Kozarov v State of Victoria

[2021] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M36 of 2021

B e t w e e n -
ZAGI KOZAROV
Appellant
and
STATE OF VICTORIA
Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON THURSDAY, 2 DECEMBER 2021, AT 10.00 AM

KIEFEL CJ: In accordance with the remote hearings protocol, I will announce the appearances of counsel for the parties.

MR J.T. RUSH, QC appears with MR J.B. RICHARDS, QC, MR A.M. DINELLI and MR G.D. TAYLOR for the appellant. (instructed by Bowman & Knox)

MR B.W. WALKER, SC appears with MR G.A. WORTH and MS N.A. WOOTTON for the respondent. (instructed by Russell Kennedy Lawyers)

KIEFEL CJ: Yes, Mr Rush.

MR RUSH: May it please the Court. The appellant in this case was a dedicated, conscientious and ambitious solicitor with the Office of Public Prosecutions, working in the Serious Sexual Offences Unit. The Court of Appeal accepted, as the trial judge had found, that the OPP, as the appellant’s employer, ought to have offered her occupational screening in August 2011, and that such screening would have disclosed that she suffered from PTSD. Despite those findings, the Court of Appeal impermissibly narrowed the appellant’s case, holding that the appellant would not have co‑operated and accepted rotation away from the traumatic work.

There are two errors which we will elucidate in the course of these submissions – I will briefly refer to each. The first, your Honours, is that the Court of Appeal erred in finding rotation required the appellant’s co‑operation. This finding was contrary to the scope of the duty as found by the trial judge.

Following an offer of work‑related screening, the options of the employer to reduce exposure to trauma involved rotation, involved time out or involved changing case allocation. The appellant was not required to consent to those options. The options form part of the counterfactual that ought to have existed to be invoked here by the employer to prevent or reduce injury as found by the trial judge.

The trial judge found no reason why the respondent could not rotate the appellant and the respondent conceded that there was no obstacle to being rotated. It was never said by the respondent that there was a reason why the appellant could not be rotated to another area of the OPP and it is simply not the case, your Honours, as the Court of Appeal said, that what is described in 102(c) of the Court of Appeal judgment as the third step – rotation - required co‑operation of the appellant in order to secure a safe system of work has long - has been held by this Court, including in McLean v Tedman. The respondent came under a duty to ensure that the appellant’s exposure to graphic and traumatic material was reduced.

The distinctions between what is called the options and the offer is important and is seen at the trial judge’s reasons at 741, and could I briefly take the Court to paragraph 741 of the trial judgment. Your Honours will see that there her Honour referred to it being:

vital that there was a system in place for properly supervising staff well‑being by conducting appropriate welfare inquiries in response red flags for intervention, accompanied by the offer of work related occupational screening. This measure was a necessary springboard from which to invoke management supervision of work allocation or rotation of role to prevent further exposure to trauma ‑

That is reiterated again in paragraph 742. Whilst in our learned friend’s submissions there is reference to an offer of rotation, that is in fact not the case. The offer related to work‑related occupational screening. The options to be invoked as part of a proper management supervision referred to the management by way of rotation, time‑out or by the allocation of work.

Secondly, your Honours, and in any event, as rotation was an option to reduce exposure to trauma following an offer of work‑related occupational screening, the Court of Appeal erred in finding that the appellant would not have co‑operated. The Court of Appeal’s conclusion on the appellant not co‑operating we contend defies commonsense as no person, acting reasonably, in the knowledge of having suffered work‑related injury, would reject appropriate health advice and continue to be damaged, escalating the psychiatric condition.

So, we say, your Honours, that the effect of paragraph 106 of the Court of Appeal judgment, is that it offends the duty of care as found by the trial judge and, indeed, by the Court of Appeal itself.

KIEFEL CJ: Mr Rush, could I interrupt you for a moment? Just to be clear, when do you say that the duty to provide a safe system of work and to provide the necessary screening arose? Is it at the end of August 2011?

MR RUSH: Our case is that it was by the end of August 2011 that the duty of care was engaged, your Honour.

KIEFEL CJ: Not some earlier time, and not at the beginning of the – I suppose what you are saying is consistent with the primary judge – trial judge’s findings, it is the end of August 2011.

