Johnson v Berry Street Victoria Incorporated
[2015] VSC 428
•20 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT WANGARATTA
COMMON LAW DIVISION
S CI 2011 04095
| GREGORY JOHNSON | Plaintiff |
| v | |
| BERRY STREET VICTORIA INCORPORATED | Defendant |
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JUDGE: | RUSH J |
WHERE HELD: | Wangaratta |
DATES OF HEARING: | 17 – 20 November 2014 |
DATE OF JUDGMENT: | 20 August 2015 |
CASE MAY BE CITED AS: | Johnson v Berry Street Victoria Incorporated |
MEDIUM NEUTRAL CITATION: | [2015] VSC 428 |
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NEGLIGENCE – Psychological injury in the course of employment – Duty of care – Whether the defendant acted with reasonable care and consideration in the circumstances – Whether any such negligence of the defendant was a cause of injury to the plaintiff – Psychiatric background and foreseeable risk of psychiatric injury of the plaintiff – Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 – Hegarty v Queensland Ambulance Service [2007] QCA 366 – Taylor v Haileybury [2013] VSC 58.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Seelig | Slater & Gordon Lawyers |
| For the Defendant | Mr W.R. Middleton QC with Mr R.H. Stanley | Wisewould Mahony |
HIS HONOUR:
Introduction
Mr Gregory Johnson, the plaintiff, in April 2007, was employed by the defendant, Berry Street Victoria Incorporated (‘Berry Street’) as a residential care worker in Shepparton, Victoria at its Kialla Premises; he had specific care responsibilities as part of a team for a difficult, controlling, complex young teenager with a criminal history named ‘OJ’. Those responsibilities involved shifts of one-on-one care with OJ. Some shifts were sleepover shifts from 4.30pm to 9.00am the following morning.
On 13 April 2007, in circumstances discussed below, OJ informed the plaintiff he was removed from his mother because he was sexually abused by a bikie male friend of his mother’s - he then ‘turned around the looked me straight in the eye and said “You know you look exactly – exactly like that man”’ (‘the 13 April Incident’).[1]
[1]Johnson, Supreme Court Transcript (‘Transcript’) at 64.24.
There was a history of sexual abuse in the plaintiff’s family and the plaintiff said he was devastated by this retort from OJ. Over the next few days of work the plaintiff began to appreciate he could not work with OJ anymore. On 23 April 2007, he approached the senior manager of Specialist Adolescent Care Services for Berry Street in that region, Ms Margaret Bell. He informed Ms Bell he could not work with OJ or any other children for an unknown period of time.[2]
[2]Johnson, Transcript at 70.8.
The plaintiff in this proceeding claims he suffered severe psychological injury in the course of his employment due to the negligence of Berry Street. Whilst a failure to properly train, prepare and inform the plaintiff he would be working with victims of sexual abuse were pleaded as acts of negligence against Berry Street in the Further Amended Statement of Claim these allegations were not pursued at trial. Further, it is not now alleged there was negligence on the part of Berry Street for the 13 April Incident with OJ. In final submissions Mr M. Seelig, counsel for the plaintiff, based the case in negligence against Berry Street, broadly, on two matters:
(a)allowing the plaintiff to work with OJ in the immediate aftermath of the 13 April Incident and more particularly after a staff meeting on 17 April 2007; and
(b)rostering the plaintiff for part-time return to work at its Kialla Premises in Shepparton on 31 August 2007 in the knowledge OJ would be present. The plaintiff was confronted by OJ at the Kialla Premises on this date.
Berry Street denies negligence and maintains that at all times it acted with appropriate care and consideration for the plaintiff. Further, Mr W.R. Middleton QC, senior counsel for Berry Street, pointed to medical evidence he said supported a contention by Berry Street that because of his family and psychiatric background the plaintiff would have suffered psychiatric injury in any event.
Background of the plaintiff
The plaintiff was born in 1959, and as of the date of trial was 55 years of age. He was educated to Year 9. Thereafter he had a number of heavy labouring-type occupations in a sawmill, at abattoirs and as a cleaner. He obtained a truck licence and then obtained trucking work from a friend. On his first day of this work the plaintiff severely injured his right leg stepping onto a footing at a work site. From medical reports it appears this accident occurred in February 1998. The injury required surgery with pins, screws and a plate being inserted into his right leg. After this accident the plaintiff spent 12 months on crutches and did not resume work for many years. His injury would prevent him from engaging in manual or physical employment in the future.
In approximately 2003, the plaintiff commenced study. He initially undertook a refresher course in English and Maths in Leongatha. The plaintiff then pursued studies at Chisholm TAFE in Traralgon. His desire was to work with youth. He undertook courses in disability work, youth work, aged care and basic first aid. To obtain his certificate in disability work the plaintiff was required to complete three hundred hours of practical training and this led to employment on 8 May 2006 with Berry Street assisting in a residential care facility operated in Traralgon.
The plaintiff’s father passed away when he was eight. He stated early in his evidence-in-chief that his older brother sexually abused both his younger brother and himself. Later in his evidence he stated the memory of the sexual abuse by his older brother, as far as it concerned him, had been repressed until shortly after the 13 April Incident with OJ. The plaintiff said he had always remembered his younger brother being abused.
In 1980, with his then partner, he had a son. They later separated.
At around the time he commenced study in 2003 he tried to re-establish contact with his younger brother. He located his younger brother but shortly thereafter his younger brother committed suicide.
In approximately September 2006, the plaintiff decided he would move to Shepparton because his then relationship had broken up and his sister resided in the Shepparton area. The plaintiff was able to maintain employment with Berry Street working in Shepparton.
Events surrounding the 13 April Incident
Initially the plaintiff undertook casual shifts at residential units operated by Berry Street in Shepparton. Around Christmas 2006, the Department of Human Services made a decision to place OJ in one-on-one care at the Fowler Street Residential Unit operated by Berry Street in Shepparton.
The plaintiff was asked to be part of the care team of OJ, a role which he accepted. Ms Bell stated in early 2007, and prior to beginning work with OJ, specific training was provided to the proposed care team established to look after OJ. The plaintiff participated in this training, which was conducted over a period of five days. The plaintiff had access to OJ’s file setting out OJ’s history and why he had come into care. The file disclosed OJ had been sexually abused and the plaintiff was aware of this.
