DISTRICT COURT OF QUEENSLAND
CITATION:
Hoyes v Wellways Australia Limited ACN 093 357 165 [2025] QDC 125
PARTIES: MADDISON JANE HOYES (Plaintiff)
v
WELLWAYS AUSTRALIA LIMITED ACN 093 357 165 (Defendant)
FILE NO:
14 of 2023
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Townsville
DEVIVERED ON:
3 September 2025
DELIVERED AT:
Townsville
HEARING DATE:
5 – 8 August 2024
JUDGE:
COKER DCJ
ORDERS: 1. The Plaintiff’s claim is dismissed.
2. The Plaintiff pay the Defendant’s costs upon a standard basis as and from 1 December 2022.
CATCHWORDS:
WORKPLACE INJURY – PERSONAL INJURY – PSYCHIATRIC INJURY – CAUSATION – whether psychiatric injury was caused by the workplace incident – whether the employer breached its duty to provide the employee with a safe system of work by failing to take the steps identified by the employee – whether the employer fulfilled their duty to take reasonable care to avoid psychiatric injury
LEGISLATION: Workers Compensation and Rehabilitation Act 2003 (Qld), s305B
Workers Compensation and Rehabilitation Act 2003 (Qld), s305D
Workers Compensation and Rehabilitation Act 2003 (Qld), s306PWorkers Compensation and Rehabilitation Regulation 2014 (Qld), Schedule 9
CASES: Amaca v Booth (2011) 246 CLR 36
Hegarty v Queensland Ambulance Service (2007) QCA 366
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
Kozarov v Victoria (2022) 273 CLR 115Wyong Shire Council v Shint (1980) 146 CLR 40
COUNSEL:
P Mylne for the Plaintiff
D Campbell KC & S Noble for the Defendant
SOLICITORS:
O’Shea Dyer for the Plaintiff
Cooper Grace Ward for the Defendant
Introduction
On the 24th of January 2023, Maddison Jane Hoyes, whom I shall refer to as the plaintiff commenced proceedings against Wellways Australia Limited ACN 093 357 165. I shall refer to them hereafter as the defendant. The original claim was for $750,000.00 for personal injuries for negligence caused by the negligence of the defendant. Additionally, the plaintiff sought interest and costs.
The claim by the plaintiff relates to a psychiatric injury said to have been sustained by her following three particular incidents which occurred during her employment as a carer for disadvantaged young people. The defendant’s business, and the plaintiff was employed in this capacity, was to provide services for the purposes of supporting people affected by mental health issues or disability. As pleaded, the services included the provision of residential accommodation to juveniles affected by mental health issues or disability and the provision of a support worker who lived in residential premises with the client on a twenty-four hour, seven days per week basis.
Background
The plaintiff was employed by the defendant between 27 July 2018 and either 6 or 23 January 2020. That employment was as a support worker and that role required her to care for and supervise juveniles at residential premises owned or operated/ controlled by the defendant. It does not appear to be in contest that the juveniles supervised by the plaintiff had a history of mental health disorders to varying degrees.
In this matter there is much that was agreed, and “Exhibit 5” is a document headed “Admissions Document Based Upon the Further Amended Statement of Claim and the Further Amended Defence”. This document provides significant context both in relation to the incidents which are claimed to give rise to the psychiatric injury and the circumstances of the plaintiff commencing work. Those admissions which are important in my determination of this matter include:[1]
[1] Exhibit 5, paragraph 3, 5A – 7, 8 – 9, 12 – 13 & 14 – 15
3. At all material times, for the Work Health and Safety Act 2011 (“the WHS Act”) and the Work Health and Safety Regulation 2011 (“the Regulation”):
(a)the Plaintiff was a “worker”, within the meaning of s 7 of the WHS Act, when she carried out work as an employee of the Defendant;
(b)the Defendant’s employees were “workers”, within the meaning of s 7 of the WHS Act, when they carried out work as employees of the Defendant;
(c)each of the residential premises referred to in this pleading was a “workplace” within the meaning of s 8 of the WHS Act;
(d)the Defendant was:
(i)“a person conducting a business or undertaking” within the meaning of s 5 of the WHS Act;
(ii)“a person with management of a workplace” within the meaning of s20(1) of the WHS Act.
5A. On 3 July 2018, the Plaintiff:
(a)completed, signed, and dated a three-page document entitled “Applicant Information Form” (“the applicant information form"),
(b)gave the applicant information form to the Defendant.
5B. The following statements appear in the applicant information form:
“(a)Do you now or have you ever suffered from the following: indicate Yes or No;
Mental/Nervous Disorder - Y
(b)If you answered Yes to any of the above please provide details
here:
“— Depression - currently managed”.
6. At the commencement of the Plaintiff’s employment, the Plaintiff was given a copy of a six-page document signed by her headed "Wellways Position Description” (''the position description document") dated 13 August 2018.
7. The position description document provided, inter-alia:
"Essential Requirements, Knowledge, Experience and Skills Qualifications & Essential Requirements
Certificate Level 3 or 4 Mental Health, Disability, Aged Care or Home and Community Care... "
8. On 15 August 2018 at 1:11 PM, Raylene Taylor sent the following email communication to Camille Tillery:
"Hi Camille,
Does Madison have a certificate in anything? E.g.: aged care, disability et cetera... if yes can you please get her to forward that to me as well as her resume since we can't find any of her interview documents, (no rush) ".
9. On 15 August 2018 at 2:32 PM, Camille Tillery sent the following email communication to Raylene Taylor:
"Hi Rae,
No she doesn’t.
I have told her she needs to be enrolled in a cert 4 by Dec 18 and completed by Dec 19".
12. On 16 November 2018, the Plaintiff was in the course of supervising a juvenile resident (“the juvenile”) of residential premises in Townsville which were controlled by the Defendant ("the first supervision").
13. During the course of the first supervision:
(a)the Plaintiff walked into the juvenile’s bedroom to check on her welfare;
(b)the Plaintiff observed the juvenile standing on a stool with the bed sheets on the floor next to the stool;
(c)the Plaintiff said that she needed to remove the bedding to keep her safe;
(d)the juvenile stated:
(i)that she was going to find another way to kill itself;
(ii)that she was looking for anything sharp in the house to cut herself with;
(e)the juvenile stated that she wanted the ambulance called as she felt that she would stop at nothing to kill herself that day;
(f)the Plaintiff contacted Emergency Services whereby an ambulance took the juvenile to hospital;
(g)the Plaintiff:
(i) stayed at the residential premises;
14. On 26 November 2018, the Plaintiff was in the course of supervising a child named FAL (“FAL”) at residential premises situated at Greenwood Drive, Kirwan (“the Greenwood Drive premises”) Townsville which were controlled by the Defendant (“the second supervision”).
15. During the course of the second supervision:
(a)the Plaintiff refused to give FAL a knife to cook with;
(b)FAL became aggressive towards the plaintiff and threw glass towards her;
(c)the Plaintiff barricaded herself into the staff office in the premises;
(da)the Plaintiff retreated to the office and closed the door of that room;
(db)FAL threw a coffee at the office door and broke the door;
(e)the Plaintiff telephoned the Police for assistance;
(ea)FAL went outside the Greenwood Drive premises and threw an eggbeater at the Plaintiff’s motor vehicle;
(eb)FAL then:
(i)returned inside the Greenwood Drive premises;
(ec)the Plaintiff telephoned the Defendant for assistance;
The Defendant admits that FAL attempted to light a kitchen roll on fire but did not succeed in starting a fire.
It was agreed that paragraph 15(b) should have added, “after the plaintiff retreated behind the staff office door”.[2]
[2] Exhibit 5, paragraphs 17 &18A
17. On 16 August 2019, the Plaintiff was in the course of supervising a child known as PDL ("PDL”) at premises situated at 26 Sandplover Circuit, Bohle Plains (‘‘the Sandplover Circuit premises") which was owned or controlled by the Defendant ("the third supervision")
18A. During the course of the third supervision:
(a)PDL produced a razor blade;
(b)the Plaintiff asked PDL to give her the blade;
(c)PDL said the following words: “I’m just going to kill myself’’,
(d)PDL walked outside the premises followed by the Plaintiff;
(e)PDL said the following words to the Plaintiff: "If you don't leave me alone, I'll bash your fucking head in"’,
(f)the Plaintiff telephoned emergency services on the number 000;
(g)whilst the Plaintiff was making the telephone call to emergency services, PDL commenced banging on the front door shouting aggressively;
(h)the Plaintiff opened the door;
(i)PDL:
(i)pushed the Plaintiff on the chest area against the wall:
(ii)stated "I'm going to fucking kill you"’,
(j)Whilst the Plaintiff was pushed against the wall:
(i)PDL removed a lighter from her pocket:
(ii)commenced flicking it on and off;
(iii)stated the following words: "I'll burn you with this, I'll fucking burn you".
The admissions document goes on to acknowledge that prior to these incidents, and so, before 16 November 2018, the defendant had documentation and information relating to both children, FAL and PDL. Those included “Child Safety Services Risk Assessment and Plan” in respect of both children.
Without including all the information contained in the entries, it included in respect of FAL, the following:
“frequently has mood swings and can be abusive at times”, “has a trigger temper”, “is self-destructive, self-harms” and “also can become angry, irrational and heightened emotionally within an instant”.
In respect of PDL, not only were various risks identified, such as self-harm and escalating behaviour including property damage and verbally threatening behaviour, but risk control measures were also suggested. These included situations where contact was suggested with the Townsville Mental Health Acute Team and triple zero calls. Additionally, they included directions as to appropriate responses in situations where staff may be at risk of harm. These responses depended upon the particular action, and included: “staff locking themselves in the support worker room”, “staff removing themselves from the property if they felt unsafe”, “calling triple zero and Wellways during office hours” as well as the procedure to follow after hours.