MR RUSH: We do say that, your Honour, although there is good evidence that the appellant suffered from PTSD in April of 2011 with signs and stigmata of that being made apparent. It is the sentinel event, as referred to by her Honour, which is the email of 29 August, that ‑ ‑ ‑

KIEFEL CJ: I raise this because, on one view, her Honour in her earlier description of her earlier discussion of what a safe system involves appears to have comprehended that this should have been provided at all times, really, from the time that the appellant was employed, but her Honour then reduces the matter to the timing of August 2011, is that a correct interpretation of the findings?

MR RUSH: It is, your Honour, although I think it is fair to say that, from the judgment, her Honour was always of the view that there was a need for a safe system of work in this unit.

KIEFEL CJ: Yes, but critically in relation to the appellant, that duty arose at the end of August 2011.

MR RUSH: Correct, your Honour.

KIEFEL CJ: That is when her Honour found it became apparent to the respondent.

MR RUSH: It did, that was the position that was put at trial and found by the trial judge, and indeed, by the Court of Appeal.

KIEFEL CJ: Yes, thank you.

KEANE J: Mr Rush, just while we are on that point, looking at paragraph 702 to 704 at page 230 of the core appeal book, her Honour seems to have made findings as to what was required in terms of:

welfare checks and the offer of referral for . . . occupational screening . . . and, a flexible approach to work allocation . . . in response to screening, including the option of temporary or permanent rotation –

That is in paragraph 702, and her Honour seems to go on to find, at 703, that those obligations, which are obligations about the safe system of work, were not observed. Now, in your response to the Chief Justice’s questions, does one take it that it is accepted on all sides that her Honour did not pursue those findings, or abandoned them? I ask because, if those findings were findings of breach, and then the findings of causation follow, questions about inquiry and intrusion into the plaintiff’s privacy would seem not to arise. It is simply a question of a system of work that was recognised to be required and not enforced.

MR RUSH: Your Honour, we would agree that on any view the issues around privacy of the individual do not arise in the circumstances of this case. In answer to your Honour’s question, it appears to us that whilst her Honour has made those findings, her Honour has centred, in relation to the particular email correspondence of 29 August as being the sentinel event that put on notice.

So, specifically in relation to your Honour’s question, in the sense that here we have – and I will briefly take the Court to some of the material – an employment that carried with it the inherent risk of psychiatric injury, that the sort of measures that are referred to in those paragraphs we would contend, and the trial judge indeed found, were part and parcel of what should be in operation, but as far as the breach is concerned her Honour concentrated on the end of August.

KEANE J: Thanks, Mr Rush.

MR RUSH: So, your Honours, we contend that in paragraph 6 of the Court of Appeal’s decision it offended the duty of care, as I said, as found by the trial judge and, indeed, by the Court of Appeal and that, despite finding that there was a duty to exercise reasonable care to protect the appellant from foreseeable psychiatric injury. In concluding, as the Court of Appeal did in that manner, we contend it mistook its appellate role, erred in finding that the appellant needed to co‑operate for rotation to occur or, alternatively, failed to undertake a proper review of all the evidence and find, as the trial judge did, that the appellant was willing to co‑operate with rotation in August of 2011.

So it is, in summary, for these reasons, your Honours, that we say that this appeal should be allowed. As we indicated in our brief outline provided this morning we propose, your Honours, to deal with our grounds of appeal and Mr Dinelli in reply, if that is convenient to the Court, to deal with the notice of contention.

Can I just very, very briefly take the Court to some of the facts that are set out in the trial judge’s judgment, starting at paragraph 4 of the trial judgment.

EDELMAN J: Mr Rush, just before you do, I understand that the way that you have divided your case up makes a lot of sense in terms of presentation of the argument, but as a matter of principle the issues in the notice of contention really come first, do they not?

MR RUSH: As a matter of principle, your Honour, I would agree with that, although I think some of the material that I will go to will deal with the matters, I suspect, in relation to our grounds of appeal. At paragraph 4, your Honours, of the trial judgment her Honour referred to the appellant as “a solicitor and former employee” of the Office of Public Prosecutions. Just so it is clear, the appellant was an employee of the Office of Public Prosecutions, and that finding is consistent with the defence of the respondent where there was the concession that the appellant was employed by the OPP.