In the course of evidence-in-chief, Mr Seelig asked the plaintiff whether any enquiry was made of him by personnel from Berry Street about any prior history of sexual abuse. The plaintiff stated no such enquiry was made and he did not disclose that history to Berry Street. In so far as the question implied a criticism of Berry Street it was not pursued during the course of the trial.
The plaintiff, in March/April 2007, was working between 34 and 40 hours per week, one-on-one with OJ. This work involved sleepovers on average three to four times a week. The plaintiff was rostered for sleepover on 12 April 2007. On that day OJ had seen his treating psychologist. At the changeover of carers the plaintiff was informed the psychologist had provided OJ with a questionnaire, OJ had not filled in the questionnaire and was very moody, apparently as a consequence of issues raised in the questionnaire.
The plaintiff on commencing his shift examined the questionnaire and described it as ‘very sexual, very private. It was like giving, you know handing him a hand grenade and pulling the pin…’[3] The plaintiff eventually assisted OJ to complete the questionnaire. Later that night OJ started screaming in his bedroom, in what the plaintiff described as a terrifying way. Upon leaving his own secured bedroom the plaintiff discovered OJ in the shower, crying uncontrollably. The plaintiff then made the following observations:
I said “What’s wrong?” He said “Oh, I wet the bed”, which to me meant he urinated in the bed. I tried to calm him down. He was just sobbing. I said “You have a shower. I’ll change your sheets”. And he wouldn’t stop crying. He was uncontrollable. So he’s just sitting in the shower with the shower on while I grabbed – went into his room. I looked in the bed, couldn’t see any water or dampness. Then I seen stains (sic) and realised what he meant by “wet the bed”. He had a wet dream to my belief. So I proceeded to change the sheets while he uncontrollably cried. I never heard him like that before.[4]
[3]Johnson, Transcript at 60.16.
[4]Johnson, Transcript at 62.8 – 62.16.
That night OJ threatened to leave the unit; if OJ left the unit the plaintiff was required to call the police. The plaintiff attempted to but could not calm OJ down. He called Ms Helen Greening,[5] a co-carer, who after a couple of attempts through phone conversations, was able convince OJ not to leave the unit. The plaintiff attempted to calm OJ and during the course of conversation OJ informed the plaintiff he looked exactly like the man who had sexually abused him. The impact on the plaintiff of that conversation was marked:
I said – yeah, I just sort of said, “Right, I’m going to bed”. I laid in bed and I just started thinking about, you know, the consequences of what he said, that – you know, I had pretty – formed a pretty strong bond with this kid and I – yeah, I thought every time I walk in that unit, you know, I reminded him of something evil and terrible that happened in his life and memories come flooding back about it and, yeah, I started going downhill.[6]
[5]The witnesses in the proceeding referred to Ms Greening as Ms Green.
[6]Johnson, Transcript at 64.30 – 65.7.
On the morning of 13 April, Ms Greening relieved the plaintiff and undertook day shift. According to the plaintiff, he informed Ms Greening of the events that had occurred the night before and what OJ had said to him and that Ms Greening said she would inform Ms Bell what had happened.[7] In evidence, Ms Greening said she had no recollection of the phone call made to her by the plaintiff during the evening of 12 April or of a conversation the following morning with the plaintiff.[8]
[7]Johnson, Transcript at 76.18.
[8]Greening, Transcript at 202.21 – 202.31.
The plaintiff recalled that he worked night shift commencing Sunday 15 April to the morning of Monday 16 April and did not work the Monday night. The plaintiff stated there was a staff meeting of the carers for OJ on the Tuesday morning (17 April). At that meeting Ms Bell said she heard what had happened to the plaintiff that he must be devastated and she recommended counselling.
The plaintiff’s evidence is that he saw a counsellor on the following Thursday, 19 April, and next worked with OJ on Friday 20 April and undertook further shifts on the following Saturday and Sunday nights.
The plaintiff, over the course of those shifts, believed OJ had sensed he was vulnerable.[9] On the Sunday night shift the plaintiff stated that OJ convinced him that he should be permitted to sell his BMX bike to repay a debt. The plaintiff realised it would be wrong to assist in this transaction. Nevertheless he facilitated the sale of the bike. He realised he could not cope or continue to work with OJ. After the shift on Monday 23 April he informed Ms Bell he needed ‘to walk away’, that he could not work with children for an unknown period.[10]
[9]Johnson, Transcript at 68.26.
[10]Johnson, Transcript at 70.8.
What the plaintiff states he said to Ms Greening on the morning of 13 April, the morning after the incident with OJ, is the subject of two differing accounts in evidence.
The plaintiff initially stated he had told Ms Greening of the conversation with OJ concerning his likeness to the person that had sexually abused OJ: ‘She looked at me and said how awful that would be for that – for him to say that to me’ and I said ‘Yeah, it was pretty devastating’. She said ‘I’ll go and inform Marg Bell what has happened’.[11] Later in his evidence, the plaintiff stated on the morning of 13 April he informed Ms Greening ‘myself and my little brother had been sexually abused by my older brother and that’s why it had affected me so badly’.[12]
[11]Johnson, Transcript at 65.16 – 65.23.
[12]Johnson, Transcript at 76.19 – 76.21.
In cross-examination, the plaintiff said he did tell Ms Greening about his older brother abusing his younger brother but not that he, the plaintiff, had been abused by his older brother. That memory had been repressed.[13]
[13]Johnson, Transcript at 120.20.
The plaintiff stated in his evidence-in-chief he had no contact with Ms Bell after the 13 April Incident – she never phoned him.[14] The only phone call he received was at a much later date regarding the completion of a Disease/Injury/Near Miss/Accident (DINA) Form (DINA Form).[15] This evidence is incorrect. In fact, after the plaintiff stopped work, he was invited by Ms Bell to her house, was driven by Ms Bell to Melbourne for a psychiatrist’s appointment and was assisted by Ms Bell to fill in the DINA Form and a compensation claim form.[16]
[14]Johnson, Transcript at 77.13.
[15]Johnson, Transcript at 78.2 – 78.3; Plaintiff’s exhibit (PX) 8 (Disease/Injury/Near Miss/Accident (DINA) Form (‘DINA Form’)).
[16]Johnson, Transcript at 78.4 – 78.29.
