Hardy v Qld Corrective Services Commission
[2000] QSC 10
•25 January 2000
SUPREME COURT OF QUEENSLAND
CITATION: Hardy v Qld Corrective Services Commission [2000] QSC PARTIES: TERRENCE CYRIL HARDY
(Plaintiff)
vQUEENSLAND CORRECTIVE SERVICES COMMISSION
(Defendant)
FILE NO: 4719 of 1996 DIVISION: Trial Division DELIVERED ON: 25 January 2000 DELIVERED AT: Brisbane HEARING DATE: 18, 19, 20, 21, 22, 25, 26 October 1999 JUDGE: Helman J. ORDER: Judgment for the defendant. Order that the plaintiff pay to the defendant its costs of and incidental to the action, including reserved costs, to be assessed. CATCHWORDS: NEGLIGENCE – ESSENTIALS OF ACTION – action for damages for a mental disorder suffered by the plaintiff while employed by the defendant.
LIMITATION OF ACTIONS – PERSONAL INJURY CASES – incidents alleged in statement of claim statute-barred after the limitation period of three years has expired.
Limitation of Actions Act 1974, s. 11
Adams v. Ascot Iron Foundry Pty Ltd (1968) 72 S.R. (N.S.W.) 120
COUNSEL: G. B. Hall Q.C. with him P. J. Woods for the plaintiff
D. O. J. North S.C. with him M. T. O’Sullivan for the defendantSOLICITORS: Lehns Solicitors for the plaintiff
Crown Solicitor for the defendant
HELMAN J.: On 21 December 1993 the plaintiff, then fifty-one years old, was employed by the defendant as a middle-management prison officer at a prison called Lotus Glen Correctional Centre at Mareeba, Queensland. At 8:30 a.m. he attended a meeting at the prison of senior staff, of whom he was one. It was the practice to have such meetings every day. Staffing levels were discussed. Overtime had been allocated in one area of the prison when there were officers in another area which could have eliminated the necessity for the overtime. The plaintiff said in evidence he ‘made [a] comment’ about that to an officer senior to him, Mr Paul Gallagher, the manager operations. Mr Gallagher replied to the effect that the overtime roster would remain unaltered. The plaintiff then said ‘If that’s the way you are going to run the correctional centre, then you can run it without me’. He walked out of the meeting, collected his personal belongings, left the prison and did not ever return.
The plaintiff’s employment with the defendant was officially terminated on 1 December 1995, and he has not been in any other paid employment since the day of the meeting. That day he signed an application for workers’ compensation (exhibit 33) in which he asserted that he was suffering from an injury he described as ‘STRESS/DEPRESSION’ for which the following people were to blame: ‘CORRECTIONAL DIRECTORS, MANAGERS, PEERS, SUBORDINATE STAFF’.
The plaintiff began this action by a writ issued on 7 June 1996 in which he claimed from the defendant damages for ‘negligence, breach of statutory duty and/or breach of contract in respect of [his] employment with the defendant’. In paragraph 6 of the plaintiff’s amended statement of claim three ‘incidents’ are alleged to have been caused by the ‘negligence and/or breach of duty and/or breach of statutory duty’ of the defendant by its servants or agents in that it or they:
(a)failed to ensure that enough experienced staff were employed;
(b)failed to ensure that the Plaintiff was not required to work excessive overtime;
(c)failed to remove some of the duties required of the Plaintiff when he first started to suffer from work related stress;
(d)continued to have the Plaintiff act in higher duty positions after he first started to suffer from work related stress;
(e)failed to transfer the Plaintiff to a less stressful position when he first started to suffer from work related stress;
(f)failed to provide competent supervision;
(g)failed to ensure there were proper instructions when changes to regulations, restructuring and reorganisation were introduced to ensure there was a minimum of frustration and confusion;
(h)in breach of S.9 of the Workplace Health and Safety Act 1989-1990 failed to ensure the health and safety of the Plaintiff at work;
(i)failed to take any or any adequate steps to ensure that the Plaintiff did not continue to work in positions that exacerbated the work related stress he was suffering;
(j)otherwise failed to exercise reasonable care in respect to the health and safety of the Plaintiff;
(k)failed to establish and maintain a safe system and place of work;
(l)failed to adequately prepare, instruct, counsel, warn or educate the plaintiff in relation to the possible incidence of psychological disorder flowing from stress;
(m)created a dangerous and stressful environment in which the plaintiff was required to work under bad management practices;
(n)failed to provide any or any adequate training or instruction to the plaintiff and his fellow employees;
The three incidents are set out in paragraphs 3, 4, and 5 of the amended statement of claim:
3.On or about February 1991 the Plaintiff was diagnosed as suffering from work related stress causing him to have 32 days off work.
4.On or about February 1992 the Plaintiff was again diagnosed as suffering from work related stress causing him to consult the prison psychologist and a psychotherapist through the work-based Interlock assistance programme and to be placed on anti-depressant medication.