At paragraph 54, your Honours, there is reference to the work that was carried out in the OPP. Your Honours will see that there were:

25 solicitors –

in the third dot point:

ranging from senior to junior practitioners –

and noted in the last paragraph that:

The Unit prosecutes all serious indictable sex offences heard in the Melbourne Magistrates’, County and Supreme Courts whether the victim is an adult or child.
At paragraph 61 and following, her Honour set out the nature of the work that as a solicitor the appellant undertook in the SSOU, referring at 61 to recordings depicting:

child being distressed or confused –

Having to watch, at 62:

explicit child pornography –

Noting at paragraph 63 that when she started her own children were age three and five, and that:

The content of the work was very confronting to her.

At 64, that she met with:

child complainants, usually having seen their video‑recorded evidence ‑

Noted the characteristics of the children being “fearful”, having to prepare them for evidence, “distressed” and having to:

‘try and comfort them and make them feel safe’.
At paragraph 65, noting the persons and the alleged offenders and the wide range, including family and the like, of the victims – referring to the disturbing material at 67 – and at paragraph 70:

The plaintiff said that she was ‘in court’ nearly every day and would take work home most days. She frequently had to prepare tendency and coincidence notices –

at night. Save, your Honours, for the inference that has been referred to, we understand no factual issue arises on this appeal.

Before going to the arguments, can I very briefly take your Honours to what we would contend are some key documents. At paragraph 94 of the judgment, the trial judge set out the various matters from the “Vicarious Trauma Policy”. This was a policy that had been extant in the Serious Sexual Offences Unit, prior to the appellant taking employment within the Unit. Her Honour referred – and we refer the Court to the first paragraph there set out that:

Vicarious trauma –

this is the knowledge of the employer:

is a recognised, cumulative effect of working with survivors of trauma where some effects parallel those experienced by the primary victim/survivor ‑

In the next paragraph, highlighted by her Honour, that:

Vicarious Trauma . . . is an unavoidable consequence of undertaking work with survivors of trauma … in particular, survivors or sexual assault –

Her Honour notes that:

VT is a process rather than an event and it can have detrimental, cumulative and prolonged effects on the staff member –

In the next paragraph, her Honour noted, from the trauma policy:

The response to working with trauma survivors is often referred to as ‘burn‑out’ which is a state of physical, emotional and mental exhaustion caused by long‑term involvement in emotionally demanding situations –

Over the page, her Honour refers – out of the policy – to the nature of the material that is referred to and I will not repeat that. At paragraph 95, again, reference to the impacts ranging from:

·Intrusive reactions (dreams/nightmares . . .

·Shift in frame of reference–changes in the way the staff member views their world . . .

·Avoidant reactions . . .

·Hyper arousal reactions (hyper‑vigilance and difficulty concentrating).

·Changes in a person’s belief in themselves and others.

·Impact on a person’s relationships.

·Taking work home (unable to switch off).

·Negative comments ‑

As her Honour notes, the policy included 97 strategies for staff to use in an attempt to deal with vicarious trauma:

including avoiding long hours at work, having ‘manageable case loads’ and a ‘[b]alanced workload –

At paragraph 99, her Honour sets out references to the policy. Of particular importance, we say:

If a Manager suspects a staff member is experiencing VT they should:
1.Approach the staff member in a confidential and appropriate manner e.g. during supervision or via an informal meeting.

2.Acknowledge affects [sic] of VT and issues of concern with staff member.

3.Discuss possible strategies to assist staff member to deal with concerns.

4. Establish appropriate response to the situation.

Your Honour will note in the paragraph above there is reference to:

Fixed, pre‑determined rotations ‑

Something that the trial judge rejected, but also:

Negotiated rotations ‑

And, then, going back to 99:

·Counselling . . .

·Reallocation of files by the Directorate Manager . . .