It is appropriate at this time to refer to the evidence of Ms Bell on this issue:
Because – because I had actually had really valued Greg. I contacted him pretty much every second day while he was off. I attended his house – his unit in Sobraon Street – I think it was Sobraon Street – because I was actually really concerned about his mental health. He certainly wasn’t travelling well. That was why I offered to take him to his appointment in Melbourne because he – we had been talking and he had said that he physically couldn’t take himself – he couldn’t get to his appointment in Church Street in Melbourne. I said “Not a problem. I’ll take you”. I offered him to come to my house, come for tea, come on the weekend.[17]
[17]Bell, Transcript at 176.29 – 177.9.
I was impressed with Ms Bell as a witness. She demonstrated an excellent recall of events, a professional manner and a genuine concern for the welfare of the plaintiff and her staff generally.
As stated above on 17 April there was a unit meeting of the carers for OJ. The plaintiff said Ms Bell spoke to him and encouraged him to have counselling and gave him the card of a Shepparton counselling organisation. Ms Bell stated it was in this discussion with the plaintiff that she first became aware of the plaintiff’s own allegation of sexual abuse: ‘He had a history himself of it’.[18]
[18]Bell, Transcript at 172.31 – 173.1.
Ms Bell agreed that the Monday following this 17 April meeting the plaintiff met with her, stated he could not work with OJ and that he presented in a dishevelled condition. Ms Bell said she encouraged further counselling. She offered work with other young people. The reason she offered that work, she said:
That’s part of our process in terms of staff not being disengaged from the workplace. We have a number of staff who go through an incident and have their debriefing and go through some counselling and remain engaged with the work while they’re at work and that’s actually part of our work process so that they don’t become disengaged and isolated.[19]
[19]Bell, Transcript at 176.6 – 176.12.
The events I have outlined above now form the first component of the plaintiff’s claim. The plaintiff, in his Further Amended Statement of Claim, alleges the following:
6.Further and in the alternative, or on about 13 April 2007 the plaintiff made complaint to a supervisor in respect of the injury and psychological distress occasioned to him by his exposure to the aforesaid youth as referred to paragraph 4 herein.
PARTICULARS
The complaint was made to Ms Helen Green[ing].
7.Notwithstanding the complaint referred to in the previous paragraph hereof thereafter the plaintiff was required by the defendant to continue to work one-on-one with the aforesaid youth in or about the period 14 to 15 April 2007.
8.Further and or in the alternative, on or about 17 April 2007 the plaintiff again made a complaint to a supervisor/manager in respect of the injury and psychological distress occasioned to him by his exposure to the aforesaid youth as pleaded in paragraph 4 herein.
PARTICULARS
The complaint was made to Ms Margaret Bell.
9.Notwithstanding the further complaint referred to in the previous paragraph hereof, thereafter the plaintiff was again required by the defendant to continue to work one-on-one with the aforesaid youth in or about the period 20 to 22 April 2007.
This aspect of the claim in short alleges that Berry Street should not have allowed the plaintiff to continue in his work after the 13 April Incident. This claim was refined in final submissions as set out below. The claim, in the end, was based on allowing the plaintiff to work with OJ after the meeting of 17 April.
The manner in which this aspect of the claim was put by the plaintiff against Berry Street was explained by Mr Seelig in final submissions as follows:
MR SEELIG:I accept that. The proposition I will be putting to you clearly is that as at 17 April, a reasonable employer would have known there was a real issue with his health and having a non-delegable duty of care would have not required him to keep working with the defendant on the weekend of the 22nd to the 23rd, or whatever it was, of April.[20]
[20]Address, Seelig, Transcript at 272.23 – 272.29.
Thus for the plaintiff to succeed on this allegation two matters of proof are required:
(a)that allowing the plaintiff to work between 17 April and 22 April 2007 was negligent; and
(b)that this negligence was a cause of injury to the plaintiff.
Two matters in particular were relied upon in support of the contention that Berry Street was negligent in allowing the plaintiff to work between 17 April and 22 April 2007:
(a) Notes of a meeting of the Care Team Run Sheet of 19 April 2007 (‘Run Sheet’) were tendered in evidence.[21] These notes recorded in part:
[21]PX-1 (Care Team Run Sheet dated 19 April 2007 (‘Run Sheet’)).
Marg raised issue with Sharon regarding questionnaire given to OJ that had some personal questions that resulted in OJ taking these emotions out on male staff member having significant impact on the emotional welfare of the staff member.[22]
(b) The description of the impact of what OJ said to the plaintiff contained in the DINA Form[23] completed by Ms Bell on 16 May was noted as follows: ‘[OJ] advised Greg that he reminded him of a man who had raped him. This raised personal history causing feelings of anxiety and stress’.[24]
[22]Ibid at 3.
[23]PX-8 (DINA Form).
[24]Ibid.
Ms Bell stated she was not informed by Ms Greening of the 13 April Incident prior to the meeting of 17 April.[25] Ms Bell said she first heard of the 13 April Incident when the plaintiff spoke with her prior to the staff meeting of 17 April in her office. Ms Bell stated the plaintiff said to her:
…he wasn’t travelling too well because he’d had an incident with OJ and he’d said that OJ had said that he looked like the man who had either raped him or sexually abused him – I can’t remember what term Greg actually used at the time – and then he went on to say that that had raised stuff for him because he had a history himself of it.[26]
[25]Bell, Transcript at 172.5.
[26]Johnson, Transcript at 172.26 – 173.1.
Ms Bell said she was taken aback, she valued Greg, she felt for him. She stated her first response was to provide verbal support and emotional support and refer him to an independent confidential Employment Assistance Program (EAP). This advice in fact resulted in the plaintiff attending counselling the following Thursday, 19 April. It was not until the following Monday, as set out above, that the plaintiff went to see Ms Bell stating he could not cope. Ms Bell agreed that if requested by the plaintiff she could have replaced the plaintiff with other staff members so that he did not return to work with OJ.[27] Mr Seelig then asked the following of Ms Bell:
If you had been requested by Greg?---Yes. So, as an organisation we have a process whereby – and I explained it before where a staff member goes through a difficult situation with a young person. We don’t automatically take them off shift or cease them from working because it is not always the most productive thing to do. So we allow them the opportunity to go and have debriefing and then they make a decision about whether or not they are keen to come back to work. Unless we see in their work practices when they do return that they are not able to function in them and then we ask them to go offline and receive medical assistance.