5.On or about 21 December 1993 the Plaintiff suffered a breakdown and ceased working.
In paragraph 7 of the amended statement of claim it is alleged that the ‘injuries’ sustained by the plaintiff ‘included a major depressive disorder, recurrent major depressive episodes and generalised anxiety disorder’. There is no express allegation that the injuries were caused by a wrongful act or wrongful acts of the defendant, but no point about that was taken at the trial, and in any event it is clear enough that that allegation is necessarily implied in the way in which the plaintiff’s case was pleaded and conducted at the trial. Should an amendment to the plaintiff’s pleading be thought necessary I should invite an application to permit it even at this late stage.
The defendant in its defence denies any liability to compensate the plaintiff and, further or in the alternative, pleads that the plaintiff’s cause of action arising out of the incidents alleged in paragraphs 3 and 4 of the amended statement of claim, and arising out of incidents which took place before 7 June 1993, is statute-barred. It relies on s. 11 of the Limitation of Actions Act 1974, which provides for a period of limitation of three years for actions for damages for negligence or breach of duty in respect of personal injury.
The plaintiff was born in England on 30 August 1942. He finished school in July 1957, and after that completed a five-year apprenticeship as a mechanic. He worked in England as the manager of a concrete facia block production line, a supervisor for a tyre company, and a production inspector and quality control supervisor for a sports car company. He married in 1965 and emigrated to Australia with his wife and two children in 1975.
On 6 October 1975 the plaintiff began employment as a prison officer with the Queensland Prisons Department. He was dux of a four-week course at the Staff Training School, Wacol. The assessment of his performance at the course was that he did not appear at first to be ‘anything outstanding’, but, as the course progressed, it became obvious that he was ‘an intelligent person and possessed of an urgent drive to succeed’ and should, with ‘[p]rison experience’, develop into ‘a very satisfactory officer’. In August 1988 he was promoted to the position of senior prison officer. At all times relevant to this action officers of the prison service employed in a prison were in three tiers. At the top was the management tier, below that was a tier of middle managers, and at the bottom there were the prison officers and the rank above, the senior prison officers. The plaintiff began work as a prison officer, and, as I have related, was promoted after nearly thirteen years to the rank of senior prison officer. Although the names of some of the positions changed after 1988 the three-tier structure remained the same throughout the relevant period. More details of the structure can be seen from exhibits 13 and 14.
Beginning in 1988 substantial changes were made to the Queensland prison system following acceptance by the Queensland Government of a report recommending changes thought to be desirable. New prisons were built and some existing prisons were closed. The defendant replaced the Prisons Department as the employer of prison service officers. A new ‘philosophy’ was devised for the prison service.
In 1989 the Lotus Glen prison was opened. By a letter dated 21 February 1989 from the acting manager personnel of the defendant the plaintiff, who was employed at the Sir David Longland Correctional Centre at Wacol in a position by then designated senior custodial correctional officer, was notified that he had been promoted to a middle management position of chief custodial correctional officer operations at the Lotus Glen prison. His appointment was to take effect from the date of entry upon duty and was subject to a probationary period of six months.
The plaintiff took up his new position in February 1989, but the first prisoners did not arrive until April 1989. Before their arrival there was a five- or six-week training course for the staff, many of whom had not had previous experience as prison service officers. (The plaintiff said the course was for six weeks, but Mr Richard Lewis, who was a prison officer at Lotus Glen from March to December 1989, said five weeks.) After the training course, practices were held: ‘dry runs’ when officers practised by role playing. Lotus Glen was not filled to capacity in April 1989. There was a staged increase in the number of prisoners sent there until its capacity was reached. Furthermore the first prisoners to arrive were thought to be unlikely to cause disruption. More difficult prisoners arrived later.
There was a confidential report dated 8 September 1989 to the general manager of Lotus Glen concerning the plaintiff’s performance in the first six months in his new position. The report, favourable to the plaintiff, was signed by two people who had occupied the position of manager operations.
Financial security was very important to the plaintiff. In a letter dated 17 January 1994 from Dr Mark Bestmann, general practitioner of Mareeba whom the plaintiff consulted, to Dr Johnpeter Rigano, consultant psychiatrist of Cairns, Dr Bestmann recorded the plaintiff’s saying that he had never enjoyed the job of prison officer, but had continued in it ‘for financial security and also in the hope as he worked his way to the top he could make the system better’. By late 1989 proposed organizational changes in the prison service put the plaintiff’s future with it under threat, in spite of his recent promotion and the favourable report of 8 September 1989. It had been decided that the position of chief custodial correctional officer was to be phased out and replaced by a new middle management position designated ‘operations support officer’. There would be an increase in remuneration, but the change meant that a chief custodial correctional officer would not automatically be appointed to the new position, but would be required to apply for it. There was no guarantee that a chief custodial correctional officer would be appointed to the new position, and, if unsuccessful in applying for it, such an officer faced the possibility of compulsory retirement from the service – ‘involuntary redundancy’ in bureaucratic language.