Clearly the defendant, through its various more senior employees were aware of the issues relating to both juveniles, FAL and PDL, and had included in the risk assessments and plans, various comments and recommendations.
This background information and indication of Admissions is important in the consideration of the evidence and the law. It is even more the case when the defendant acknowledges that the first two of the three requirements arising pursuant to s305B(1)(a) and (b) of the Workers Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”)[3] are accepted. In the outline of submissions on behalf of the defendant the following is said:[4]
“The Defendant accepts that there is a foreseeable risk of psychiatric injury to support workers employed by it to care for disadvantaged young people. The Defendant also accepts that this risk is not insignificant and required reasonable precautions to manage the risk.”
[3]Workers Compensation and Rehabilitation Act 2003 (Qld), s305B(1)(a) & (b)
[4] Outline of submissions on behalf of the defendant dated 8 August 2024, [2]
Issue in Dispute
The issue which is in dispute and gives rise to contest in respect of liability and quantum, is the provisions of s305B(1)(c) of the WCRA[5], whether a reasonable person in the position of the defendant would have taken precautions to mitigate the known risk. There is also, coupled with s305B(1)(c) of the WCRA, a need to consider s305B(2) of the WCRA which focusses on what might be considered reasonable. Section 305B(2)(a) & (b) are in these terms:[6]
305B General principles
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
(a)the probability that the injury would occur if care were not taken;
(b)the likely seriousness of the injury;
[5]Workers Compensation and Rehabilitation Act 2003 (Qld), s305B(1)(c)
[6]Workers Compensation and Rehabilitation Act 2003 (Qld), s305B(2)(a) & (b)
The Evidence
I turn now to the evidence of the plaintiff and her witness Rebecca Davidson as well as the witnesses called for the defendant, Kevin Armstrong, Jasmine Sommers, and Shannon Baker. Both the plaintiff and the defendant also called psychiatrists, Michael Likely and Luke Murphy but I shall come to their evidence separately.
The plaintiff was generally an impressive witness. In her evidence in chief, given early on she described the demeanour of the juvenile, PDL as “aggressive and violent. She was very intimidating”. The plaintiff described PDL as approximately 110kgs and described the exchange between she and PDL. The plaintiff described it as follows:[7]
“In – in the beginning it was like any routine call we did. When PDL approached the house, I could see from how angry she was that it was better for me to let her in”.
[7] Transcript Day 1, page 37, line 36 – line 38
The plaintiff went on to describe herself as terrified and that the most distressing part was, “waiting for the police”. She went on to note that she did not feel supported by the defendant and was not offered any counselling. The plaintiff also stated that her current mental state impacted upon her work, in that she had flashbacks and night terrors which affected her sleep.
In cross examination, numerous issues were addressed. These included the plaintiff’s long-term goals and hopes with work into the future. She said the following,[8]
[8] Transcript Day 1, page 41, line 18 – line 34
All right. So if I can completely change course for the moment, you applied for your job with Wellways in early July 2018?---Correct.
And you commenced your employment with them in August 2018?---Correct.
At that time, you were a student at James Cook University?---Correct.
You were studying biomedical science or do I have the wrong degree here?---Medical laboratory sciences.
Okay. And your goal was, however, to be eventually employed in the field of microbiology; would I be right in - - -?---No, medical - - -
- - - saying that?--- - - - laboratory sciences.
In – with medical laboratory sciences. So your goal was to do what you’re doing now?---Correct.
The plaintiff also acknowledged not initially working during the evenings but that in late 2019, from about mid-October she did work some night rosters. Additionally, she indicated that whilst she could not choose who she’d work for or with, she could “refuse to work with this person, but you didn’t get to choose.” She went on later to accept that the juveniles in care were, “difficult children to work with”.
In addressing the impacts of such working situations upon herself, the plaintiff gave the following evidence, [9]
[9] Transcript Day 1, page 47, line 41 – page 50, line 29
Sorry?--- - - - after the third incident is when I really deteriorated. I tried to push through on shifts. I thought if I, you know – like, this isn’t my first experience with mental health issues. I thought, you know, if I prioritise exercising and look after myself and take my medications and shower and do the things that work for me that I would pull through. But I never pulled through. But it was the third incident which I never seem to come back down to the ground from.
Now, earlier – and my learned friend will correct me if I’m wrong here – I understood your evidence to be was, effectively, every shift you had problems such that you had to fill out an incident report - - -?---Correct.
- - - or something of that nature. I see. And yet those incident reports and those problems didn’t impact you until November 2018; is that your evidence?---I’m sorry, I don’t understand the question.
Well, you’ve said that you didn’t – it didn’t impact on you this – this work didn’t impact on you until the first incident, which happened in November 2018?---Mmm.
So from that do I understand you to mean that the earlier incidents had no effect on you?---I did have earlier – like, the other – sorry, I’m getting my words mixed around.
That’s all right?---The earlier incidents did have an effect on me. My belief is, and I hope I’m corrected here, we chose the three most damaging ones to write up.
Right. And you recognise yourself, did you, during this period of time from the time you commenced to work with these sometimes violent children that that had an impact on your own psyche? That your own - - -?---Yes.
Yes. Yet, can I suggest, you didn’t tell your employer that?---No.
HIS HONOUR: I’m sorry, no, you didn’t tell them, or that – no, that’s not correct?---I don’t believe that I told them. Sorry.
All right. Thank you.
WITNESS: I also want to point out that I was never asked.
MR CAMPBELL: Would I be right in saying that you needed a degree of resilience to be able to undertake the type of work that you were doing?---I would say so, yes.
And can I suggest, in the first supervision that you did, that is, a one-on-one meeting with – was it Camille, who was your immediate supervisor?---Correct.
You said to her that you thought that resilience was one of your traits; do you recall that?---Yes – oh, I don’t recall the meeting itself, but I did believe that I held resilience.
Well, can you have a look at this document?---Of course.
Sorry, that’s – this is 71. Thank you.
MR MYLNE: Thanks.
MR CAMPBELL: Thank you.
WITNESS: Sorry. Thank you.
MR CAMPBELL: Now, I will come, in a moment, to the structure or the systems that were in place with regard to staff, but was one of the things that was in place something called a staff evaluation?---Yes.
And that would be a meeting that you would have with a superior staff member about on a monthly basis?---It was a professional development. I don’t think it occurred monthly.
All right. And if you look at the last page, there’s your name. Is that your signature?---It is.
And did you sign it on the 13th of September 2018?---I did.
So this is about a month after you commenced working?---Yes.
And can I take you to the second page?---Yes.
In the middle, there’s a column on the left-hand side saying, “Self-assessment”?---Yes.
And the fourth or fifth question down says:
What are the greatest strengths of your performance in the evaluation period?
And you described yourself as being:
…reliable, will assist in a crisis and resilient – resilience.
?---Yes.
And so you considered yourself to have resilience to deal with the type of situations that arise with these types of children?---I thought I had resilience, yes.
Yes. And that’s what you told your employer?---Yes.
Thank you. You were asked some other questions and I will just point them out at the top, under self-assessment:
What do you enjoy most about your position?
You say you’re – you:
…feel supported by the workplace –
and that you feel you’ve:
…learnt so much in one month.
And then the – is it the fifth question down:
Do you have any strengths and/or skills not being utilised…
And you say you would like to get some more hours?---I’m sorry, which part was the more - - -
The - - -?--- - - - hours?
- - - question which is, I think, fourth down from – under self-assessment:
Do you have any strengths and/or skills not being utilised by HealthCall and, if so, do you have any suggestions as to how they may be used?
And you respond by saying:
I would like to get more hours and I - - -
?---Yeah.
Continuing:
- - - feel I would do well with the NDIS clients comfortable with personal care.
That – that’s what you told your employer at that time?---I did.
The plaintiff acknowledged that she was asked at the time of seeking employment about medications taken and whether she had ever suffered from ‘Mental/ nervous disorder’. She referred only to being diagnosed with depression but that it was managed. No other disclosures were made by the plaintiff.
In respect of support or supervision of the carers the plaintiff said the following:[10]
[10] Transcript Day 1, Page 63, Line 35 – Page 64, Line 34
MR CAMPBELL: Can I suggest that the Evolve meetings were held once a month and they were compulsory to attend. Whether you attended them or not, I don’t know, but you were meant to attend them?---If we were scheduled on. So they say they were compulsory and monthly, but if I was scheduled to work in a house, which often happened, then you wouldn’t attend those meetings.
Correct. It would be impossible. There was also supervisions and they were held monthly, can I suggest?---We had professional developments. Again, they weren’t held monthly.
And there was also things called live supervision and that is when someone senior would come and be at the house when you were there?---That live supervision happened for my first two shifts and it wasn’t from a supervisor. I had two two-hour training blocks from another support worker. I never experienced live supervision.
See, what I am suggesting is that what was explained to you in induction course were that there were a number of compulsory components to working which didn’t involve attendance on the young people?---I was explained that the house meetings were mandatory. You might not always make it into the office for them, but those meetings then got emailed out – out to you.
Yes. And a house meeting was held for each house in which there was a child?---Correct.
And you might be involved with more than one house, because you might be working for more than one child?---Correct.
Each of the house meetings, for example, attendance would be paid for by Wellways?---Correct.
And can I suggest the same is with regard to the Evolve meetings, that attendance is paid for by Wellways?---Okay.
Do you know that one way or the other?---I would assume so, yes.
And the same with regard to a supervision?---I never got super – oh, you mean the ones where I went into the office?
Yes?---I don’t remember for sure.
All right. Well, can I suggest that, in fact, they were?---Okay.
And that meant, did it not, that – and this is what was explained to you at the induction, that there would be at least – at least four or five hours a month involved in these activities which were in addition to looking after the children which focused on the child’s care and the staff’s care?---The staff’s care was never reiterated upon.
More particularly, there were consequences of non-participation/ involvement including the cessation of work shifts, which occurred as a result of non-compliance by the plaintiff in attendance at such meetings. These meetings were an important part of the care for the young persons involved as was noted here:[11]
[11] Transcript Day 1, Page 69, line 39 – Page 70, line 40
Thank you. Now, with regard to house meetings, they were quite important, because they dealt with the young person who was the resident in the house specifically?---Yes.
And they would deal with issues that other workers had been experiencing with that person?---Yes.
About how to cope with those sorts of issues?---yes.
But it also would deal with any problems that a worker was themselves experiencing with a young person?---I disagree.
But that was the purpose of the meeting, wasn’t it, to discuss the young person? That’s why they had a house meeting?---Yes, but never self-reflect – reflection.
All right. It had the benefit, though, of giving other workers who attended the house meeting some expectation with regard to what to expect in terms of behaviour from the child - - -?---Yes.
- - - and, perhaps, with regard to how it could be managed?---Yes.
Okay. If you didn’t attend a house meeting, perhaps because you were also working at the same time, the minutes of the house meeting were sent to you?---Yes, via email.
Yes. By email. And you were required to read those notes?---Correct.
Yes. Excuse me, your Honour.
Now, Evolve. Would you agree that they’re a specialist therapeutic mental institution that supplies – sorry, I will start that again. Evolve provides specialist therapeutic mental interventions for young people?---Yes.
And they deal with complex issues of mental health and trauma?---I believe so. I didn’t work closely with them, so I believe they gave advice as to, like, what emotions were being displayed, but I never had a close hand.
Did – are you saying that you never attended an Evolve meeting?---Oh, I believe that I went to some, but I – I sat in a room, you know?
But you sat in a room of a meeting that was being given by a mental health professional with regard to the particular children that were in your care?---Yes.
Okay. So that meeting, can I suggest, dealt with specific issues that – more complex issues that might be faced with regard to the child and explaining why these might arise?---Yes.
Can I suggest it also dealt with how a worker could be impacted by a child’s behaviour?---I don’t recollect.
The plaintiff also agreed that she was aware of the Employee Assistance Program (“EAP”), including that it was a confidential counselling service that was operated by mental health professionals. The plaintiff agreed that she did not utilise the service.
The plaintiff was during her cross-examination, taken at some length through each of the three incidents relied upon in the claim. In particular, the plaintiff acknowledged the contents of the “Child Safety Incident Reports” as being her report, though handwritten by her and it would appear, subsequently typed up.
Specifically, the plaintiff was questioned about the third incident, that which involved PDL in August of 2019. Her recollections were strong of the incident, understandably, and she was able to recall, with considerable detail, the events of that day. The plaintiff was able to detail the events, particularly following the police arrival at the house, and the order of phone calls, reports and discussions held. I accept the plaintiff’s recollection, particularly in respect of any communication or interaction with Kevin Armstrong. I shall come to his evidence shortly.
The plaintiff addressed issues in respect of her previous shifts working with PDL and the techniques to deal with her should she become heightened in her behaviours. In cross-examination, the following arose:[12]
[12] Transcript Day 2, page 15 line 32 – page 16 line 17
MR CAMPBELL: Now, with regard to those previous shifts of PDL that I just mentioned, you’d had no previous incidents yourself which suggested that PDL might produce a weapon or something of that nature?---PDL was not an easy client to work with, but there was no incident between her and I that would trigger such a horrific event.
Yes. And you didn’t, for instance, say to Wellways that you didn’t want to work or wouldn’t work with PDL?---No, I did not say that.
No. There was a house meeting on the 13th of August 2019, a few days before this, which you didn’t attend, but can I show you this document?---Thank you.
I suggest that the normal course was for these to be emailed to you, and this was a document that was emailed to you before the incident on the 16th, and it’s the minutes of the house meeting?---That’s correct.
Okay. Can I take you to the second page. And in the middle section, item 3, down about line six lines, it says this:
Staff are to ensure they have thoroughly read the risk assessment and all revert documentation regarding PDL which is located in the house folder. If staff are unsure of how to manage an incident or have any queries regarding PDL, they are to contact Jasmine or Leanda. We have noticed the staff are often unable to de-escalate PDL once heightened, due to her complex needs and trauma history. Emergency services are to be called as soon as PDL makes threats to herself or staff.
?---That’s what says.
Yeah. But you had read that prior to the incident on the 16th, yes, Mr Campbell.
And you acted on it, because you called triple O very early on?---That’s how I handled all incidents.
The plaintiff accepted that she continued to work for the defendant after this incident until 23 January 2019, two days prior to commencing work for Pathology Queensland at the Townsville Hospital. The plaintiff formally wrote to the defendant on the 6th of January 2020, resigning her position. Thereafter she worked for various organisations as a laboratory assistant until February 2022 where she obtained work as a medical scientist at Melbourne Pathology. She remained so employed until November 2023, when she moved to Hervey Bay in Queensland, working with Queensland Health, again as a medical scientist. All work held subsequent to work with the defendant was full time.
The plaintiff also gave detailed and comprehensive evidence about her personal life prior to her employment with the defendant and to the various traumatic incidents that had occurred. She accepted that she had struggled with her mental health since she was about 8 years of age. She agreed that she had been diagnosed with Type 2 Bipolar. Whilst not recalling any such diagnosis, she also accepted that she had previously completed a document indicating that she had previously been diagnosed with Post Traumatic Stress Disorder.
As I said, at the commencement of these comments with respect to the plaintiff, I found her to generally be a truthful and reliable witness. That is however with one exception or concern, which is to the effect that I would find that she significantly downplayed or minimised issues with respect to her mental health, especially prior to her employment with the defendant as well as downplaying the resources and services which were available to her, as provided by the defendant.
Also called by the plaintiff was Rebecca Ruth Davidson, a Grade 3 scientist in the department of Haematology at Melbourne Pathology. She was the departments second in charge when the plaintiff was employed as a Grade 1 scientist. Ms Davidson has a supervisory role in respect of the plaintiff. In that role she had the opportunity to observe the plaintiff and described her demeanour at work as follows:[13]
Maddison’s general demeanour at work was – she was generally a very positive person. She was generally very keen to do her very best. She tried very hard to do her best at whatever task was assigned to her and she – she strove to do it well. Her general demeanour, she was a friendly person who got along well with – with all other members of the department. We were quite saddened when she needed to move onto another role because we did appreciate her contributions to the department both professionally and as a personality who was a very – a pleasure to work with.
All right. And again, from your own observations, how would she cope if things went wrong for her at work?---Maddison took things that went wrong at work pretty hard. She took things to heart. Whether the mistake was of her own doing, or she was perhaps the inheritor of a mistake that she’d identified, she took them very seriously and she took them to heart. She – she was always of the mind to be very hard on herself about a mistake and she was a little bit difficult to talk down from that sometimes in that – everybody makes mistakes and particularly when we’re new to our career, but Maddison always strove to be perfect and she didn’t tolerate making mistakes, although she would extend quite a degree of compassion and understanding should somebody else make the identical mistake.
[13] Transcript Day 2, page 56 line 22 – line 41
In particular, Ms Davidson was asked about the plaintiff’s attendance at work and said[14]
Maddi did strive to be very reliable. However, she did have necessity to take additional days of personal leave, perhaps more so than people of her age and – and level generally and, although she’s not required to ever explain to us why she would take personal leave, she did sometimes say, “I was just really overwhelmed and I – I needed to rest.”
[14] Transcript Day 2, page 57 line 19 – line 23
In cross-examination, Ms Davidson confirmed that she was the plaintiff’s boss while she worked at Melbourne Pathology and that she worked both night and day shifts, being rostered overnight at her request. Ms Davidson also was asked to comment upon the positive staff review provided for the plaintiff at the end of her probation period including her agreeing that the plaintiff was becoming “a real asset to the department”. Ms Davidson noted that she was disappointed when the plaintiff left Melbourne Pathology, as she had, “certainly contributed positively and she had a bright future”.
She acknowledged that the plaintiff had a career progression with Melbourne Pathology in “the fullness of time”. Ms Davidson was an accurate and thoughtful witness whose evidence was of assistance in the consideration of this matter.
Other than the medical evidence, which I will address separately, the defendant called three witnesses, Mr Kevin Armstrong, Ms Jasmine Sommers and Ms Shannon Baker. Mr Armstrong indicated that he was a state coordinator for Wellways Australia, Queensland, an organisation delivering services to children in out of home care, people with disability needs and mental health needs.
Mr Armstrong gave evidence as to Department of Child Safety’s minimum expectations for a person working with a child in out of home care. They included a Blue Card and other certificate requirements or enrolment to obtain such a certificate, within a designated time frame. Additionally, he outlined the “processes or requirements” that were in place for support workers at the time of the incidents, the subject of these proceedings. He detailed these as “house meetings”, a gathering of staff from a particular house to have open discussions about a child residing at that house. Whilst not compulsory to attend all, there were licensing requirements as to some attendance and the minutes of these meetings were circulated.
Additionally, there were “supervisions”, both face to face as between the senior support worker and the support worker as well as supervision meetings. These meetings were also minuited and held monthly. Further, there was live supervision which involved a senior support worker observing a support worker carrying out their duties. Mr Armstrong indicated that he did one supervision with the plaintiff but did not do any live supervisions as she was primarily connected to houses where he was not the team leader.
Mr Armstong also gave evidence regarding Evolve Therapeutic Services and their work with the various support workers as well as to the availability of the EAP which provided counselling services for support workers conducted by Mental Health Professionals. Mr Armstrong indicated that the availability of the services was spoken of at group meetings, house meetings, at supervisions and also at inductions for new staff. He also confirmed the provision of an on-call line, provided through the organisation to take enquiries from support staff whilst they were delivering support to children.
Mr Armstrong also confirmed the existence and availability of risk assessment documents placed in the house folder along with other documents including progress notes.
The witness also gave evidence about his knowledge of and involvement in the incident on 16 August 2019. It diverged significantly with the evidence given by the plaintiff as to any involvement by Mr Armstrong that day. However, there was a direct supervision record of a “post-incident supervision” on 23 August 2019. In evidence as to that supervision the witness said:[15]
[15] Transcript Day 3, page 24, line 28 – page 25, line 38
Okay. So can you perhaps take his Honour through what happened during the supervision? Firstly, was the incident with PDL raised during the supervision?---Yes, it was.
And what was Ms Hoyes’ demeanour when that was raised?---There was a number of emotion – emotional responses during the supervision where I called time for a short period just to allow Maddison to recollect herself, so that we could carry on.
So emotional responses, what do you mean? She was teary?---She appeared upset, yes.
Yes. And what topics were being discussed which appeared to be – to result in these emotional responses?---They were specifically around the occurrence that happened at the house with PDL.
Yes. And what matters were discussed during the supervision? Was there any criticism that you can recall made by Ms Hoyes with regard to the conduct of Wellways?---It was raised that Maddison felt that the organisation weren’t doing or supporting her enough.
And did she explain to you what she meant by that?---She expected regular, more regular daily contact with her to check in on how she was travelling.
And was there anything else that she was unhappy with?---Yeah, shifts. Maddison was seeking more – more access to shifts.
I see. So she wanted to increase her workload?---Correct.
And did – is – were you still at that time the program – acting program coordinator?---I was the appointed program coordinator.
Yeah. Was this a regularly arranged supervision? In other words, was the date something which had been set for some time?---I requested this particular one to be set up, yes.
Well, why did you request it to be set up and when?---I believe the request would have been sent out – I think that’s probably why I’ve got the 18th because that was post-incident, and to organise for that to happen.
And why did you request a supervision on the 18th then?---That was probably because it was fresh after the – the incident itself.
Yes. Now, during the supervision, do you recall whether there was any reference to EAP and counselling?---Yes, there were.
Do you remember what was said with regard to that?---I just reminded Maddison that we had EAP services available should she choose to reach out to them.
Was there any reference to additional services if she wanted to go further than the mandatory – or not mandatory, but the six that are provided?---Again, that was a discussion that would happen, yes, with Maddison and – and whoever she would be speaking to at EAP, that if the decision was made for an extension of those services, then EAP would reach out to Wellways.
And did you speak to her about taking time off?---Yes.
What was said?---Maddison was really stressed that she needed to do these shifts to meet her financial obligations.
And further in evidence in chief, the following was said:[16]
[16] Transcript Day 3, page 26, line 6 - 24
Following the supervision, did you have any further contact with Maddison?---I believe there was an email exchange in regards to attending group supervisions, house meetings, and there was an exchange with Maddison tendering her resignation.
And when she tendered her resignation, did she make any requests?---Maddison advised she was relocating to Melbourne and if there was opportunities in Melbourne within the organisation to deliver supports.
So she was interested in work in Melbourne?---Yes, for the organisation.
How was that delivered? Was that a conversation you had with her, or was it provided to you in a different way?---That was a phone conversation.
A phone conversation?---Correct.
And how did you respond to that request?---I let her know that I would reach out to counterparts from the Melbourne area to see if there was any opportunities.
Was there any result from that?---Not that I can recall.
The involvement of Mr Armstrong in the post incident interactions of 16 August 2019 were the subject of considerable cross-examination. In particular, it focussed on the witness’s suggested attendance at the residence in Sandplover Court and the time of the attendance there. Mr Armstrong’s evidence in that regard was difficult to accept, especially in light of other evidence available and while I do not think that he was being determinedly untruthful, it was certainly not reliable. However, I do accept his evidence both as to the availability of assistance of various types to support workers and of the promotion of such information to support workers.
Next called for the defendant was Jasmine Sommers. She was now employed by the Department of Communities and Justice in NSW as a pre-natal child protection case worker but had previously been employed by the defendant. She recalled commencing work with the defendant at the same time as the plaintiff and spoke of her recollection of the induction process in place if a new child was introduced to a house or a worker started at a new house. This included the provision of a risk assessment, a child information form and sometimes a case plan.
Ms Sommers also described the interaction with a manager before starting at a house or with a new child as well as initially working with a ‘buddy’ on the shift to work with a more experienced worker. She also confirmed the evidence of Mr Armstrong regarding the conduct of house meetings and the preparation of minutes which were distributed to staff. She also confirmed the practices involved in Evolve meetings known as group supervision and the support available there to support workers, as well as through one-on-one supervisions. In particular, Ms Sommers noted:[17]
And what sort of things were discussed in the supervision?---So the one on one supervision, I guess, were an opportunity to have that one on time with a worker where – so typically, we talk about the current client load. That was always, I guess, the go-to is – what current clients are you working with, what does that look like, what works and what’s not working. And, you know, we would very much about the kids in our workplace, but then in supervision we would also talk about self-care – how are you going, you know, how are you managing with the work [indistinct] changes that need to be made. So the supervision, I guess, is that – an opportunity to – to learn in terms of the actual work and the service you’re providing, but it also gives you that one on one time to have, I guess, a bit more of a private conversation in – you know, in – in the off chance of, like, I’m struggling or, you know, I need this time off or – or I’m really enjoying it and I want to work with more boys rather than girls or whatever. It gives – it was [indistinct] to be able to have that one on one time with your manager to let you know – let them know how you’re going and any kind of help you need.
[17] Transcript day 3, page 50, line 4 – line 27
Ms Sommers evidence in relation to all the forms of employee supports was corroborative of Mr Armstrong and, if anything, more comprehensive in details. In respect of the EAP, she said:[18]
All right. And you mentioned EAP before. Can you tell me a little more about that?---The EAP is called – it’s the employee assistance program, and it – look, I personally have not actually engaged in the EAP myself, so I couldn’t tell you about the actual system and how it works. However, EAP is a program that workers, their family members, anyone close to a worker – they can actually contact the EAP for counselling or for support or for guidance in terms of, I guess, when you feel like you need that support, you know, or if you’re struggling with the work or feeling whatever, you can go to the EAP for counselling and support.
And how did – how did workers know that it was there?---Well, like I said before, we actually had a lot of EAP posters up in the office, but also typically after every supervision, there would be that – well, not after – at the end of a supervision, there would be the conversation of here is the EAP, and that it was a bit of – again, it was a bit of a rule of thumb with us I guess kind of regardless of if the staff were presenting as struggling or not, we would always offer them the EAP at the end of the supervision anyway. Yes, just to make sure that, you know, they knew that it was there. It would also come up in conversations in house meetings, and it would also be offered to staff in, say, live supervision or just informal conversations. If they’re struggling, remember, there’s the EAP.
[18] Transcript Day 3, Page 51 line 7 - 25
In respect of the incident of 16 August 2019, Ms Sommers did not have an extensive personal recollection but confirmed her signature on the incident report and noted that it followed a ‘typical procedure’. She said: [19]
There would be phone calls, there would be debriefing, there would be opportunities, you know, for them to vent or to – like what I said, in our supervisions, you know, have chats about maybe wanting to move house or maybe only wanting little kids as opposed to big kids or something, you know? Typically, it was just any support. It would be talking about what has happened, you know? There might be that little bit of critical reflection of what – you know, maybe what we could have done different, but also, it would just be about talking about the incident and how you are going – how are you now, you know, what can we do to help you?
All right. And then do you remember phoning the plaintiff the following – sorry, the Saturday, the 17th of August, which is the following day?---Again, I remember – I do remember it happening, I do, but I can’t remember the whole contents of the conversation, but what I could – I could ascertain that I would have, again, debriefed with her, asked how she was going. I would have been checking up, seeing how she is, whether she is comfortable retaining or wheth – whether we need to make changes. It would have been that sort of conversation.
[19] Transcript Day 3, Page 54 line 32 – Page 55 line 2
In cross-examination, Ms Sommers was asked about her knowledge about any applications or requests for a second support worker for the child, PDL. Ms Sommers was generally unable to assist in that regard, it being outside her area of responsibility, other than to accept certain suggestions of what must have occurred but tellingly, she did say, in respect of seeking a second support worker, the following:[20]
[20] Transcript Day 3, page 64, line 1 - 14
Yes?---Yes. So my recollection of ever trying to gain a second support worker didn’t really have much to do with the incidences that those children would cause. It was more to do with their needs level and, I guess, the needs level that was determined by DCJ and whether that fitted in with what we are observing. So I guess, for example, the only time that I ever really saw a second worker ever get approved would – if that child had a significant disability.
I see?---That was the – yes. It didn’t really have to do with incidences. It was more to do with their literal need level.
Okay?---And as it often fell down to the children that literally had physical disabilities that required physical support.
Okay?---That was the only time I would see us get approved for a second worker.
Ms Sommers was also asked about PDL particularly and numerous entries in respect of her behaviours and threats to support workers. Ms Sommers acknowledged that certain workers were refusing to provide support for PDL but that as with some other children, some were agreeable to working with a specific child and some weren’t.
Finally, and toward the end of her cross-examination, Ms Sommers was asked about her discussions, post incident, with the plaintiff and whether she had mentioned the EAP. She indicated that she did and spoke of the procedure, such that, “EAP was given after any incident”.
I was most assisted by the evidence of Ms Sommers, again in particular relating to the resources and support structure in place with respect to the support workers.
The final witness called for the defendant other than the medical professionals, was Shannon Gaye Baker. Ms Baker was a disability and mental health social worker, now in private practice but at the relevant time, employed by Evolve Therapeutic Services. In that instance, she was the senior clinical provider and professional development coordinator.
She was, as a result, involved with the defendant providing group supervision, which she described as “an educative and reflective functioning process. So, group supervision is a process of bringing people together who are all part of the same team to collectively reflect on their practice and to learn ways of responding to cases.”
Ms Baker confirmed that invitations were sent to all staff not on shift and confirmed that this focussed on support workers.
In cross-examination Ms Baker confirmed her knowledge of and involvement with the juvenile PDL, noting that her primary diagnosis was, reactive detachment disorder. She explained this as being highly resistant to being in a relationship.
Ms Baker’s evidence was of short compass but did assist me somewhat in gaining an appreciation of the further support provided through the involvement of Evolve Therapeutic Services.
In this matter, I have addressed at some considerable length, issues regarding the plaintiff, her background and circumstances, and the existing framework of supports for support workers provided by the defendant. It was necessary to proceed on that basis because these considerations loom large in the determination of this matter.
As was noted, virtually from the outset, the defendant accepts that there is a foreseeable risk to persons employed by it as support workers for disadvantaged children. Further, the defendant accepts that this risk is not insignificant and therefore accepts the existence and nature of the risks such that the requirements set out in s305B(1)(a) & (b) of the WCRA[21] are met.
[21]Workers Compensation and Rehabilitation Act 2003 (Qld), s305B(1)(a) & (b)
The issue here arises from s305B(1)(c) of the WCRA[22], as to whether a reasonable person in the defendant’s position would have taken precautions. That gives rise to the matters addressed in s305B(2) of the WCRA[23], a consideration of the probability of injury, the likely seriousness of the injury and the burden of taking such precautions.
[22]Workers Compensation and Rehabilitation Act 2003 (Qld), s305B(1)(c)
[23]Workers Compensation and Rehabilitation Act 2003 (Qld), s305B(2)
In other words, the issue here is firstly whether the precautions taken by the defendant to protect their staff from psychological harm were reasonable and secondly, whether the type of precautions taken ought to have in some way been altered or enhanced because of the particular characteristics of the plaintiff.
The various supports available to support workers such as the plaintiff have been spoken of at some length by the witnesses for the defendant, Mr Armstrong and Ms Sommers. The plaintiff’s argument is simply that these precautions or supports fall short, and that the defendant should have had additional supports including:
(a)immediate counselling;
(b)two support workers rostered to certain juveniles and here especially, PDL; and
(c)that the defendant should not have permitted PDL to remain as a client because of her past history.
To address these matters, and overall, the considerations arising pursuant to s305B(2) WCRA[24], it is necessary to address the medical evidence, especially relating to the plaintiffs own mental health prior to and subsequent to her employment with the defendant. Accordingly, I turn now to the evidence of the two psychiatrists called, Michael John Likely for the plaintiff and Luke (Lucas) Murphy for the defendant.
[24]Workers Compensation and Rehabilitation Act 2003 (Qld), s305B(2)
Dr Likely provided two reports in relation to the plaintiff, dated 20 October 2022 and 8 February 2024. Additionally, he provided two memorandum dated 19 July 2024 and 5 August 2024. In Dr Likely’s first report, he addressed at length the plaintiff’s history and background, noting that she had, “an extensive history of contact with mental health services which began around the age of 14 or 15. She has received intensive psychological and psychopharmacological interventions.” He noted that she had been prescribed a “plethora of psychotropic drugs”.
In answer to specific questions directed to him by the solicitors for the plaintiff he indicated in his first report that in his opinion the plaintiff was suffering from Post-Traumatic Stress Disorder and that the condition “has arisen as a sole result of the cumulative affects of severe psychological stressors suffered by Ms Hoyes during the course of her employment as a support worker with Wellways Australia.”
He went on to note that, “Although Ms Hoyes has a longstanding history of psychological problems, she was psychologically well, unencumbered by any symptoms of psychological morbidity, and functioning well in all spheres of her life at the time of commencing work with Wellways Australia.”
At that time, he stated that his unequivocal opinion was that the plaintiff has contracted Post-Traumatic Stress Disorder as a direct result of the trauma to which she was exposed in the course of her employment. He said, “there were no other contributory factors”.
In his second report of 8 February 2024, Dr Likely indicated that his opinion, as given in his first report was unchanged, not withstanding other information made available to him. The two more recent memoranda remained consistent with those findings and opinions.
In cross-examination, Dr Likely acknowledged that the history that he had with respect to the plaintiff’s psychological problems came from both what she told him and information from other medical reports and records. In particular, Dr Likely was taken to the records obtained from Headspace and how he might have utilised them. He said:[25]
Would I be right in saying that headspace documents are critical because they’re the treating therapists?---They’re important, yeah.
Well, not merely important, but because they’re dealing with her on a day-to-day basis, and quite voluminously – you know, it might be several times a week, certainly several times a month – that their comments and observations are critical in determining the pre-existing condition of a client?---Yes.
Okay. And so where, in a case like this, you would have some inconsistency between what headspace says and what the client might say, you would naturally prefer the professional opinion because there’s no reason why that would not accurately reflect what the client had suffered or said at the time?---Yes. It would depend on who made those entries, your Honour.
Yes. So when you came to write your report, what weight did you give to the headspace documents?---They’re extremely important, your Honour, because they contain reference to what I consider to be risk factors. For example, as an analogy, I talk – I tell everybody that risk factors for developing a heart attack include smoking, family history, high – high blood pressure, obesity, and so on. The factors of these – what’s documented in the headspace notes, in my opinion, is a very good and clear documentation of risk factors. So my formulation is that she sustained – Ms Hoyes, should I say, sustained a psychological injury as a result of the stressors which are discussed in both of my reports. The – what’s discussed in the headspace notes is identified risk factors.
So when it comes to a question of weight, did you give the headspace reports any weight in determining your conclusion?---Oh, yes, of course.
Yeah. And can I suggest that the weight that they should be given because they were written by the therapists acting at the time, and were voluminous, would be considerable?---Yes.
[25] Transcript Day 2, page 41 line 14 – line 44
After significant questioning following this exchange, relating specifically to earlier incidents and assessments, the following is said:[26]
[26] Transcript Day 2, page 46 line 1 – 32
Yes. So my difficulty with this is, is, the conclusion that you reach, or the comment that you make that, at the time of the incident, the subject of this action, she was psychologically well?---Sure.
And my suggestion is that, the headspace documents are showing there are lots of things to suggest that she was not psychologically well at that stage, including the later effects, on-going effects of this rape which had happened some years before?---Yes, I accept that. That’s perfectly reasonable.
And can I keep with Dr Shah’s report. He comments this, the third paragraph down on page 395:
Maddison is experiencing frequent nightmares and flashbacks and is easily triggered by certain deodorants and seeing cars that look like her ex-partner’s car.
?---Yes.
Again, that’s something which is psychologically concerning?---Very much so.
Yes. Would I be right in saying this pre-existing psychological problem that Ms Hoyes had was something which was going to continue into the future. Was likely to continue into the future?---Yes. Is was likely to do so. Yes.
Yes. And, do I take it then that these sorts of terrible incidents that happened to her in work are things which exacerbated that condition?---That would be reasonable to postulate. Yes.
All right. So I suppose I could say this. So I’m not sure whether it’s something that you can appropriately answer, but, is the type of work that she was doing, involving traumatised children, when she, herself, had psychological trauma was inappropriate for her?---You could – that’s a reasonable suggestion.
Dr Likely was also questioned about his suggestion of perhaps two support workers being involved and noted that it would be client dependent. He said when questioned further that the suggestion was made, “more on the grounds of common sense than on – than on anything else”.
He accepted that before any such arrangement was made there would need to be an investigation by an appropriate authority or expert.
Additionally, he was asked about the availability of counselling as suggested in his reports and he agreed that the important thing to look for with counselling was whether or not proper professional counselling was offered.
Dr Likely’s reports and evidence were of assistance, especially in the area of considering any pre-existing conditions.
Called for the defendant was Luke Murphy, a consultant and forensic psychiatrist. Dr Murphy provided two reports relating to the plaintiff dated 10 November 2022 and 30 May 2024. In addition, there was a memorandum dated 2 August 2024. In his first report, after considering his interview with the plaintiff and considering the considerable notes regarding prior treatment, he opined:[27]
Ms Hoyes has extensive pre-existing problems with her mental health resulting from repeated life trauma in her family of origin and from her romantic partners. She has prominent borderline personality traits including mood instability, anger management issues, reckless behaviour, self-destructive behaviour, unstable self-image, unhealthy relationships, and substance abuse. Her persistent symptoms meet the DSM 5 criteria for 309.81 Post-traumatic Stress Disorder. Under the ICD-10 classification, she would fit the diagnosis of chronic post-traumatic stress disorder.
Ms Hoyes has required extensive psychiatric treatment since 2015. With age, treatment, and maturity, her complex post-traumatic stress disorder is beginning to improve.
There was an observable deterioration in her mental health following an incident that occurred at work on 16 August 2019. Based on the records of Dr Madd, and my expert observation today, I am satisfied that there was a temporary exacerbation of her pre-existing post-traumatic stress disorder caused by that event.
In the meantime, Ms Hoyes’ mental health has largely returned to the expected trajectory of her pre-existing condition, and she no longer requires any psychiatric treatment for the work-related temporary exacerbation.
However, Ms Hoyes will need long term treatment for her pre-existing condition. Her current treatment is appropriate, and I expect she will need more intensive treatment at times because her mental health is likely to wax and wane depending on her general level of stress. She is particularly likely to relapse if she experiences further interpersonal difficulties.
Despite her longstanding mental health problems, Ms Hoyes appears to be making good progress in her career as a laboratory scientist. Because of her pre-existing condition she will have occasional difficulties with workplace relationships, but she is otherwise able to work full time and there are no special precautions that she should observe.
Ms Hoyes has mild whole personal impairment. On the PIRS rating scale, her median class is 2, her aggregate score is 9 and, after adjusting for the effective pre-existing impairment, her claim related impairment is therefore 4%.
[27] Report of Dr Lucas Murphy dated 10 November 2022, page 14
In answering questions specifically directed to him regarding the plaintiff, he noted, “Judging by her Headspace records, Ms Hoyes personal life is chaotic and she appears to have experienced other misadventures”. He continues, “Ms Hoyes mental health has been fragile for many years. She has required significant treatment. She appears to experience exacerbations in her mental health problem several times a year.”
In his second report, Dr Murphy noted the uncooperative nature of the plaintiff’s interaction with him and his receptionist. Dr Likely noted this when asked and indicated that it probably was reflective of the plaintiff seeing Dr Murphy as against her. In describing what he termed, “History of Claim”, Dr Murphy noted the following:[28]
I must repeat at this point that Ms Hoyes was largely uncooperative with assessment today. She opened the meeting by saying that my first report was dishonest because, ‘you said that I didn't have PTSD related to my claim’.
When we spoke about this in October 2022, I noted that Ms Hoyes became distressed talking about a hostage incident that occurred on 16 August 2019, which I decided had caused a recognisable but temporary deterioration in her mental health.
During today's examination, Ms Hoyes kept repeating that, ‘I have PTSD from work. The PTSD is affecting my life and my ability to work. The PTSD is from a lot of events because I was exposed to high trauma, and assaulted, and held hostage, and kids tried to stab me’. She said that the main issue occurred in August 2019 and that she, ‘never had a diagnosis of PTSD before that except for the trauma from November 2018’.
Ms Hoyes did not want to elaborate further. If I asked about parts of what she said, Ms Hoyes would simply repeat the whole statement all over again -followed by the assertion that what I wrote in my previous report was not based on what she had told me.
[28] Report of Dr Lucas Murphy dated 30 May 2024, page 10
In his executive summary he said[29]
[29] Report of Dr Lucas Murphy dated 30 May 2024, page 13
Prior to the events for which she is claiming, Ms Hoyes was already in therapy for help with earlier trauma, including substance abuse and domestic violence from her parents, and rape from her ex-boyfriend when Ms Hoyes was 15 years old.
Even during the time period for which Ms Hoyes is now claiming, her therapy notes place very little emphasis on the claimed events, and continue to largely focus on relationship problems.
Ms Hoyes was assessed by a psychiatrist, Dr Shah, in March 2017. Dr Shah confirmed a diagnosis of recurrent depressive disorder - diagnosed at age 15, but likely present since age eight or nine.
Entries leading up to November 2018 continue to document active mental health problems.
Following the events for which Ms Hoyes is claiming, her treating psychiatrists continue to debate whether she may have had either bipolar disorder or borderline personality disorder.
No one except Dr Likely concluded that Ms Hoyes’ current mental health problems are entirely a reflection of the events for which she is claiming.
Since I last saw her, Ms Hoyes’ has made good progress within her career. She is now a medical scientist for Pathology Queensland, working in a full-time position where she is receiving positive feedback with regards to her performance.
Dr Murphy, like Dr Likely was cross-examined in respect of his reports and opinions. After some banter between Counsel and the witness about correct names of other doctors and places of attendance by the plaintiff for treatment, the following was said:[30]
So do you mean that the work-related events contributed significantly to the exacerbation of the pre-existing condition, however, were not true – or were not the cause of a new or a fresh condition. Is that a fair thing to say?---That’s – yes. That’s – that’s quite correct.
Okay. Now, do you draw a distinction between the term “exacerbation”, and the term “aggravation”?---Yes.
And what distinction do you draw?---An aggravation is a permanent worsening of a pre-existing condition. An – an exacerbation is a temporary worsening of a pre-existing condition.
[30] Transcript Day 2, page 69, line 27 – line 37
Dr Murphy in answer to the statement, ‘is it fair to say that she, in your view, was suffering a form of post-traumatic stress disorder prior to the events,’ responded ‘Absolutely.’ He went on to acknowledge his position in both reports as being one where the plaintiff’s current mental health is “largely what we would expect as the natural trajectory of her pre-existing post-traumatic stress disorder.”
Dr Murphy was challenged regarding this statement when it was put to him:[31]
[31] Transcript Day 2, page 74, line 9 – line 40
Now, Doctor, in respect to the criteria set out in the DSM-5 there needs to be satisfaction of a number of rather prescriptive matters. But in paragraph A there is references to exposure to actual threat and death, serious injury, etcetera, directly experiencing traumatic events and so forth. And I’m sure you can recite those by heart. But there is no reference is there in your report or indeed in the only psychiatrists whom you have relied upon or seen Dr Seth in respect to what any stressor is in respect of any primary post-traumatic stress disorder, correct?---No.
No?---If you go to page 332 of Dr Seth’s report she’s written Personal History about two-thirds of the way down the page.
What – what page is this, Doctor?---Three-three-two of your bundle.
Yeah? Yeah?---Under the heading Personal History.
Yeah? Right? Okay. Is that it?---The doctor’s written:
Sexual assault by an ex-boyfriend of age 16.
Yeah? And that’s it?---Yes.
Yeah? That’s it?---That’s it.
That’s - - -?---Yes.
Right. Okay. No further - - -?---That meets criterion – that well and truly meets criterion (a) for post-traumatic stress disorder.
With – no further information?---No because Doctor’s also set out her mental state examination on the day and has listed the symptoms that she observed on the day.
He was challenged as to the basis of his assessment but remained firm as to his position with a pre-existing condition existing. Dr Murphy had put to him that the only doctor who suggested that the current mental health problems are entirely a reflection of the events for which she is claiming was Dr Likely. He denied that, suggesting that it was rather a situation where there were other psychological factors at play but only Dr Likely suggested post-traumatic stress disorder came about from these events. In other words, was not pre-existing. This was specifically put to him.[32]
So, Doctor, I suggest that the condition from which she suffered after the 16 August 2019 event was the onset of post-traumatic stress disorder and not an exacerbation of a pre-existing condition, and we’ve gone through and I’m just putting that to you formally. You would disagree with that proposition?---Yeah. I – I would disagree.
[32] Transcript Day 2, page 83, line 1 – line 5
Dr Murphy was vigorously challenged as to his position in respect of post-traumatic stress disorder but remained adamant that all indicators were that the condition was in existence from events earlier than those involving the juveniles cared for through the services provided by the defendant.
I was most assisted by Dr Murphy’s evidence and, particularly where there were the proper concessions made by Dr Likely, am far more persuaded to his opinion that the plaintiff has extensive pre-existing problems with her mental health and that the various indicia meet the DSM-5 criteria for Post-Traumatic Stress Disorder.
In that circumstance, I am satisfied that the plaintiff did suffer from pre-existing mental health conditions and that the significance of that cannot be underestimated in the assessment of this matter. That is especially so when it was only known to the plaintiff that there may have been a pre-existing medical condition which gave rise to anxiety, depression and other conditions that could be triggered by certain objects, things, or even smells around the plaintiff.
The plaintiff, in her evidence, described her medical condition shortly prior to commencing work with the defendant as PTSD and Bi-Polar Disorder Type 2. However, when enquiries were made by the defendant at the time of the plaintiff seeking employment, she only disclosed a medical condition of “depression – managed”. It is not clear from the evidence, or at all, what the plaintiff might have meant by that answer but it is clear that the plaintiff, by that answer, sought to convey that there was no medical impediment to her working as a support worker for the defendant.
That is even more the case, when the plaintiff was given information at the introductory stage of her employment as to the young people she may be asked to care for and the characteristics of these young people. It was only the plaintiff, with the knowledge held by her of any pre-existing medical conditions, that could assess the effects of working with such young people could have upon her. No indication was given by the plaintiff to the defendant and the defendant was, therefore, unable to give any consideration to the specific needs or vulnerabilities of the plaintiff, any possibility of an escalated risk of injury and therefore, any additional precautions that might be needed by the plaintiff.
The articulation or identification of the risk is therefore focussed upon the three incidents identified by the plaintiff, but most specifically the third incident. However, it is not only a question of the risk to the plaintiff of psychiatric injury whilst engaged in the care and supervision of the young person, PDL, but also, an assessment of the duty owed by the defendant to take precautions that a reasonable person in the position of the defendant would have taken.
Having found as I do, that there were pre-existing medical conditions relating to the plaintiff and that they were not, in any real way, identified or flagged for the defendant, it is inconsistent to suggest that they should be taken into account in determining the type of precautions that ought reasonably to have been implemented by the defendant. As already identified, there were considerable supports available for the support workers, provided by the defendant and notified to these workers, including the plaintiff, both at the introduction to the employment and restated at various house meetings, support structures and even on constant display through pamphlets, brochures and otherwise.
In that regard I am mindful of the proposition elucidated by the High Court in Koehler v Cerebos (Australia) Ltd[33] where consideration was given to the nature of the defendant’s duty to an employee, particularly in circumstances where the work performed by the employee may be such as to be inherently and obviously dangerous to the psychiatric health of the employee. As the court noted, when considering those propositions from Koehler v Cerebos (Australia) Ltd[34], in Kozarov v Victoria[35], in such situations, the “employer is duty bound to be proactive in the provision of measures to enable the work to be performed safely by the employee.”
In this case such steps were, as I have found, taken and there was a proper recognition of the need to establish and maintain a support system for the support workers. This was, following the third incident, again raised with the plaintiff, and emphasised as available. It was the plaintiff who declined the assistance offered and in fact continued the exact same employment subsequent to that incident.
It is in this circumstance that the plaintiff is required to show that the steps taken and precautions and support in place were not reasonable or adequate. The clear evidence of the witnesses called for the defendant was that those precautions were available and were implemented. As well, they were emphasised and encouraged. The plaintiff’s case is to say that what was in place was neither adequate nor reasonable in the circumstances, and that further precautions, as I have previously noted, were required.
However, when consideration is given to what was in place and how it was implemented on the part of the defendant, it is not open to find that such further precautions were required in the situation that the defendant understood existed.
The defendant had made known to the plaintiff that there were qualifications necessary for continued employment. Those requirements included enrolment in a course to obtain a diploma of child youth and family intervention, if not already held. But the obligation to enrol in the diploma did not preclude obtaining the work immediately. The obligation was to obtain the qualification within a reasonable period, which was communicated to the plaintiff and was done by her. The Departmental requirements were known to the defendant, made known to the plaintiff and complied with.
Thereafter, there were compliance requirements with regard to house meetings and other training or support sessions that were made known to the plaintiff and as indicated in evidence from the defendant’s employees, those compliance obligations were required to be met or there could be and would be serious consequences in respect of employment.
There was no failure on the part of the defendant in respect of ensuring that qualifications were obtained and maintained.
Any suggestion that there was a failure by the defendant to provide or offer psychological counselling or support is contradicted not only by the evidence of the defendant’s witnesses but by the evidence of the plaintiff herself. I have already commented upon the services and supports offered, as well as the communication to all support workers of their availability. The plaintiff acknowledged that she knew of the supports available and in particular knew, following the third and most serious incident that they were there and that she was encouraged to take up that support. She chose not to do so, and that it cannot be suggested that such counselling, support, or therapy should have been mandatorily required to be undertaken. I note the specific evidence of both Dr Likely and Dr Murphy, that mandatory counselling could in fact be detrimental and could lead, itself, to adverse mental health consequences.
I am satisfied that in all the circumstances, the defendant had in place proper support and counselling services for all employees and that, notwithstanding the plaintiff’s own knowledge of their availability, further notice was given to the plaintiff of them being available and that the plaintiff chose not to take them up.
Of particular significance here, was the notion that more enhanced support, by the provision of an additional care worker was required, if not for all the young persons in care, then certainly in specific circumstances and that PDL was one of those for whom additional workers were required. However, Dr Likely specifically agreed that such an arrangement was not a ‘quick’ fix and that it would need to be assessed as to whether, in respect of that young person, the involvement of a second support worker may not have had an adverse effect.
PDL was a child with numerous issues and the defendant had previously given consideration to alternative means of meeting her needs. An approach had been made to the Department of Child Safety for funding for an additional support worker. It would appear that the approach was unsuccessful, but it is not known if that was following an assessment of whether PDL was a good fit with such an arrangement or whether other considerations arose, including simply financial or staffing considerations. There was evidence to show that the provision of an additional support worker for PDL would have significant cost implications, in the vicinity of $6,900 per month and without funding being approved, as noted in s305B(2)(c) of the WCRA[36], there would have been an overwhelming burden in taking such a precaution.
[36]Workers Compensation and Rehabilitation Act 2003 (Qld) s305B(2)(c)
In any event, the failure to successfully apply for funding for an additional support worker does not mean that support for PDL should have immediately ceased. Support workers were able to indicate whether they wished to continue to work with various young people. Some would not work with PDL, but others did and even continued to do so after incidents with the young person that directly involved them. It was only following the third incident with PDL and the plaintiff, when a blade was present and in her possession, that her care was relinquished. Previously, there had been incidents with her, mostly involving verbal threats and self-harm, though there was one incident involving physical acts towards a support worker, but support workers continued to work with her.
It may be that it was a more difficult and fraught situation of care support to work with PDL, but her needs, even if not appreciated by her, needed to be met and supported. Provision of a second support worker may have assisted but that is unknown, there being no evidence of any assessment being done as to its appropriateness. That step, or even in the alternative, the relinquishment of her care, were not considerations at the time of the third incident and was not in my assessment, a failure on the part of the defendant to implement a reasonable precaution.
In all the circumstances, considering the medical evidence, particularly of Dr Murphy and the precautions that were in place, as well as what was known by the defendant about the plaintiff, causation is not proven. In any event, the findings I have made regarding the appropriateness of the psychological support and assistance, and the unknown benefit, if any, of a second support worker for PDL combined with those considerations of the financial burden of taking such a precaution, if warranted means that I am not satisfied that there is a breach causative of any injury in the circumstances.
In that respect, I am mindful of the provisions of s305D of the WCRA which provides:[37]
[37] Workers Compensation and Rehabilitation Act 2003 (Qld), s305D
305D General Principles
(1) A decision that a breach of duty caused particular injury comprises the following elements—
(a) the breach of duty was a necessary condition of the occurrence of the injury ("factual causation");
(b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused ("scope of liability").
(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1) (a) —should be accepted as satisfying subsection (1) (a) , the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.
(3) If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach—
(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b) ; and
(b) any statement made by the worker after suffering the injury about what the worker would have done is inadmissible except to the extent (if any) that the statement is against the worker’s interest.
(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.
The question is whether the plaintiff would not have suffered the harm said to have arisen were it not for the defendant’s negligence. As noted by French CJ in Amaca v Booth[38]:
“Generally speaking, that causal connection is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent.”
As is noted, the defendant has accepted the issues of risk as identified in s305B(1)(a) & (b) WCRA.[39] But that concession does not dispose of the question as to whether there has been a breach of duty. The existence of a foreseeable and not insignificant risk of injury does not immediately and of itself, show that there has been that breach of duty.
[39] Workers Compensation and Rehabilitation Act 2003 (Qld), s305B(1)(a) & (b)
There remains the real need to consider s305B(1)(c)[40] and to assess the magnitude of the risk and its degree of probability. As was noted by Mason J in Wyong Shire Council v Shint:[41]
“In deciding whether there has been a breach of the duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”
[40]Ibid, s305B(1)(c)
[41] (1980) 146 CLR 40
As was submitted by Counsel for the defendant, “To succeed on breach, the plaintiff must demonstrate that viewed prospectively, a reasonable man’s response would have been different to that taken by the defendant in order to substantially alleviate the risk of psychiatric harm. The duty does not extend to preventing the plaintiff being at all exposed to the risk of any psychiatric harm… the touchstone is one of reasonableness.”[42]
[42] Defendant’s outline of submissions dated 8 August 2024, [67]
The question then arises as to how the defendant in this case was to reasonably assess any risk of psychiatric harm to the plaintiff. That enquiry was begun when the question was asked about medical conditions suffered or experienced by the plaintiff and the answer was given, “depression – managed”. What more could or should have been asked in respect of that answer that might not be expected to impinge upon the dignity of the individual employee and their right to privacy? Such matters were directly addressed in Hegarty v Queensland Ambulance Service[43], noting:
“In cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer’s intervention…”
[43] (2007) QCA 366
As is clear therefore, from s305D(1)(a) WCRA[44], a plaintiff must demonstrate the existence of a causal link between the alleged breach of duty and the alleged damage. In other words, what should the defendant have done to exercise reasonable care and also, how would that particular action have probably prevented the damage. The onus is therefore on the plaintiff to prove, on the balance of probabilities, that had the defendant acted differently, the injury would have been avoided.
[44] Workers Compensation and Rehabilitation Act 2003 (Qld), s305D(1)(a)
As is hopefully clear from all that has gone before in these reasons, I am not at all satisfied that the psychiatric injuries claimed by the plaintiff to have arisen, following her employment with the defendant, were, on the balance of probabilities, caused by any breach of duty by the defendant.
Quantum
Despite the findings I have made, I turn now, as I am required, to quantum in the circumstances that I have found to exist.
As was noted by the defendant in the outline provided there were a number of matters that take some greater significance in this assessment of quantum. The first of those must be the fact that I am satisfied that there were pre-existing mental health conditions relating to the plaintiff. As Dr Murphy opined in his two reports and confirmed in cross-examination, “Ms Hoyes suffered from pre-existing PTSD”. There was some exchange relating to previous assessments and diagnosis, but that the various diagnosis, be it Bipolar Type 2, PTSD, or Borderline Personality Disorder have many similarities and are one of the ways of clearly identifying that there was a significant pre-existing condition.
Dr Murphy explained further the distinction between exacerbating or aggravating a pre-existing condition as a temporary worsening as opposed to a permanent worsening of that condition. He found, and I accept, that what occurred was a temporary exacerbation of that pre-existing condition for about 18 months and that her current presentation reflects the natural progression and expected trajectory of the pre-existing condition.