·Specific ‘time‑out’ ‑

From notes at 9.1 of the VT policy, under the heading “Accountability”, the:

Directorate Manages are responsible for the implementation and compliance with the requirements of this policy –

So that we contend, your Honours, is an important document and one that – and I do not take the Court to it but ask the Court to note that at 149 of the trial judgment her Honour found that the knowledge of the VT policy of both Mr Brown and Ms Robinson – the principal solicitors and managers in the office – “was desultory”. Indeed, at 220 of the judgment, that Mr Brown, who was the appellant’s manager “was never made aware” of the Vicarious Trauma policy. For further noting at 150 of the trial judge’s judgment that Mr Brown never turned his mind to:

strategies to manage vicarious trauma –

I will quickly deal, your Honours, with what is being referred to as the Penhall memorandum, which is at 141 of her Honour’s judgment. Ms Penhall was a principal solicitor with the SSOU. In May of 2009, one month before the appellant commenced her employment, she wrote this memorandum, of which Mr Brown was not aware, setting out the nature of the problems after she had engaged with people who worked in the SSOU, and set out the symptoms that were then extant, which is at the bottom of page 49 at paragraph 141.

I do not read them to the Court, but it would be noted that many of them are consistent with what is set out in the vicarious trauma policy. So those symptoms and the workforce being impacted by those symptoms had been known of in the unit for a considerable period of time. Paragraph 144, of particular note, your Honours, the second dot point:

In recognition of the labour (and emotional) intensity of our work, some sort of ‘Flex time’ arrangement structured ‘Time out’.
A training workshop –

et cetera. The trial judge, your Honours, at 153 of the judgment, referred to what is called the April staff memorandum. As your Honours will see, I think it said 151, it is at 153, and this was a memorandum that was drafted after a meeting of solicitors occurred within the SSOU in March of 2011, and this memorandum was provided, placed on Mr Brown’s desk on 18 April 2011, as her Honour sets out at 153. The appellant was a signatory to the letter. Her Honour sets out details of the letter, and also at 154 and following refers to oral evidence that was given in relation to it. At 156 she notes that:

The memo listed the exact same stress‑related symptoms as those listed in –

the Penhall letter:

but added one further symptom: ‘Extreme Anger and lack of job satisfaction’.

At 157 she referred to staff expressing:

disappointment that the Executive and management allowed the situation to get to this point and hope that some of the concerns and suggestions . . . will be considered and addressed –

And “What can we do?”, referred to at 158:

there has been a gross underestimation of the number of staff required to run a specialist unit the staff have tried to identify positive ways of improving working conditions and discourage ‘burn out’ amongst solicitors –

and there is a fear expressed at 160 that if “something ‘goes wrong’” it will take that before there is proper acknowledgment of the nature of the work that is being undertaken.

There is reference at 161 to the overtime that was being undertaken – unpaid overtime that was being undertaken by staff members. As I indicated, the appellant was a signatory to this correspondence. That is dealt with, your Honours, at 238. Her Honour set out – and I do not take the Court to it but ask to note that her Honour set out the symptoms that were impacting on the appellant that were noted in this staff memorandum and she suffered from most of them.

The trial judge found at paragraph 620 that the April memo was an unusual feature of the foreseeability analysis and her Honour midway down that paragraph noted that it was:

an unusual feature of the foreseeability analysis, and provides a distinct point of contrast with earlier authorities. It is evidence that the system previously in place at the SSOU was defective in notifying management that staff were experiencing adverse health effects. Whilst it represents a collective request for management to respond to employee concerns, the evidence that the plaintiff and other staff members put their signature to it means that it cannot be discounted as relevant notification regarding those individuals.

Your Honours, one further document – and we contend it is an important document – is referred to by her Honour at paragraph 169 of the trial judgment. It is termed by her Honour the “‘Business Case’ to the OPP”. It is a letter, or a document prepared by Mr Brown, the manager, of 13 pages to go to the OPP executive following the staff memorandum. We contend that in addition to it being a business case, it describes in effect the knowledge held by management of the seriousness of the issues and the nature of the impairments that were impacting on solicitors.

So, her Honour noticed that, at 170, “current staff levels . . . are not sufficient to cope”. Her Honour referred to in the third paragraph a high staff turnover over the period, particularly at Grade 5 and 6 levels. In the next paragraph highlighted by her Honour:
The solicitors have had to bear the brunt of the increased demands and this is having a negative impact on health and well‑being, morale and the quality of work.

At 172 Mr Brown referred to:

File numbers alone do not reflect the intensive nature of the work -

and again, highlighted by her Honour:

In order to keep up with their other work they are forced to work beyond normal office hours, often staying back to 9pm and coming in on weekends. The work itself is intensive, relentless and emotionally draining.

At 175 there was reference to “file load numbers” as being:

too high. It is recommended that full‑time solicitors should carry an average file load maximum of 20 files . . . the solicitors in Melbourne SSOU are carrying a total of around 100 files too many.

Importantly, we say, your Honours, the next paragraph where her Honour sets out from the so‑called business case, Mr Brown notes:

Maintaining the current staff levels will have serious OH&S implications for SSOU and the OPP. There will be an increase in sick leave and departures and further loss of morale within the Unit.

Again, in the next paragraph he refers to:

The staff in SSOU are reporting burn‑out and staff turnover is increasing.

Then back to the highlighted passage:

The Unit has been operating at staff levels well below the minimum for the past six months due to departures. This has resulted in pressure building up to breaking point. Staff recently conducted a meeting from which a memorandum was produced outlining the effect this is having on their work and health. The current situation is untenable and there are serious OH&S risks looming. These issues have previously been brought to the attention of the Executive on a number of occasions.

So there your Honours is the…..the manager, the employer on notice of the seriousness of the conditions for the appellant and others working in the Serious Sexual Offences Unit at this time.

Finally, as far as documents are concerned, can I refer the Court to the appellant’s email which is probably more conveniently dealt with, your Honours, at paragraphs 46 to 48 of the Court of Appeal judgment. I say that not because the trial judge did not appropriately refer to it, but the full version is set out, and a follow‑up…..

The Court of Appeal summarised at paragraph 45, your Honours, the return to work on 29 August of the appellant after two weeks of sick leave and a dispute with her manager – the author of the so‑called business case – the dispute arising out of a perception of the manager that she had come in late and it “culminated” in some exchange and then what the trial judge found and the Court of Appeal referred to as a:

long, detailed and emotionally charged email to Mr Brown -

In that email – and again the Court likely has had regard to this – there is a detailing of the events leading up to that disputation, that she had:

a doctors appointment at 4:30 pm and asked permission to leave at 4 pm.

She says that she was in at 8:30, and there was a disputation as to the time that she arrived because the computer was apparently not turned on. She notes in the second paragraph that:

Today was my first day back at work after two weeks off on sick leave -

There is no inquiry at all in the evidence as to Mr Brown seeking an explanation how she used what occurred on sick leave, what actually occurred. The Court will become familiar that that occurred while she was instructing in the middle of a trial, the Lim trial, a case that she had sought not to take on. Be that as it may, for the purposes of this memorandum, that is the background. She notes that she had spoken to Mr Brown:

several times and even continued working on my matters from home . . . I have come back today ready to do my normal duties despite my doctor recommending I take further time to recover. I approached you in your office and asked to speak to you as my manager. I asked you if I had done anything wrong or failed you and the unit in any way . . . You responded saying Zag ‘you are just not coping with your work, I can’t allocate any files to you’. I responded saying that I wanted you to point out where you feel I was not coping? That we discussed any new files could be allocated to start after November due to my work load calendar showing [it is] impossible for me to take on any more files at present. You could not point to anything in my work but responded that I was the only mother of two you knew that worked full time and now was a single mother and that I should not be full time in a busy unit like ssou.

There is further discussion, and at about point 4 on the page:

I always work hard, I have never let my personal issues interfere with my professional life. I am grateful for all your understanding and assistance during my family law matters and during times my children were sick and I would come into work and continue working as I had no care for them with them sleeping in my office. I thought I was doing the right thing by the unit, I thought I was being dedicated and conscientious of my work.

Then, towards point 080 on the page, at the bottom:

I have completed my work other staff are not covering any preparation of files it’s instructing as matters have been listed back to back. I work hard, I am dedicated and committed to ssou. You have stripped my pride from me today I feel discriminated against as a single mother working full time and you have labelled me as you clearly stated that you are not the only person with this view. You have made me feel I have no hope for permanent 5 that I submitted [an] application for yesterday. I feel surprised to hear this all today as my manager I gave you several opportunities to discuss this with me if you had an issue. You have only given me positive feedback about my work.
I then asked if you felt I should no longer be in the unit and you stated it may need to be addressed with Stuart Ward -

the executive. She refers in the next paragraph to having:

confided in –

Mr Brown:

as my manager you are aware are not fresh. My marital issues have been ongoing for years yet no one at work till recently knew. That shows my personal life has never interfered with the pride I take in my work.

The email chain is further referred to at paragraph 48 after a response from Mr Brown where, at 47, he said there were inaccuracies in the appellant’s email, that it:

is not a fair record of our conversation -

and that he did not say:

others in the team have been talking about you –

and he was disappointed that she had chosen to leave. I think, your Honours, at 48 the context that is relied upon here by the respondent is at particularly the third paragraph of the 2.36 pm email:

I want to make it clear that I am passionate about continuing my work in the sexual offences unit and I don’t want to leave the unit and don’t believe that I should be made to feel like I am not coping when the work load calendar clearly reflects my deadlines and workload. I have kept up to date with my work and always remained committed and dedicated to ssou.

So, your Honours, that is variously described by her Honour the trial judge. I just ask your Honours to note this, at paragraph 268 of the judgment there is “terse and emotional emails” that provided, her Honour found at 393, “significant insight into the plaintiff’s state of mind”. At 394 it demonstrated that the appellant was showing “considerable distress”, and at 597 that it showed the need for “support, assessment, or other intervention”, and at 598 that “all was not well”, “abnormal and out of character” behaviour, and there in 598 her Honour described this as “a sentinel event”, and despite those findings, and as far as the emotion and as far as it being a sentinel event, agreed to by the Court of Appeal.

At 108 of the Court of Appeal’s judgment their Honours referred to that email as providing a basis for the conclusion that the appellant would not have co‑operated with rotation. At this stage if your Honours have that paragraph open where at 107 the Court of Appeal refers to the judge’s conclusion at 733 of the trial judgment and there quotes from her Honour’s judgment that:

The plaintiff’s co‑operation with exploring alternative roles at the OPP after 9 February 2012 supports the likelihood that she would have co‑operated at the earlier stage if appropriately informed of the rationale for such actions.

I raise that point here because the Court of Appeal go on to overturn that finding. If your Honours turn to 733 – and it is convenient to deal with it now – at 733 of the trial judgment your Honours will note that that is referred to after her Honour has referred to:

Screening by a clinician briefed about the work, and notification to the employer of the outcome, would prompt the taking of steps to reduce a staff member’s exposure to trauma by altering work allocation, or arranging time out, or rotation to another role –

Then, there is set out the three lines to over the page, which is referred to by the Court of Appeal at paragraph 107. What is not referred to is the evidence that her Honour referred to:

Professor McFarlane opined that because the plaintiff was not rotated out of her position at an earlier time, she faced risks of further exposure to the trauma. On the evidence before me, no good reason was advanced by the defendant showing why the plaintiff could not have been rotated to another part of the OPP that did not manage sexual offences.

And indeed, your Honours, that is in fact the position – her Honour’s finding that there was no reason put forward, not contended at the trial, that in some way or another that here the respondent could not rotate the appellant out of the Serious Sexual Offences Unit is not an issue. The finding of the trial judge there is important – it is important, and it is consistent with what her Honour has said at paragraph 688 of the judgment. There, in the last lines of 688:

No explanation was provided by the defendant as to why it would have been too costly, inconvenient, or impractical to implement a more flexible approach to rotating staff from the SSOU or altering their work or case allocation.

Also, your Honours, it is referred to at 701, again in effect repeated by her Honour from line 4, referring to:

This kind of measure was seen at the time the VT policy was created as an appropriate way in which to respond to the risks of vicarious trauma. It was not explained to the Court why the defendant would have been disadvantaged by adopting these measures in terms of cost, practicality or convenience. The OPP is a relatively large organisation, therefore accommodating time outs, secondments, and rotation should not have been too difficult or too much of an impediment, given the risks posed to staff. It was not suggested by the defendant that this might be otherwise.

KEANE J: Mr Rush, can I ask you in relation to what her Honour goes on to say at paragraph 692:

In the present case, in circumstances where there was a foreseeable risk to the plaintiff’s well‑being by the end of August 2011 –

but having regard to what her Honour has said at 691 and previously, is it the case – I am having difficulty understanding what to make of this, because it would seem that her Honour has found that the respondent was in a position of appreciating the existence of a risk, and of having understood the need for various measures to deal with it, and that these measures had not been applied and that that was the case before the end of August 2011, but yet her Honour concludes in 692 that it is only:

by the end of August 2011, [that] a supportive welfare inquiry was –

needed. Should one be reading this judgment as if her Honour has found breaches of the duty to provide a safe system of work quite apart from the need to make a positive inquiry, and then has gone on to say that after the end of August 2011, a positive inquiry was necessary to take reasonable care in addition, as it where, to the obligations that were already recognised in the respondent’s various policies as being elements of a safe system of work? Should we be reading it this way, or is that not right?

MR RUSH: I would say that your Honour should read it that way ‑ ‑ ‑

KEANE J: It is just that in the Court of Appeal no one seems to have read it that way and in the submissions we have had no one seems to have suggested that we should be understanding her Honour’s judgment in that way.

MR RUSH: I agree with your Honour in relation to those observations, but I think from the position of the trial judge – I absolutely agree with your Honour, what your Honour has noted in relation to those findings, particularly at 691 – but as far as the particular circumstances where the appellant is concerned, the way in which the trial judge has proceeded is that this was the sentinel event that required that the manager intervene by way of process being occupational – or the inquiry – and the occupational screening. In that context, I think her Honour has focused her findings in relation to breach of duty of care – the particular circumstances of the appellant – but certainly I take on board what your Honour has said about findings in relation to the failures that existed prior to that time.

GLEESON J: Mr Rush, in connection with this, it would assist me to understand the way the issues were joined between the parties because I had understood that the defendant’s case was that no duty arose until February 2012.

MR RUSH: That is the case, your Honour. Here the defendant, respondent, argued that it was not until 2012 that the duty of care was engaged from the position that was put on behalf of the appellant at trial. It was, in effect, that the duty of care was engaged by the sentinel event of the late August email. So, in that sense, from the appellant’s perspective, the welfare inquiry – the occupational screening – and then the necessary steps to remediate her exposure to this material, would focus around the culmination of events in August 2011.

Can I, if the Court pleases, specifically turn to the ground of appeal and that part that deals with the overturning of the trial judge’s inferential reasoning. We contend, as the Court is aware, that here the Court of Appeal has accepted two important inferences and they are set out at paragraph 105 of the Court of Appeal judgment. Your Honour, the Court will be aware of it, that as a first step:

that if the plaintiff had been offered an appropriate welfare enquiry, she would have taken up that offer.

The conclusion of the trial judge that the step in the causation chain – the second step – on the basis of the evidence given by McFarlane:

that the plaintiff was likely suffering from a post‑traumatic stress disorder in April 2011 -

The Court of Appeal agreed with the reasoning of the trial judge:

that screening by a clinician –

again, as Justice Keane has noted, focusing on August 2011, would:

have revealed the plaintiff’s work‑related symptoms –

but those two steps were agreed to by the Court of Appeal. Then the Court of Appeal go on at 106 to question the third step, and there the responses, they firstly refer to the evidence:

based on the evidence of Professor McFarlane and Dr Dharwadkar –

and contend:

the only outcome or response, which would have prevented the exacerbation of the plaintiff’s condition, would have been for the plaintiff to be rotated out of the SSOU.

We question that statement, but be it as it may the court goes on to say:

It was not suggested that the defendant could have compelled the plaintiff to move to another unit that did not involve work relating to sex offences. Such action by the defendant would have been precluded by the terms of the plaintiff’s contract of employment –

Your Honours, that, we contend, overlooks some salient features in relation to the manner in which this case was run at trial. As we made clear, a rotation was not the only option that was available. We contend that, on the basis of the expert evidence, reduction or modification of exposure to traumatic material, use of the options that have been referred to as I have taken the Court to at 733, 741 and 742 were what were called into play, but the most ‑ ‑ ‑

GORDON J: Mr Rush, may I ask a question about that? Is it the position that – I got a bit confused when you compare paragraph 102 and 106 of the Court of Appeal’s judgment. