to the effect that the plaintiff was a person of normal fortitude. Secondly, the foreseeability requirement in this section relates to a person, but not the plaintiff, of normal fortitude. The evidence was plain and it must be the case, that a person of normal fortitude might suffer a recognised psychiatric injury if placed in the circumstances faced by Mrs Hall and reasonable care was not taken.
It is necessary for purposes of Section 151Z(2) of the WCA that I make a finding about the percentage responsibility of the employer compared to that of DCS.
The plaintiff and DEC said the split should be 80-20, the latter being DEC's contribution. The following matters were pointed out in support of this assessment:
(a) DCS had resumed responsibility for security under the Memorandum of Understanding.
(b) DCS had designed the system.
(c) The system had only one officer in the school.
(d) This system was accepted by DEC on the basis that it would provide an immediate response.
(e) DCS had complete control of the plaintiff's safety.
DCS submitted that the split should be more like equal and certainly not more than 60-40 in DEC's favour.
In my view the factors outlined above all create a compelling case for the apportionment as advocated by the plaintiff and DEC. However, DEC, under the Memorandum of Understanding, also had obligations and these must be viewed as an addition to the very high standard of care required by an employer in ensuring the safety of its employees. For this reason I think the suggested 20% is too low and that the correct percentage should be 30%.
Quantum
The plaintiff's assessment of damages against the DCS was as follows:
| Non-economic loss (40% of a most extreme case) | $214,000 |
| Past out of pocket expenses | $110,731 |
| Future out of pocket expenses | $156,260 |
| Past economic loss | $348,102 |
| Future economic loss | $233,785 |
| Past lost superannuation benefits | $40,032 |
| Future lost superannuation benefits | $26,885 |
| Past domestic assistance | $57,200 |
| Fox v Wood | $21,756 |
In respect of DEC the submitted assessment was the following:
| Past economic loss | $348,102 |
| Future economic loss | $233,785 |
| Past lost superannuation benefits | $40,032 |
| Future lost superannuation benefits | $26,885 |
| Fox v Wood | $21,756 |
The parties agreed that workers compensation payments to date amounted to $304,371. This was made up of weekly payments of $145,040, treatment expenses of $110,731 and a lump sum payment of $48,600.
DCS conceded the quantum of all of the above heads of damages besides non-economic loss and future out of pocket expenses. DEC conceded the whole of the quantum alleged against it.
In relation to non-economic loss I think the plaintiff's assessment of 40% of a most extreme case is too high and is even outside "the range". I think DCS's suggestion of 15% is below the range. I do accept the plaintiff's life has been significantly affected, that she has been unable to work and she spends most of her time in a depressed mood without the motivation to carry out even basic tasks. On the other hand she is not entirely without a sense of humour, she is able to travel, to go out and to interact with her children. She is having intensive treatment but she has not been hospitalised nor is there a suggestion of that occurring in the future. In my view 25% of a most extreme case is appropriate. This equates to a figure of $35,000 under Section 16 of the CLA.
The plaintiff's submission for future out of pocket expenses is based on two visits per week to a psychiatrist at $325 per visit for the next year and then a fortnightly visit for the balance of the plaintiff's life expectancy of 25 years. DCS accepted the treatment over the following year but said that thereafter the suggested regime should not extend for more than 10 years. Dr Short said he could not predict the likely future need for treatment and thought that at present the plaintiff's condition was perhaps slightly improving but generally only being maintained.
There is no doubt, however, both from the plaintiff's evidence and that of the doctor, that the conclusion of legal proceedings will greatly assist the plaintiff in dealing with her predicament. As Dr Short said, it is unusual for there to be such intensive treatment over a long period of time. For this reason I agree with the defendants' suggestion of a further 10 years of fortnightly visits. It also seems to me that visits, if progress was made, would be likely to decrease to less than fortnightly. Thus even if I am wrong on the 10 years the figure does allow for a further period but at greater intervals between consultations. The calculation, including deferment for one year, is as follows: 162.5 x 412.9 x .952 = $63,875.63.
The assessment of damages against DCS is therefore as follows:
| Non-economic loss (25% of a most extreme case) | $35,000.00 |
| Past out of pocket expenses | $110,731.00 |
| Future out of pocket expenses | $63,875.63 |
| Past economic loss | $348,102.00 |
| Future economic loss | $233,785.00 |
| Past lost superannuation benefits | $40,032.00 |
| Future lost superannuation benefits | $26,885.00 |
| Past domestic assistance | $57,200.00 |
| Fox v Wood | $21,756.00 |
| Total | $937,366.63 |
The total of the damages I have assessed against DCS is $937,366.63.
The total of the damages assessed against DEC is $670,560. This figure must be reduced by the weekly compensation payments of $145,040, producing a result of $525,520.
In order to arrive at the verdict sums I need to apply Section 151Z(2). The parties agreed that I should proceed in the following way:
(a) Calculate the damages against DCS ($937,366.63).
(b) Calculate the damages against DEC ($525,520).
(c) Work out the difference between the above two assessments ($411,846.63).
(d) Calculate the fault of DEC as a percentage (30%).
(e) Apply this percentage to the difference between the two assessments of damages ($123,553.98).
(f) Reduce the assessment of DCS' damages by the sum produced in step (e) above ($937,366.63 - $123,553.98 = $813,812.65).
The verdict sum against DCS exceeds the court's jurisdiction of $750,000. There is no Memorandum of Consent to Extended Jurisdiction. However, DCS has conceded that the plaintiff is entitled to the extra jurisdiction derived from Section 51 of the District Court Act 1973.
Final orders
In Proceedings No 2010/347906 (Plaintiff v Department of Corrective Services):
(a) Judgment for the plaintiff for $813,812.65
(b) The defendant is to pay the plaintiff's costs of the proceedings.
In Proceedings No 2011/152206 (Plaintiff v Department of Education and Communities):
(a) Judgment for the plaintiff for $525,520.00
(b) The defendant is to pay the plaintiff's costs of the proceedings.
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Decision last updated: 21 May 2013
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