In any event, whilst the plaintiff did not resume her work as a disability support worker after finding other work, more directly related to her studies, she did continue to work for the defendant for another four to five months as a support worker. Even if, as Dr Murphy concluded, she could not continue as a support worker because of having avoidance symptoms specific to the workplace of the defendant, she was still able to, and did work full time in her chosen career.
Dr Murphy noted specifically in respect of the issue of the exacerbation of a pre-existing condition that it had abated by his examination on 20 October 2022 and that there were no ongoing future treatment requirements attributable to the work-related condition. In other words, ongoing issues in respect of the plaintiff’s mental health were attributable to the pre-existing condition and not what might have arisen from any incident/s in the defendant’s workplace.
Additional to the finding of a pre-existing condition as being significant to the fact that the plaintiff acknowledged that she was functioning well, coping with life, and had maintained full time employment. Whilst the plaintiff gave evidence to the effect that she took time off on occasion by utilizing her sick leave entitlements, there is no connection between that and the incidents, other than the statements by the plaintiff herself. Again, I would note that in my assessment, no such connection is shown, let alone proved.
Damages
With those matters noted, consideration of general damages arises. Section 306P of the WCRA provides as follows:[45]
[45] Workers Compensation and Rehabilitation Act 2003 (Qld), s306P
306P Calculation of general damages
(1) For an injury, general damages must be calculated by reference to the general damages calculation provisions applying to the period within which the injury was sustained.
(2) In this section— general damages calculation provisions, applying to a period, means the provisions prescribed for the period under a regulation.
As such, general damages must be calculated by reference to the general damages calculation provisions as prescribed by the Workers Compensation and Rehabilitation Regulation 2014 (“WCRR”)[46] and applying to the period within which the injury was sustained.
[46]Workers Compensation and Rehabilitation Regulation 2014
It is then necessary to determine the proper categorisation of the plaintiff’s condition having regard to the relevant schedules. This involves the assessment by the psychiatrists of a Psychiatric Impairment Rating Scale (“PIRS”). By this means, an appropriate Injury Scale Value (“ISV”) can be attributed by the Court. The PIRS assessment takes into account the things that would typically be considered as part of the calculation of general damages such as the injuries impact on quality of life, social relationships and functioning generally.
In that regard, Dr Murphy’s assessment was a four percent PIRS as at 20 October 2022. A more current assessment was not made by Dr Murphy because of the difficulties he noted in his second attendance with the plaintiff. Dr Likely’s PIRS assessment was considerably higher but, as I have indicated, I am far more comfortable with the evidence of Dr Murphy, noting the concessions in evidence given by Dr Likely without any adjusted PIRS assessment. Schedule 9 of the WCRR[47] provides for the ranges of ISV’s available, and in Item 12 (a moderate mental disorder) allows for an ISV between 2 – 10. The comment attaching to Item 12 relates to a moderate impairment exampled by a mental disorder with a PIRS rating between 4 and 10 percent.
[47]Ibid, Schedule 9
As I indicated previously, Dr Likely’s assessment is higher and falls within Item 11 (a serious mental disorder). However, I do not find that appropriate in assessing the range. Rather, an assessment of an ISV between 2 – 10 is reasonable in light of determining that this incident gave rise to a temporary exacerbation of a pre-existing condition over a period of 18 months. An ISV of 5 would be appropriate and that equates to general damages of $7450.
Some assessment of post special damages is required but was not directly addressed by the plaintiff other than by way of ‘Schedule C’ to her Quantum Statement. It is indeed a difficult consideration to look at considering the nature of the supporting documentation and the issues that arise in light of the finding of there being a pre-existing condition. In the circumstances, I consider it appropriate to allow a global award inclusive of interest in the sum of $7,500.
In respect of post-economic loss, the plaintiff claims a global sum of $39,000 as a means of accounting for time off work as a result of her ‘psychological symptoms’ and the negative impact upon her career progression. Such a figure is difficult to accept however when consideration is given to the finding of a temporary exacerbation of 18 months, in other words until approximately February 2021. The plaintiff’s own indication is that during this period she struggled but utilised her sick leave. She was therefore paid and suffered no economic loss in that sense. Further, the plaintiff continued working with the defendant, all be it she says with less frequent shifts though that reduction in shifts seems to accord with commencing employment as a laboratory assistant with Pathology Queensland at the Townsville University Hospital. She continued in that work until May 2020 and does not suggest any limitations or difficulties in her work there.
There are other concerns also that arise in respect of any claim for Post Economic loss. They relate to changes in income earned in various years from 2019 onwards. There are some reductions in 2020 and 2021 but thereafter, as would be expected with normal career progression, the plaintiff’s income has increased. Some of the reduction in those two years 2020 and 2021 can be directly related back to the plaintiff relocation to Melbourne in May 2020 and her not obtaining employment there until August 2020. These are factors separate and apart from any psychological considerations and do not assist in any assessment of post economic loss.
Similarly, loss of opportunity due to psychological considerations is hard to consider in light of the evidence of the plaintiff’s own witness, Ms Davidson. She described the plaintiff as having a bright future without any suggestion of limitations arising for any reason.
Ultimately, I accept some small issue arises with past economic loss and attribute in a total way $5,000 for past economic loss. Accompanying that would be a superannuation component calculated at 9.5% for $475.
Future economic loss is claimed by the plaintiff in the sum of $541,450. As determined in her Quantum Statement, this is based on an assumption that she would have worked as a medical assistant until age 67 and at the time of trial was 28 years old. As such, a claim is made for 39 years, and the basis of the claim is calculated upon a net weekly loss of $1,400 totalling $1,274,000. It is discounted by 50% to account for residual earning capacity and contingencies and then further discounted by 15% to account for her pre-existing psychiatric condition. An alternative calculation was put in the Further Amended Statement of Claim of $509,600 but the first figure is relied upon in the plaintiff’s submissions of the 8th of August 2024.
In any event, there are real issues of concern as to any such calculation in light of the findings with there being a pre-existing psychiatric condition and only a temporary exacerbation due to the incident in the employ of the defendant. Dr Murphy concluded in his second report that there is no ongoing incapacity for work and that the plaintiff could work full time. I do however note that there is some evidence by the plaintiff as to issues with full time work and a desire to reduce her hours of employment. This may be as submitted by the defendant as a lifestyle choice, but some consideration should be still given to the psychiatric issues.
The defendant does concede some small sum in respect of the plaintiff’s loss of ability to return to work with/ for the defendant and submits that a small global sum of $20,000 could be awarded. There would however be a discount for contingencies of 15% and adopting the methodology in FASOC, an additional discount of 15 – 20% for her pre-existing condition. In total, a discount therefore in the vicinity of 35% is suggested.
All up, and adopting a need for a global award, the defendant submits that an appropriate amount for future economic loss would be $20,000.
I am of the view that the amount sought by the plaintiff is inordinately high but that, by the same token, a global award inclusive of discount of $20,000.00 does not reflect all of the possibilities at play here. I am satisfied that a global figure, inclusive of discounting would be $45,000. Future lost superannuation benefits at 11.33% would amount to $5,099.50.
Finally, consideration needs to be given to future special damages. These are detailed again in the plaintiff’s Quantum Statement under the heading, ‘Future Medical and Rehabilitation Expenses’. These include regular attendances with a general practitioner over a life expectancy of 61 years, which on the 5% tables, and discounted by 25%, amounts to $4681. Further, Dr Likely suggested ongoing treatment by a psychologist specialising in the treatment of trauma with such treatment again calculated upon the same basis as the attendances with the general practitioner equating to $11,702.
Dr Likely also opined that the plaintiff would benefit from attending a trauma treatment program of about 8 weeks duration as an inpatient. The cost would be in the vicinity of $25,000.
These claims however are based on Dr Likely’s findings and opinions and do not reflect the findings I have made. In particular, they take no account of the fact, subsequently conceded by him, that there were pre-existing psychiatric conditions. Dr Murphy, however, did not make further recommendations for treatment as he found that any work-related exacerbation had passed. Further treatment if required would be as a result of her pre-existing condition. Dr Murphy’s opinion accords with the findings and accordingly I make no award for special damages.
As such, the total of the plaintiff’s damages if liability was found is $70,524.50. However, in light of my earlier findings, the order of the Court is as detailed under the orders noted.
- AGLC
- Hoyes v Wellways Australia Limited ACN 093 357 165 [2025] QDC 125
- Case
- [2025] QDC 125
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the psychiatric injury suffered by the plaintiff was caused by the workplace incident, and whether the defendant breached its duty to provide the plaintiff with a safe system of work by failing to take the steps identified by the plaintiff. The court also had to consider whether the defendant fulfilled their duty to take reasonable care to avoid psychiatric injury.
The court found that the plaintiff’s psychiatric injury was not caused by the workplace incident, and that the defendant had taken reasonable steps to provide a safe system of work. The court found that the plaintiff’s psychiatric injury was caused by a combination of factors, including pre-existing mental health issues, and that the workplace incident was not a significant contributing factor. The court also found that the defendant had taken reasonable steps to provide a safe system of work and had fulfilled their duty to take reasonable care to avoid psychiatric injury.
The court dismissed the plaintiff’s claim and ordered that the plaintiff pay the defendant’s costs upon a standard basis as and from 1 December 2022.
Orders
Orders of the court
1. The Plaintiff’s claim is dismissed.
2. The Plaintiff pay the Defendant’s costs upon a standard basis as and from 1 December 2022.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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