So you do. You can ask them to go offline?---Yes, if their work is such that we would deem that.
Did you ask Greg if he wanted to continue working with OJ?---Well, not at that initial point because he would have been just having the debriefing process.[28]
[27]Bell, Transcript at 189.13 – 189.16.
[28]Bell, Transcript at 189.19 – 190.3.
Negligence and the plaintiff continuing to work
In discussion with me during the course of final submissions Mr Seelig stated that problems for the plaintiff did not arise until the weekend following the meeting of 17 April.[29] Mr Seelig said there was ‘no suggestion’ that the plaintiff did not cope well with the weekend shifts immediately following the 13 April Incident.[30] The evidence is consistent with this submission. Later I asked Mr Seelig the following question:
HIS HONOUR: Is there anything really – to get to the point, is there anything that directly goes to the issue of inappropriateness of continuing to work after the incident of 13 April?
MR SEELIG:If you say ‘directly’, I would say no. If the question is ‘indirectly’, absolutely.[31]
[29]Address, Seelig, Transcript at 269.7.
[30]Address, Seelig, Transcript at 268.27.
[31]Address, Seelig, Transcript at 271.26-.31.
It was submitted the proper course of action on the part of Berry Street should have been to remove the plaintiff on 17 April from work with OJ. This, Mr Seelig said, was recognised when Ms Bell completed the DINA Form:
Q.Describe the corrective action taken to alleviate, remove the hazard or prevent the recurrence.
A. Greg has ceased working with [OJ].[32]
Mr Seelig stated:
We say that was absolutely the right response, it just came far too late.[33]
In saying that the response ‘came far too late’ it is to be recognised the response occurred immediately upon the plaintiff indicating he could not cope with his work. The response was, upon that knowledge, entirely appropriate. There is no evidence that prior to this date Berry Street was on notice that the plaintiff was not coping with his work.
[32]PX-8 (‘DINA Form’).
[33]Address, Seelig, Transcript at 276.24.
Mr Seelig referred me to the High Court authority of Koehler v Cerebos(Aust) Ltd (‘Koehler’)[34] and the words of the plurality in that case:
The conclusion that the employer had no reason to suspect that the appellant was at risk of psychiatric injury is the reason upon which the Full Court’s conclusion hinged. Here there was no indication (explicit or implicit) of any particular vulnerability of the appellant. As noted earlier, she made many complaints to her superiors but none of them suggested (either expressly or impliedly) that her attempts to perform the duties required of her were putting, or would put, her health at risk. She did not suggest at any time that she was vulnerable to psychiatric injury or that the work was putting her at risk of such an injury. None of her many complaints suggest such a possibility. As the Full Court said, her complaints may have been understood as suggesting an industrial relations problem. They did not suggest danger to her psychiatric health. When she did go off sick, she (and her doctor) thought that the illness was physical, not psychiatric. There was, therefore, in these circumstances, no reason for the employer to suspect risk to the appellant’s psychiatric health.[35]
[34](2005) 222 CLR 44 (‘Koehler’).
[35]Ibid, 59 [41] (McHugh, Gummow, Hayne and Heydon JJ).
I do not consider this reasoning assists the plaintiff’s case. I am not satisfied that Berry Street was negligent in allowing the plaintiff to continue to work with OJ after 17 April 2007. On that date when the conversation between the plaintiff and Ms Bell took place there was no indication given by the plaintiff that he was having problems in coping with his work or that his psychiatric health was in danger. At its highest, on the evidence of Ms Bell, the plaintiff indicated ‘he wasn’t travelling too well’.[36] But as I have referred to above, there was no suggestion that in performing his work with OJ after the 13 April Incident and up until 17 April that he was not coping. The plaintiff did not report, or indicate to Ms Bell, that continuing to work with OJ was a cause of concern for him. In that sense there was no complaint that ‘suggested (either expressly or impliedly) that [his] attempts to perform the duties required of [him] were putting, or would put, [his] health at risk’.[37]
[36]Bell, Transcript at 172.26.
[37]Koehler (2005) 222 CLR 44, 59 [41] (McHugh, Gummow, Hayne and Heydon JJ).
In Hegarty v Queensland Ambulance Service (‘Hegarty’),[38] Keane JA (as he then was) referred to Koehler in the following terms:
In the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in the recent decision of the High Court in Koehler v Cerebos (Aust) Ltd it was said that a stable appreciation of the content of the employer’s duty to take reasonable care is essential; and that it is erroneous to proceed on the assumption that ‘the relevant duty of care [is] sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kind of steps required of an employer’. Further ‘litigious hindsight’ must not prevent or obscure recognition that there are good reasons, apart from the expense to the employer, why the law’s insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee’s mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard.[39]
[38][2007] QCA 366.
[39]Ibid, [47].
In considering the response of Ms Bell to the conversation with the plaintiff on 17 April I find the matters referred to above and below by Keane JA to be of assistance in assessing the exercise of reasonable care by an employer:[40]
[40]See Taylor v Haileybury [2013] VSC 58, [116] (Beach J) (‘Taylor’).
(a) ‘The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer’s duty in this respect, must be acknowledged as important considerations...Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiff’s problems’.[41]
[41]Hegarty v Queensland Ambulance Service [2007] QCA 366, [43] (‘Hegarty’).
In my opinion, the ‘issues of some complexity’ presented to Ms Bell in the conversation with the plaintiff on 17 April did not provide circumstances that necessarily required her to stand down the plaintiff from further work with OJ. In my opinion the discussion disclosed Ms Bell had great sympathy for the plaintiff’s position and demonstrated a cautious approach in referring the plaintiff to counselling; it is quite another matter to say that ‘reasonable care’ demanded a necessary intervention by Ms Bell requiring her to stand down the plaintiff from his employment or make some investigation of his psychiatric background. I do not accept the discussion on 17 April between the plaintiff and Ms Bell founded a requirement for such action. Further, Ms Bell was entitled to her opinion that ‘to cease [the plaintiff] from working…is not always the most productive thing to do’.[42]
[42]Bell, Transcript at 189.19 – 189.25. Mr Seelig was unable to direct me to any evidence that it was inappropriate for the plaintiff to continue to work after 17 April (See Seelig, Transcript at 289.15 – 289.20).
(b) ‘An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee’s performance of his or her duties at work’.[43]
[43]Hegarty [2007] QCA 366, [45] (Keane JA).
As of 17 April there was no suggestion that the 13 April Incident with OJ was adversely affecting the plaintiff’s work. As stated, the offer of counselling and support in my opinion was entirely appropriate. It may well be regarded as ‘an intrusion, an invasion of privacy’[44] to expect further enquiry, the opening up of psychiatric issues and issues of prior sexual abuse. As I have stated, I do not consider it reasonable to expect anything more of Ms Bell than to recommend counselling. I repeat the plaintiff was not manifesting signs of psychiatric problems and his work was not being interfered with.
(c) ‘It is necessary to resist the inclination retrospectively to find fault by devising chains of causation involving risks which were not reasonably regarded as significant before a particular event has occurred’.[45]
In my assessment of the circumstances that existed on 17 April, the attempt by the plaintiff to sheet home his psychiatric injury to his work between 17 April and 22 April is an endeavour now to fasten onto a risk which was not reasonably regarded as significant at the time. It could not be expected that Ms Bell would have appreciated the plaintiff’s complex psychiatric background or understood the risk of psychiatric injury. I agree with the comment of Callinan J in Koehler: ‘The fact however that a psychiatrist placed in the same position as an employer might have foreseen a risk of psychiatric injury, does not mean that a reasonable employer should be regarded as likely to form the same view’.[46] I do not consider that the plaintiff’s presentation on 17 April was such that Ms Bell should have anticipated the plaintiff was at risk of psychiatric injury. In reaching this conclusion I note that perception of the risk may in the end depend on ‘the vagaries and ambiguities of human expression’, ‘the dignity of employees’ and their right to be free from any form of harassment, and the complexity of issues surrounding any form of intervention.[47]
[44]Ibid, [46].
[45]Hegarty [2007] QCA 366, [49] (Keane JA).
[46]Ibid, [55].
[47]Taylor [2013] VSC 58, [116] (Beach J).
I turn now to the entries in the Run Sheet of 19 April 2007[48] and the DINA Form[49] relied upon in submissions by the plaintiff. The notes of the Run Sheet of 19 April 2007 refer to the 13 April Incident as ‘having significant impact on the emotional welfare of the staff member’.[50] Whilst the note clearly indicates an understanding of the emotional response of the plaintiff to the 13 April Incident it represents no more than the understanding of Ms Bell of the impact of that Incident on the plaintiff when she saw him on 17 April. Recording the understanding in the Run Sheet is appropriate; in fact on 19 April the plaintiff saw the counsellor recommended by Ms Bell. The recording of the emotional response of the plaintiff in the Run Sheet did not require a review of the course of action that had been proposed on 17 April by Ms Bell or derogate from the reasonableness of her conduct on that date. Ms Bell was entitled to consider the emotional impact against the plaintiff’s continuing ability to perform his work. As Mr Seelig stated in submissions there was no suggestion that the plaintiff did not cope well with the weekend shifts immediately after the 13 April Incident and prior to the 17 April meeting.[51]
[48]PX-1 (Run Sheet).
[49]PX-8 (DINA Form).
[50]PX-1 (Run Sheet) at 3.
[51]Address, Seelig, Transcript at 268.27.
The description in the DINA Form[52] of the impact of the 13 April Incident on the plaintiff does not advance the plaintiff’s case. The entry is consistent with the note in the Run Sheet of 19 April. For the same reasons I do not consider this entry demonstrates negligence on the part of Berry Street in failing to stand the plaintiff down from his employment.
[52]See Reasons at [34].
Finally I again refer to the entry in the DINA Form concerning ‘corrective action’ and that being ‘Greg has ceased working with [OJ]’.[53] As I have stated the response, once the plaintiff had indicated that there were problems working with OJ, of standing him down from his work at his request was entirely appropriate but I emphasise that was not the situation that presented to Ms Bell on 17 April 2007.
[53]See Reasons at [38].
I do not consider Berry Street was negligent in allowing the plaintiff to continue in his work after 17 April 2007.
Medical evidence and causation
I now turn to examine the medical reports tendered in this matter as they concern issues of causation.
Clinical psychologist Mr Mark Creamer examined the plaintiff at the request of his solicitors and reported on 22 February 2013.[54] Mr Creamer was of the opinion that the 13 April Incident was not entirely responsible for the plaintiff’s ‘breakdown’ – It was the ‘final precipitant’.[55] He stated the plaintiff ‘was too psychologically vulnerable to be working in residential care for disturbed adolescents’.[56]
[54]PX-11 (Report of Mr Mark Creamer dated 22 February 2013).
[55]PX-11 (Report of Mr Mark Creamer dated 22 February 2013) at 5.
[56]Ibid.
Dr John Gill, psychiatrist examined the plaintiff at the request of his solicitors and reported on 12 September 2012.[57] He noted that the plaintiff’s history was consistent with him ‘suffering a psychiatric injury in the course of his employment on 13 April 2007’.[58]
[57]PX-12 (Report of Dr John Gill dated 12 September 2012).
[58]Ibid at 8.
Dr Nagalingam Mahalingam, psychiatrist, treated the plaintiff in 2009.[59] He diagnosed post-traumatic stress disorder: ‘…he gets recurrent memories of his own childhood abuse, and the memories of the young man’s statement that [he] reminded him of the young man’s abuser’.[60]
[59]PX-13 (Report of Dr Nagalingam Mahalingam dated 15 April 2011).
[60]Ibid at 2.
Dr Stephen Hook was the plaintiff’s general practitioner. In a report dated 11 April 2008 he stated:
There is little doubt in my mind that the incident at work [13 April Incident] has initiated depression, anxiety and panic and exacerbated his underlying guilt and emotional problems relating to these events of childhood.[61]
[61]PX-16 (Report of Dr Stephen Hook dated 11 April 2008) at 1.
Ms Carole McGregor, psychologist, treated the plaintiff in Shepparton and prepared a report dated 27 April 2008.[62] Ms McGregor provided the following opinion as to the onset of the plaintiff’s injury:
The comment which occurred in his workplace triggered him experiencing the impact of some family violence and abuse which had occurred during his childhood. Although this work incident [13 April Incident] triggered the above conditions, it is likely that Mr Johnson would have experienced the impact of these experiences at some point regardless.[63]
[62]PX-17 (Report of Ms Carole McGregor dated 27 April 2008).
[63]Ibid at 3.
Dr Nitin Dharwadkar, psychiatrist, examined the plaintiff at the request of the WorkCover agent and reported on 14 June 2007.[64] He obtained the following history:
[64]DX-4 (Report of Dr Nitin Dharwadkar dated 14 June 2007).
My childhood haunted me all my life and still does. My older brother was a paedophile and perpetrated against my younger brother and maybe against me. My father was dead and my mother was very religious and I was a kid and I did not comprehend what my brother was doing. It was a different era and I did not tell anyone. My younger brother who was abused committed suicide at the age of late 30s.[65]
[65]DX-4 (Report of Dr Nitin Dharwadkar dated 14 June 2007) at 3.
And he set out further details:
My manager told me to have debriefing and had one counselling (sic). The Counsellor said I should have not just sat and did nothing (sic), I should have questioned the client more on why I reminded him of the molester. I started getting anxiety and panic attacks as the client unknowingly said something to me which cut deep in me — as he did not know of my history with being around a paedophile and he opened the scab.[66]
And later Dr Dharwadkar stated the plaintiff perceives the following to be the cause of his current presentation and the reason for ceasing work:
(a)Background history of being exposed to abuse perpetrated by his older brother against his younger brother and possibly being abused himself as well.
(b)The work incident in May 2007, when the [plaintiff] was accused by a client of looking like the man who had abused the client in the past.[67]
[66]Ibid at 4.
[67]Ibid at 7. It can be presumed that the reference contained in the Report referring to May 2007 as the date of the incident is in fact a reference to the 13 April Incident.
Mr Robert Wilks, psychologist, examined the plaintiff at the request of the WorkCover agent and reported on 26 October 2007.[68] Mr Wilks obtained a history that the comment of OJ from the 13 April Incident:
…played on his sense of guilt about his own family life, he became increasingly upset over the next few days and little solace was gained from a DHS counsellor telling him that he was being manipulated by the child.[69]
And later:
When fate (an ankle injury) delivered him into youth work he became an accident waiting to happen. This came to fruition in April 2007, when a no doubt manipulative youth picked up on Mr Johnson’s vulnerabilities and plunged him into anxiety and depression.[70]
[68]DX-5 (Report of Mr Robert Wilks dated 26 October 2007).
[69]Ibid at 3.
[70]Ibid at 4.
Dr Alan Jager, psychiatrist, first reported to the WorkCover agent on 14 May 2008.[71] Dr Jager obtained a history that after the comment by OJ to the plaintiff in the 13 April Incident, that the plaintiff reminded him of his own sexual abuser, the plaintiff’s mood deteriorated. The plaintiff started to let OJ do things he should not be allowed to get away. The plaintiff then ‘realised he was harming the child and he informed management and ceased work’.[72]
[71]DX-6 (Report of Dr Alan Jager dated 14 May 2008).
[72]Ibid at 3.
Dr Norman Rose, psychiatrist, provided a report to the WorkCover agent on 5 March 2009.[73] Dr Rose obtained a history from the plaintiff:
Since this incident [13 April Incident], Mr Johnson has been very depressed with frequent thoughts of suicide.[74]
Dr Rose in his opinion later stated:
This boy allegedly also told Mr Johnson that he had been sexually abused and he identified Mr Johnson with the sexual abuser. As a result of this, Mr Johnson developed severe feelings of depression and panic. He has been seeing a psychiatrist and a psychologist.[75]
[73]DX-7 (Report of Dr Norman Rose dated 5 March 2009).
[74]Ibid at 3.
[75]Ibid at 5.
Dr Hillol Das, psychiatrist, provided a report to the WorkCover agent after assessment of the plaintiff on 4 February 2011.[76] Again in the history provided to Dr Das the plaintiff attributed his problems to the comment of OJ that he looked like OJ’s abuser.[77]
[76]DX-8 (Report of Dr Hillol Das dated 11 February 2011).
[77]Ibid at 3.
Dr Natalie Krapivensky, psychiatrist, provided a report to the WorkCover agent after assessment of the plaintiff on 12 November 2012.[78] In the history provided to Dr Krapivensky the plaintiff attributed his problems to the 13 April Incident. Further, Dr Krapivensky provided the opinion that ‘[t]here is no doubt, however, that the worker had significant mental health problems all his life long before his employment with his current employer’.[79]
[78]DX-9 (Report of Dr Natalie Krapivensky dated 12 November 2012).
[79]DX-9 (Report of Dr Natalie Krapivensky dated 12 November 2012) at 4.
The tendered medical reports strongly indicate that the precipitating event that brought on the plaintiff’s psychiatric symptoms was the 13April Incident. Some of the medical practitioners referred to pre‑existing depression and that the plaintiff was vulnerable to depression. But the overwhelming weight of the medical evidence is that the 13 April Incident triggered the breakdown in the plaintiff’s medical condition. It is not now claimed that Berry Street is negligent or at fault in any way for the 13 April Incident.
The plaintiff’s claim that his work with OJ post the staff meeting of 17 April is a cause of his current injury cannot be sustained. Whilst he may have mentally declined over this period of time, it is apparent on the medical evidence that that decline, his injury, was caused as a consequence of the 13 April Incident and a predisposition to psychiatric injury. No support for the proposition that work with OJ between 17 April and 22 April is a cause of the plaintiff’s continuing psychiatric injury, his current incapacity, can be found in the medical evidence.
The plaintiff has not established Berry Street was negligent in allowing the plaintiff to work after 17 April. In any event the plaintiff has not established that work between 17 April 2007 and 22 April 2007 was a cause of his psychiatric injury.
The incident of 31 August 2007
The plaintiff did not return to work until August 2007. He worked on 6 August[80] and 27 August.[81] The plaintiff’s return to work program involved him undertaking basic administrative tasks, such that one-on-one contact with clients in care was minimised. It was agreed between Berry Street and the plaintiff that the only indirect contact the plaintiff would have with clients would be when working in the office on days other than Mondays and that he would not be assigned work with OJ in the future.[82] The Offer of Suitable Employment set out that the plaintiff could complete his work in a private office, avoiding contact with clients, and could elect to have another member of staff walk him to and from his car.[83] The plaintiff was content with this course, as he explained:
I was doing two hours part time on the presumption of getting back to work at - I knew my life working with OJ was over, I knew I couldn't go back to work with OJ, but there was other units and other clients. I felt if I got some sort of confidence back, I could go and work at the other units, and that was my goal. Small steps I was taking and the two hours on a Monday was the first small step.[84]
[80]Waite, Transcript at 216.26.
[81]Waite, Transcript at 218.2.
[82]PX-2 (Offer of Suitable Employment dated 10 August 2007). The plaintiff signed this document on 13 August 2007.
[83]Ibid.
[84]Johnson, Transcript at 160.1 – 160.8.
On Friday 31 August 2007, the plaintiff was rostered on for administrative duties at the Kialla Premises and upon attending work was confronted by OJ in the car park. OJ approached the plaintiff, grabbed him, did not release his grip, and began to question him as to what he had done wrong given that the plaintiff had ceased to care for him.[85] The plaintiff stated that Mr Cameron Reid, a co-carer, approached the scene allowing the plaintiff to escape to the office, apologising that he had neglected to pass on a message from Ms Bell not to attend as it was a free pizza day, meaning that clients were in attendance.[86] As a result of this interaction, the plaintiff said he was left feeling severely traumatised (‘the 31 August Incident’).
[85]Johnson, Transcript at 72.7 – 72.11.
[86]Johnson, Transcript at 72.14 – 72.23.
By way of amendment to the Statement of Claim on 16 April 2013 and 6 December 2013, the plaintiff sought to include claims for the period up to and including the 31 August Incident. The plaintiff claims the 31 August Incident caused him to suffer severe psychiatric injury[87] and as I understand the pleading exacerbated the psychiatric injury sustained by the plaintiff as a consequence of the 13 April Incident. The Serious Injury Certificate of the Victorian WorkCover Authority was issued in respect of the period up to and including April 2007.
[87]Amended Statement of Claim at [15].
The defendant sought to strike out those paragraphs in the Amended Statement of Claim contending the intervening period to the 31 August Incident was outside the period covered by the Serious Injury Certificate. On 17 November 2014, I delivered a ruling dismissing the defendant’s strike out application, deeming the alleged exacerbation caused in the intervening period up to and including the 31 August Incident was covered by the Serious Injury Certificate.
Ms Bell stated in evidence that she had no recollection of the 31 August Incident, that in fact she was overseas at the time, between 19 August and mid-September, and that she could not have given any instruction to Mr Reid to tell the plaintiff not to come in on 31 August.[88] She said upon her return no mention was made to her of any incident involving the plaintiff on 31 August.[89] The defendant submitted that the plaintiff’s evidence alleging a message from Ms Bell is unreliable on two grounds: firstly, that Ms Bell was overseas at the time and secondly, that the Further and Better Particulars do not particularise this evidence.[90]
[88]Bell, Transcript at 179.21 – 180.10.
[89]Bell, Transcript at 180.13 – 180.14.
[90]Address, Middleton, Transcript at 295.12 – 295.24. See plaintiff’s Answers to the Defendant’s Request for Further and Better Particulars of the Further Amended Statement of Claim at [8].
The Offer of Suitable Employment dated 10 August 2007, which the plaintiff agreed to and signed on 13 August 2007, foreshadowed that there would be indirect client contact.[91] The defendant argues, that in these circumstances, it must be expected or anticipated that there may be some client contact, albeit brief.
[91]PX-2 (Offer of Suitable Employment dated 10 August 2007).
Ms Bell explained that the term ‘indirect client contact’ was viewed in the following context:
…our Kialla office also had an alternative education program. So there were clients going to be there outside of that Monday. Greg was in an office. There was a reception area where he would have cause to walk through and the fact that a young person could have easily entered that office to see a staff member to catch up with their ICMS worker or to see myself or someone at reception was highly likely. So he would have had some indirect in terms of them being on the premises or entering the building.[92]
[92]Bell, Transcript at 194.30 – 195.8.
The plaintiff stated that on 31 August, as there were very few cars in the car park there was no indication that clients were attending the Kialla Premises. He stated that had the car park been full, he would have turned around and gone home.[93] Nevertheless the fact that clients were in attendance on a Friday was a component of the plaintiff’s return to work conditions: the plaintiff and his medical practitioner had approved the terms of the Offer of Suitable Employment as being suitable.
[93]Johnson, Transcript at 159.19 – 159.21.
Mr Seelig submitted that ‘but for the pizza incident, [the 31 August Incident] there would be no reason why [the plaintiff] wouldn’t still be working today’.[94] Mr Seelig contended that given the circumstances, it was entirely foreseeable that rostering the plaintiff on to work on 31 August was a ‘recipe for disaster and entirely foreseeable that any interaction between [the plaintiff and OJ] was going to be significantly detrimental to the plaintiff’.[95] The plaintiff said in evidence in chief he had not worked since 31 August 2007.
[94]Address, Seelig, Transcript at 288.21 – 288.23.
[95]Address, Seelig, Transcript at 293.27 – 293.29.
In my opinion the plaintiff is overstating the significance of the 31 August Incident. His evidence that he did not work after the 31 August Incident is contradicted by evidence of Ms Jillian M. Waite, the Senior Human Resources Consultant at Berry Street, who produced timesheets demonstrating that following the 31 August Incident the plaintiff worked two hours on 3 September, one hour of 7 September, two hours on 10 September, 14 September, 17 September, 21 September, 24 September, 28 September, 1 October, 15 October, 19 October and 22 October.[96] The timesheets indicate that 22 October 2007 was in fact the last date he worked.[97] It is apparent the 31 August Incident did not cause him to stop work.
[96]Waite, Transcript at 217.18 – 217.22; 219.28 – 219.30; 220.5 – 220.8; 220.13 – 220.18 and 220.22 – 220.23.
[97]Waite, Transcript at 220.29 – 220.31.
The histories provided by the plaintiff both to treating medical practitioners and medico-legal practitioners do not highlight the 31 August Incident. The general practitioner, Dr Hook, stated in his report of 11 April 2008:
He continued to work at Berry Street but was unable to continue client contact because of symptom exacerbation. Eventually he had to leave altogether because even being in the building brought on anxiety and panic episodes.[98]
The 31 August Incident is not referred to by Dr Hook.
[98]PX-16 (Report of Dr Hook dated 11 August 2008) at 1.
Ms McGregor, in her report of 27 April 2008 only refers to OJ’s comment in the 13 April Incident as a trigger for the plaintiff’s illness.[99] There is no mention in her report of the 31 August Incident.
[99]PX-17 (Report of Ms McGregor dated 27 April 2008) at 3.
When examined by Mr Wilks on 26 October 2007, four days after the plaintiff last worked at Berry Street, the following history was obtained from the plaintiff:
Mr Johnson also said that he had seen a rehabilitation advisor, with their input being to organise a limited, four hour per week routine on office duties with Berry Street, with the ultimate aim of returning to residential care work. However he said that he had remained very scared of client contact and recounted having a major panic attack when accidently briefly encountering his former charge.[100]
[100]DX-5 (Report of Mr Wilks dated 26 October 2007) at 3.
Dr Jager, in his report of 14 May 2008,[101] does not refer to the 31 August Incident.
[101]DX-6 (Report of Dr Jager dated 14 May 2008).
Dr Gill in his report of 12 September 2012 obtained the following history from the plaintiff:
Mr Johnson said that about two months after the incident [13 April Incident] at work he tried a return to work program undertaking clerical duties without client contact. Unfortunately one day there was a client at the workplace who grabbed him, causing him to feel much distress and then he stopped work.[102]
[102]PX-12 (Report of Dr Gill dated 12 September 2012) at 3.
Dr Mahalingam conducted therapeutic interviews with the plaintiff after 5 November 2009. In his report of 15 April 2011 there is no reference to the 31 August Incident.[103]
[103]PX-13 (Report of Dr Mahalingam dated 15 April 2011).
Dr Rose, in his report of 5 March 2009,[104] Dr Das, in his report of 11 February 2011,[105] Dr Krapivensky, in her report of 12 November 2012,[106] and Mr Creamer, in his report of 22 February 2013,[107] make no reference to the 31 August Incident.
[104]DX-7 (Report of Dr Rose dated 5 March 2009).
[105]DX-8 (Report of Dr Das dated 11 February 2011).
[106]DX-9 (Report of Dr Krapivensky dated 12 November 2012).
[107]PX-11 (Report of Mr Creamer dated 22 February 2013).
I am satisfied that the plaintiff was involved in an incident with OJ on 31 August and that the incident occurred in the manner described by the plaintiff. I accept the plaintiff’s evidence that he found the 31 August Incident distressing. The description of psychologist, Mr Wilks, in his report of 26 October 2007 provides a cogent summary: ‘However he said he had remained very scared of client contact and recounted having a major panic attack when accidentally briefly encountering his former charge’.[108]
[108]DX-5 (Report of Mr Wilks dated 26 October 2007).
I do not accept the plaintiff’s evidence that Mr Reid stated to him on 31 August 2007 that he [Reid] had neglected to pass on a message from Ms Bell to the plaintiff that he not attend Kialla on that day because it was a free pizza day. Ms Bell was overseas between 19 August and mid-September 2007. On her return, she was not informed of the 31 August Incident. That Ms Bell was not informed of the 31 August Incident upon her return to work is consistent with this Incident not being significant in terms of impacting on the plaintiff’s then extant injury or his return to work. Contrary to the plaintiff’s evidence, he continued his part-time return to work after the 31 August Incident until 22 October. I do not consider the 31 August Incident is a cause of the plaintiff’s now psychiatric injury. As I have stated above, the 31 August Incident is best summarised as causing a panic attack, but there is no evidence to support a finding it is a cause of the plaintiff’s long-term injury.
Finally in considering the circumstances of the 31 August Incident, I do not consider Berry Street was negligent. As I have indicated, there was recognition between the plaintiff and Berry Street that some minor client contact was possible in the plaintiff’s return to work program. The chance meeting between OJ and the plaintiff in the car park can be seen as a random occurrence, unfortunate, but the circumstances are not such as to attach to Berry Street a finding that it has breached its duty of care to the plaintiff.
Conclusion
During the course of closing submissions, Mr Seelig submitted that Berry Street, over the course of the trial, had in effect ‘ambushed’ the plaintiff’s case by admitting events and actions it had previously denied. By way of example, Mr Seelig referred me to paragraph 8 of the Further Amended Statement of Claim:
8.Further and/or in the alternative, on or about 17 April 2007 the plaintiff again made complaint to a supervisor/manager in respect of the injury and psychological distress occasioned to him by his exposure to the aforesaid youth as pleaded in paragraph 4 herein.
PARTICULARS
The complaint was made to Ms Margaret Bell.
In the Amended Defence to the Further Amended Statement of Claim, Berry Street pleaded as follows:
8.It denies the allegations contained in paragraph 8.
Mr Seelig directed me to the Further and Better Particulars of Berry Street to the Further Amended Statement of Claim as follows:
There are further and better particulars again in relation to paragraph 8 that says the complaint was made verbally to his unit manager, Ms Margaret Bell, at a meeting. The plaintiff told Ms Bell about his own sexual abuse and they discussed what occurred with the youth on the night of 13 and 14 April. Ms Bell said the plaintiff should see a counsellor.[109]
[109]Address, Seelig, Transcript at 257.8 - 257.15.
I asked Mr Seelig how he was ‘ambushed’. He replied: ‘[t]he defence says it didn’t happen’.[110]
[110]Address, Seelig, Transcript at 257.17.
In the light of the Further and Better Particulars of Berry Street, I do not understand the ‘ambush’ point. The denial in the Defence Mr Middleton submitted was proper – in the sense the plaintiff pleads at paragraph 8 in the Further Amended Statement of Claim that he made complaint about ‘the injury and psychological distress’[111] and Berry Street denies complaint of ‘injury or psychological distress.’ Perhaps the defence could have been put in better detail but as Mr Middleton contended, in my view correctly, the Berry Street position is fully explained in its Further and Better Particulars.
[111]The pleading is similar to paragraph 6 of the Further Amended Statement of Claim.
I do not consider the plaintiff’s case has been subject to any form of unfairness as a consequence of the pleadings. I consider that the substance of the Berry Street case was set out in pleadings and particulars. The plaintiff has the burden of proof, to demonstrate negligence, that the alleged conduct of the defendant breached its duty of care to the plaintiff, that any such negligence was a cause of the plaintiff’s injury. The plaintiff must prove his case. As set out above, I do not consider, on the evidence in this case, that the plaintiff has discharged that burden both in relation to negligence and causation.
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