In December 1989 the plaintiff went to Brisbane to see Mr Peter Rule, human resources manager of the defendant, about the phasing-out proposal. The plaintiff went on his own behalf and as the representative of the other chief custodial correctional officers at Lotus Glen. He sought an early end to the uncertainty caused by the proposal, but was disappointed because the uncertainty continued throughout 1990 and 1991 and into 1992.
On 4 February 1991 the plaintiff consulted Dr Murray Towne in Mareeba. The plaintiff had lost weight, had had difficulty sleeping, had vomited regularly, and had suffered from diarrhoea. He then went to Brisbane to be tested for cancer, but the tests proved negative. He said in evidence he was absent from work for fifty-four days, but it was probably only thirty-two days. In paragraph 3 of the amended statement of claim the allegation is ‘32 days off work’. Thirty-two ‘sick days’ are mentioned in a typed statement signed by the plaintiff dated 6 October 1993 (exhibit 28), ‘32 days sick leave’ are mentioned in a copy of an unsigned typed statement by the plaintiff dated 8 November 1993 (exhibit 29), and ‘32 days off work’ are mentioned in a copy of an unsigned typed statement by the plaintiff dated 12 January 1994 (exhibit 34). The discrepancy between the plaintiff’s oral evidence and the previous statements is of no great moment, but it is consistent with his exaggerating on another matter, overtime, to which I shall refer later.
The plaintiff returned to work for the remainder of 1991, but by late in the year began ‘getting emotional’ and crying in front of senior officers two or three times a week. The uncertainty about his position was still causing him and the other officers of his rank anxiety. On 1 October 1991 Mr Thomas Lane, general manager of Lotus Glen, requested urgent advice in writing about the new positions in a memorandum (part of exhibit 10) to the defendant’s director of corporate services. The delay had ‘caused officers preforming the duties of Chief Custodial Correctional Officer at [Lotus Glen] to be disadvantaged both in the pecuniary and emotional sense as several appointments to identical positions have already been made at Centres in South East Queensland’, Mr Lane wrote, adding ‘[a]ny endeavours which will expedite this matter would be appreciated’. In spite of that entreaty and other expressions of support for the chief custodial correctional officers by Mr Lane, the matter had still not been resolved in February 1992.
The plaintiff received a memorandum dated 14 February 1992 from Ms Brooke Winters, senior adviser human resources employed by the defendant, concerning the chief custodial correctional officer positions:
In reference to our recent conversation regarding your future employment options with the Commission. As you are aware the position of Chief Custodial Correctional Officer is being replaced with the positions of Operations Support Officer, Programs Officer and Security/Intelligence Officer. As with any reclassification and redesignation of positions it is a requirement that “new” positions therefore be advertised. Human Resources is very much aware of the uncertainty that this will cause for some people. The implementation plan submitted by your General manager has not been approved yet, therefore the position cannot be advertised immediately. It is not possible at this stage to specifically confirm your future position with the Commission as this will depend on which course of action you wish to take. I will attempt to clarify this situation as much as possible.
Options available to you at this time are:
1.that you apply for the new chief’s position when advertised;
This will result in you either being successful or unsuccessful. If you are unsuccessful in gaining a position you will then be:
a.considered for redeployment by the Commission [the Commission will be committed to attempting to find you another position within 26 weeks]. The Commission is committed to redeploying surplus personnel first and thereby this policy applies ahead of the redundancy policy.
or
b.depending upon number of positions available you may be considered for VER – voluntary early retirement [the VER Scheme is not always available and it is unknown if it will be available to Lotus Glen employees]
If another position by redeployment is unable to be found for you, you may be offered:
c.involuntary redundancy [conditions for package available would not be determined until such time as positions were declared redundant]
2.you do not apply for the new chief’s position when advertised;
In this case points 1a. 1b and 1c would also apply.
Again I can only reiterate that the Commission is committed to redeployment of staff with redundancy considered to be a last option. The decision is now yours as to whether you apply for the new positions when advertised.
That memorandum did not diminish the plaintiff’s concern for his future and his anxiety increased. Further correspondence passed between him and Ms Winters to which I shall refer later.
Mr Darryl Maybery, prison psychologist at Lotus Glen from May 1991 to the end of October 1992, sent a memorandum dated 17 February 1992 to the manager programs at Lotus Glen recommending that the plaintiff be referred to an organization called Interlock:
Over the last two weeks I have had discussions with Terry Hardy regarding concerns he has been having regarding his position at Lotus Glen and his long term future with the Queensland Corrective Services Commission.
I suggest that he is experiencing a great deal of stress at the current time with the restructuring of his position and role at the centre. Further to this I suggest that he may be suffering from and becoming more depressed as time goes on. Consequently, I propose that he be referred to the Interlock organisation for further ongoing and more indepth counselling services.
Interlock had been retained by the defendant to provide, when necessary, confidential counselling to its employees by qualified psychologists and social workers. It was separate from, and independent of, the defendant. Mr Maybery’s recommendation was accepted and the plaintiff soon began seeing an Interlock counsellor.
Beginning in December 1991 the plaintiff had frequently cried when talking to Mr Maybery: six or seven times in one month. He was ‘emotional’ on each occasion. (Although Mr Maybery was not employed as the staff psychologist, but rather as the psychologist to the prisoners, staff members, including the plaintiff, did discuss their problems with him.) In discussions with Mr Maybery at the end of 1991 the plaintiff conveyed ‘his fear of redundancy and his position in the Centre and having a job’. He complained ‘about the Commission not being very speedy in its resolving the issue of what job he was going to have, the future, and what his position was going to be’. Mr Maybery could not remember ‘specifically’ any complaints to him about ‘the management side’, but the plaintiff did also express concern ‘about him being the meat between the sandwich having to put in place decisions that were made by management of the gaol’.
When Mr Maybery arrived at Lotus Glen the plaintiff reminded him very much of a sergeant-major in the army: the plaintiff was quite strict and strong and rigid in his personality and style. ‘He was classic’, Mr Maybery said in evidence, but the plaintiff’s personality was such that it was hard for him to cope with change. Mr Maybery made notes in his diary of having spoken to the plaintiff on 7 and 12 February 1992 and soon after – on 17 February 1992 as I have mentioned – decided to refer him to Interlock. Coincidentally, on the same day Mr Maybery referred Mr Gallagher, with whom the plaintiff had the disagreement at the meeting on 21 December 1993, to Interlock.
The plaintiff’s mental state deteriorated rapidly in February 1992. On 18 February, following an incident involving him and another officer, he left the prison to ‘re-gather’ and ‘recoup’ himself. Later he returned to the prison, but that night when his wife was out he rigged up a rifle with a string attached to the trigger intending to shoot himself. He did not go through with it because, he said, he could not ‘understand’ who was going to clean up the mess.
On 19 February 1992 the plaintiff consulted Dr Bestmann, who found symptoms of a moderately severe endogenous depression. Dr Bestmann counselled the plaintiff and prescribed the anti-depressant drug Prothiaden. On 24 February the plaintiff consulted an Interlock psychologist, Mr Charles Walsh, but two days later suffered a severe blow when he learnt that a brother had committed suicide on 25 February. By February 1992 the plaintiff had gone from what Mr Maybery called ‘a very strong character’ to ‘almost a shell of a man in some ways’. The plaintiff’s learning of his brother’s suicide was, as Mr Maybery described it, ‘the straw that broke the camel’s back’.
The plaintiff’s anxiety about his future in the prison service continued. He sent a letter dated 26 February 1992 to Ms Winters in which he made a number of enquiries. He ended by stressing that his enquiries were to allow him full information to make a valid decision which would affect the rest of his life, adding:
It may also be worthy of note the information I am requesting is needed so as to allow the interlock Psychologist engaged by the Commission on my behalf to be of maximum benefit to me and the Commission.
In a memorandum in reply dated 1 April 1992 Ms Winters concluded:
I certainly appreciate the uncertainty which you are experiencing but unfortunately cannot provide an exact assessment of the situation because the recruitment/selection process has not yet been conducted. I do not think that written question and answer is providing you with the information that you require and urge you to contact Mr Peter Rule, General Manager Human Resources and discuss things openly. I hope this is of assistance to you.
The plaintiff followed her advice and made an appointment to see Mr Rule on 12 May 1992 but Mr Rule failed to keep the appointment.
By a letter dated 20 May 1992 from the acting general manager of Lotus Glen the plaintiff was informed that he had been appointed to the position of operations support officer subject to a probationary period of six months. The probationary period was shortened because the plaintiff had been acting in higher positions than his permanent position before his promotion. Throughout the rest of 1992 and until he left Lotus Glen in December 1993 the plaintiff saw Dr Bestmann and Interlock counsellors regularly. In the plaintiff’s statement of 8 November 1993 he mentioned ‘constant psychological support (Mr Charles Walsh, Mr Steve Parker and Dr Val Lewis)’. The plaintiff remained very depressed and agitated and continued working against Dr Bestmann’s advice to stop. The plaintiff also rejected Dr Bestmann’s advice that he consult Dr Rigano. Mr Maybery could not remember seeing improvement in the plaintiff’s condition between May 1992 and Mr Maybery’s departure in October 1992. In 1993 the plaintiff’s condition did not improve. On 13 December 1993 he agreed with Dr Bestmann that he was unable to continue working.
On 24 January 1994 the plaintiff was admitted to Calvary Private Hospital in Cairns on the advice of Dr Rigano, to whom he had been referred by Dr Bestmann. I have, it will be recalled, already mentioned part of the contents of a letter dated 17 January 1994 from Dr Bestmann to Dr Rigano. He was admitted suffering from agitation, depression, and suicidal ideation, primarily to remove him from the local environment and to assess the degree of depression. He was diagnosed as suffering from major depression and discharged on 1 February 1994.
Dr Rigano last reviewed the plaintiff on 16 March 1994 and in a report to the Workers’ Compensation Board of Queensland dated 30 March 1994 (exhibit 52) recorded that there was no doubt in his mind that the plaintiff’s depression was ‘related to work’. In March 1994 the plaintiff left north Queensland and moved south. Since 28 March 1994 he has been advised and treated by Dr Alan Freed, psychiatrist of Ipswich.
Dr Freed has seen the plaintiff many times. In a letter dated 4 October 1999 to the plaintiff’s solicitors (exhibit 39) he set out the dates of the consultations to then. Dr Freed found the plaintiff to be suffering from a major depressive disorder and post-traumatic stress disorder, the former being predominant and recurrent but with no full inter-episode recovery: see Dr Freed’s report dated 9 April 1999 which is part of exhibit 2. The plaintiff is still suffering from depression which prevents his returning to any form of paid employment and his incapacity is likely to continue in the foreseeable future. But his condition may improve once this litigation is completed and after some years he may no longer need to consult Dr Freed.
Dr Freed expressed the opinion that the symptoms the plaintiff had in February 1991 were a ‘decompensation’ which was, however, short-lived. I do not think that the evidence on that subject clearly establishes that the symptoms were mental in origin, but at all events it is clear that by the time Mr Maybery arrived at Lotus Glen in May 1991 the plaintiff had recovered from any previous distress and was displaying that confidence and authority which is universally a characteristic of sergeant-majors. Dr Freed said in evidence that the meeting on 21 December 1993 pushed him over the edge. Dr Freed, as Mr Maybery had, made a reference to the proverbial straw: ‘He left the meeting and he seems to have wandered around in what was probably a dissociated state and that seems to have been the last straw that broke Mr Hardy’s back’. Although the disagreement at the meeting was the occasion of the plaintiff’s final collapse, it was not, on my assessment of the evidence, the cause of his disorder, as I shall explain.
The plaintiff now suffers from the chronic mental disorder of depression. On my assessment of the evidence its cause is to be found in two anxieties which had the effect of bringing on the condition in late February 1992. The first and more potent was the plaintiff’s worry about his future in the prison service brought about by the reorganization foreshadowed in 1989. That anxiety had been festering in the plaintiff’s mind since his visit to Mr Rule in December 1989. Mr Lane, who was a personal friend of the plaintiff, had referred to the kind of uneasiness felt by the plaintiff when he mentioned that officers of the plaintiff’s rank had been ‘disadvantaged’ in the ‘emotional sense’. That is bland bureaucratic language, but its meaning is obvious enough. That things were coming to a head on this matter can be seen from the observations of Mr Maybery, the correspondence with Ms Winters, and of course the plaintiff’s preparation to shoot himself on 18 February 1992. On top of all that came the news of his brother’s suicide. Those two anxieties pushed the plaintiff over the edge in February 1992 in my view. He has never recovered in spite of his continuing to work until December 1993. I conclude that those were the causes of the plaintiff’s condition, and other alleged shortcomings of the defendant’s organization did not cause or aggravate his mental condition. From February 1992 the plaintiff’s mental disorder continued at the same level of intensity until he at last recognized in December 1993 that he could no longer continue working.
In reaching the conclusion I have about the origin and course of the plaintiff’s condition I have relied very much on the evidence of Mr Maybery and Dr Bestmann - particularly the former who was in the better position to observe the plaintiff with a professional eye at an important time in the history of the plaintiff’s condition. Mr Maybery saw the plaintiff in a mentally healthy state in the middle of 1991 and saw his decline beginning in late 1991 until his collapse in February 1992. Of particular importance is the record of Mr Maybery’s assessment of the plaintiff recorded in his memorandum of 17 February 1992. Important too is the fact that Mr Maybery could not recall seeing the plaintiff improve after he had been appointed to the sought-after position: the damage had been done by then, the injury suffered. Had there been any change in the plaintiff’s condition Mr Maybery would certainly have remembered it, I think. Dr Bestmann said in evidence that after 19 February 1992 the plaintiff ‘remained very depressed and agitated and a very sick man who struggled but continued working against medical advice’. Dr Bestmann found throughout 1993 the plaintiff ‘was staying the same or perhaps getting marginally worse’. The evidence of Mr Maybery and Dr Bestmann is in my view the most relevant to a determination of the aetiology and course of the plaintiff’s disorder.
The defendant has pleaded a defence under the Limitation of Actions Act. The plaintiff must, to recover anything in the action, prove two things. The first is an aggravation of his condition after the beginning of the three years preceding his instituting the proceedings – an aggravation going beyond any deterioration which would have occurred in any event in the natural course of his disorder. In the second place he must prove that such aggravation was caused by a wrongful act of the defendant: see Adams v. Ascot Iron Foundry Pty Ltd (1968) 72 S.R. (N.S.W.) 120 at p. 124 per Sugarman J.A., with whom on this point Walsh and Asprey JJ.A. agreed. The wrongful act could be one committed before or after the beginning of the three years, but if it were committed before it must have brought about no damage before the beginning of the three years.
My conclusion is that the plaintiff can recover nothing in this action, that any cause of action he may have had against the defendant for damages in respect of personal injury is statute-barred. Any such cause of action arose in early 1992 and so the relevant period of limitation had expired before he began the action. There was no aggravation of his condition in the three years preceding his beginning this action or afterwards: his condition has, regrettably, remained at the same level since its onset. That conclusion is sufficient to dispose of the action, but I think it desirable to record my findings on the alleged breaches of duty of the defendant.
In particular (a) given in paragraph 6 of the amended statement of claim it is alleged that the defendant failed to ensure that enough experienced staff were employed. I take this to be an allegation confined to Lotus Glen.
Although many of the officers employed at the prison when it opened had had no previous prison experience, there was a training course followed by role playing. The introductory training was supplemented when the officers were given a day for training out of their normal routine every three weeks. That introduction to work in the prison service appears to have been broadly similar to that provided to the plaintiff in 1975. There was no evidence that the introductory training undergone by the plaintiff was inadequate, and I see no basis for concluding that that provided to the new recruits in 1989 was inadequate. At all events, within a year or two years at the most, the new recruits could properly have been regarded as experienced officers. I am not satisfied that the recruitment of people without prior prison experience was a breach of a duty owed by the defendant to the plaintiff, particularly when it was thought desirable to give effect to a new ‘philosophy’ and when there was a core of experienced officers like the plaintiff to guide the new recruits.
There is evidence that the staff establishment at Lotus Glen was not filled. In a memorandum dated 29 November 1993 to the director-general of the defendant, Ms Isabel Hight, director operations support custodial corrections, reported the results of a review of the utilization of staff at Lotus Glen based on a visit on 24 and 25 November 1993 by her and the general manager operations support custodial corrections (exhibit 32). Ms Hight reported that the approved custodial correctional officer establishment was 113 and that there were seven vacancies. That meant that the number of appointed officers was 106, but with ‘secondments and higher duties’ the number of available officers had been reduced by another ten to ninety-six. Ms Hight did not recommend a change in the approved number of custodial correctional officers, but recommended that the vacancies be filled without delay. Ms Hight made other recommendations, indicating that the defendant was taking an active interest in trying to ensure that Lotus Glen was managed efficiently. Although the number of available officers fell short of the approved number I am not satisfied that that discrepancy should be regarded as a breach of a duty the defendant owed to the plaintiff as his employer since the plaintiff was not required to work excessive hours, as I shall explain later.
For those reasons I am not satisfied that particular (a) has been established.
Particulars (b), (c), (e), and (i), are allegations of various failures by the defendant in the way it required the plaintiff to perform his duties: to ensure that he was not required to work excessive overtime, to remove some of his duties and to transfer him to a less stressful position when he first started to suffer from work-related stress, and to take any or any adequate steps to ensure he did not continue to work in positions that exacerbated the work-related stress he was suffering. I am not satisfied that any of those allegations has been established as a breach of a duty owed by the defendant to the plaintiff: when necessary the plaintiff’s mental health was under the watchful eyes of a doctor and psychologists, and in those circumstances there was nothing in the nature and extent of the plaintiff’s duties or his performance of them that should have caused the defendant’s managers any concern. As soon as the symptoms of stress became apparent the plaintiff had been referred to Interlock and at all material times he had the advice of his own doctor, Dr Bestmann, and the Interlock psychologists. In addition Mr Maybery had been well placed to observe the plaintiff and to advise those officers senior to the plaintiff of any steps that might be necessary. The plaintiff continued to work in 1992 and 1993. He performed his duties satisfactorily.
In 1992, but not afterwards, he was asked by superiors to act in positions senior to his permanent position: manager operations and manager programs. He agreed to do so and did so satisfactorily.
Exhibit 46 is a record of the hours worked by the plaintiff at Lotus Glen from 7 November 1991 to 21 December 1993. It does not show that he worked excessively long hours there and records quite lengthy periods when he was not rostered for work in 1992 (in April, May, August, November, and December) and in 1993 (in January, February, April, May, August, September, November, and December). He took no sick leave from 1 July 1991 to 30 June 1992, as a memorandum dated 16 July 1992 from Mr Gallagher as acting general manager to the plaintiff (part of exhibit 5) shows, but he did take it later. The plaintiff asserted he worked long hours of overtime at home. I am not satisfied that that is so, since his wife’s evidence went no further than relating he would work ‘for an hour or so’ quite regularly but not every night, and in addition ‘maybe a couple of times a month’ he would discuss prison business with Mr Lane and Mr Gallagher in their homes. I should add that the plaintiff had time available to have a ‘managerial game of golf’ on Thursday afternoons at the Mareeba golf course. The plaintiff’s house adjoined the ninth tee of the golf course and he played nine holes or more each working day. The plaintiff’s evidence as to the overtime he was required to work was I conclude an exaggeration.
Particular (d) is an allegation the defendant was guilty of breaches of its duty to the plaintiff in continuing to have the plaintiff act in higher-duty positions after he first started to suffer from work related stress. The reasoning concerning particulars (b), (c), (e), and (i) applies to particular (d) so that the plaintiff fails on that particular as well.
Particulars (f), (g), and (n) are allegations of failures by the defendant in its management of Lotus Glen: to provide competent supervision, to ensure that there were proper instructions when changes to regulations, restructuring, and reorganization were introduced to ensure that there was a minimum of frustration and confusion, and to provide any or any adequate training or instruction to the plaintiff and his fellow employees.
On 23 February 1998 the plaintiff gave as a further and better particular of (f) that the ‘shortage of staff and/or experienced staff throughout the Qld Corrective Services Commission caused the lack of supervision which meant that the level of supervision was not competent’. The evidence shows, however, that although some staff members lacked experience, others – e.g. those superior to the plaintiff and the plaintiff himself - had substantial experience. Particular (f) is a wide generalization, and it suffices to say that I am not satisfied that it has been established.
Particulars (g) and (n) are more specific: (g), as the further and better particulars dated 23 February 1998 indicate, is directed to staffing policy, accommodation policy, and operational manning policy; and (n), as the further and better particulars dated 13 October 1999 indicate, is directed to the response, or lack of it, by the defendant to a submission by Mr Lex Peters in 1990 and a report prepared by Ms Christine Dyer in 1993.
The staffing policy referred to was the policy which resulted in the plaintiff’s correspondence with Ms Winters and his unsuccessful attempt to see Mr Rule on 12 May 1992. The origin of the policy lay in the Queensland Government’s acceptance of the report which resulted in substantial changes in the administration and ‘philosophy’ of the prison system. The implementation of the policy cannot be characterized as a breach of a duty owed by the defendant to the plaintiff.
The implementation of accommodation and operational manning policies which resulted in the reception into Lotus Glen of prisoners who were accommodated in the detention unit and the hospital - but which did not result in the sharing of cells at any material time - cannot be regarded as a breach of a duty to the plaintiff. Mr Jeremy Darvall, barrister-at-law, was an official visitor to Lotus Glen between 1 September 1989 and 30 December 1994, when he resigned. He gave evidence that prisoners were accommodated at Lotus Glen after directions had been given by a Government minister that prisoners were to be removed from the Cairns watchouse, in which conditions were poor. General manager’s rule no. 71, issued on 24 December 1992 (exhibit 21), provided that Lotus Glen would be pro-active in relieving accommodation pressures in the Cairns watchouse. When the prison opened it had accommodation for 192 prisoners in the secure facility and accommodation for eighteen on a farm. The capacity of the farm was increased first to twenty-two, then to thirty-two, and finally to fifty-two. But the accommodation of extra prisoners was accomplished without ‘doubling-up’ until February 1994, and so after the plaintiff left Lotus Glen.
A submission dated November 1990 by Mr Peters, psychologist, provided a uniformed - staff training needs analysis (exhibit 9). A questionnaire was ‘administered’ to half of the uniformed staff, and a ‘general review of the questionnaire’ revealed ‘a few areas which present room for improvement’. A point that was emphasized was that there were ‘different management styles’ between two blocks in the prison. After the receipt of the submission there was an increase in training in the use of firearms and no other change, but I am not persuaded that in failing to respond otherwise to the submission was a breach of a duty owed by the defendant to the plaintiff.
A report to the chairperson of the Joint Consultative Committee, Lotus Glen Correctional Centre dated 20 July 1993 documents data obtained informally while Ms Dyer, psychologist employed by Interlock, was at Lotus Glen from 28 June 1993 to 2 July 1993 (exhibit 25). The plaintiff himself made the initial request for a report in May 1993. Ms Dyer spoke to as many employees as possible ‘about their perceptions of the situation at Lotus Glen’. Employees described emotional, physical, or psychological symptoms. Ms Dyer made many recommendations but none had been implemented before the plaintiff’s departure. Even assuming it would have been a desirable course of action to implement Ms Dyer’s recommendations, I am not persuaded that the defendant’s failure to do so before the plaintiff left Lotus Glen was a breach of a duty owed to him: the defendant was entitled to adequate time to consider the report before deciding whether or not to act on it. In any event, however, I am not persuaded that in acting as it did in response to Ms Dyer’s report the defendant was in breach of a duty it owes to the plaintiff.
It is convenient to mention here the rejection by Mr Gallagher as acting general manager of Lotus Glen of an offer by Mr John Engelmann, education officer, ‘to become involved in staff training’ provided certain conditions were met: see Mr Engelmann’s memorandum of 26 November 1992 (exhibit 48) and Mr Gallagher’s letter of the following day in response (exhibit 49). Mr Engelmann was employed to educate the prisoners, and, as Mr Gallagher pointed out in his letter, staff training would be managed by another officer, the staff development officer. That rejection, which was on reasonable grounds, did not constitute a breach of a duty owed by the defendant to the plaintiff, in my view.
For those reasons, the plaintiff’s case fails on particulars (f), (g), and (n).
Particular (l) is an allegation that the defendant failed adequately to prepare, instruct, counsel, warn or educate the plaintiff in relation to the possible incidence of psychological disorder flowing from stress.
Officers in the prison service are likely to become anxious from time to time. Boredom is a feature of their work, but so is anxiety caused in a number of ways. There is the ever-present menace of violent behaviour by the prisoners: disturbances and threats of various kinds, damage to property, and assaults on other prisoners and members of the prison staff. In addition, discord among prison officers is a frequent source of anger and resentment: managers and middle managers may feel that their subordinates are incompetent or lazy, subordinate staff may have similar opinions of their superiors, and middle managers may feel torn between their loyalty to those above them and those subordinate to them. Genuinely held differences of opinion as to how prisoners should be treated may lead to anguish. Petty jealousies, perceptions of misuse of authority, and malice in various forms may also cause stress to a prison service officer.
There was evidence given by the plaintiff – not always consistent - of instances of all those possible sources of stress. Prison officers subordinate to the plaintiff brought unnecessarily serious charges against prisoners for minor breaches of discipline, he said. That resulted in more work for him, which he found stressful. The plaintiff suffered stress, he said in evidence-in-chief, when Mr Lane was unable to stop the transfer to the prison in 1992 of a troublesome prisoner called Jones, who had been there before, in 1989. The plaintiff suffered stress he said in evidence-in-chief when Mr Lane said that the Lotus Glen staff could handle Jones’s presence and the staff had the skills to handle Jones. Later, when cross-examined, the plaintiff said he did not blame Mr Lane for Jones’s coming to Lotus Glen, that Mr Lane ‘tried as hard as he could’, but he blamed the defendant. On the other hand the plaintiff said, Mr Gallagher caused him stress by ‘always manipulating’ to remove disruptive prisoners from Lotus Glen. Mr Gallagher did that when Mr Lane was not at Lotus Glen. The plaintiff said he ‘approached Mr Gallagher that he was betraying Mr Lane’. Mr Gallagher accepted that the plaintiff was ‘committed’ to Mr Lane and would let Mr Lane know what was going on. The plaintiff said that his implementing orders from managers caused animosity between the most junior staff and the rank above them and also between the latter and the plaintiff. The plaintiff also gave evidence that Mr Gallagher’s allowing units to be locked down for an hour while the officers had their lunches was a matter of ‘great stress’ to him. A confidential memorandum dated 23 December 1992 to the director-general of the defendant (exhibit 19) produced by Mr Kel Olson, who acted as general manager from 30 November 1992 to 3 January 1993, records allegations of abuse of authority by Mr Gallagher. The plaintiff, gave evidence that those alleged abuses led to complaints by the staff to the plaintiff and that as a result he suffered stress. In November 1993 a subordinate member of the staff made a malicious and unfounded reference to the plaintiff on the prison two-way radio that caused the plaintiff distress and anger: he referred to the plaintiff as a ‘tamperer’.
It is clear that the responsible officers of the defendant were at all relevant times well aware of the ever-present sources of stress on prison officers. Such stress could never be completely eliminated, but the defendant took the precaution of making available to prison officers the services of the Interlock counsellors. It did not itself provide training on methods of dealing with stress, but made available the services of independent counsellors outside the organization. It would be arguable in my view that the defendant need not have gone as far as it did in taking precautions against the effect of stress on its employees, particularly for those as senior in years and experience and as mature as the plaintiff was. A less elaborate and less expensive system may have been sufficient. But it went further and provided at no expense to the employees the services of independent counsellors. That was, on my assessment, an adequate precaution to discharge the responsibility of the defendant as employer.
I therefore conclude that the plaintiff has failed on his case on particular (l).
Particulars (j), (k), and (m) cover ground I have already dealt with in connexion with other particulars.
In relation to particular (h) it suffices to say that in my view it was not practicable to eliminate stress from the workplace, but the provision of the services of Interlock counsellors dealt with the problem as far as it was practicable to do so.
The plaintiff’s action therefore fails.
My assessment of the quantum of the plaintiff’s damages for injury suffered after the beginning of three years preceding the institution of the action is nil.
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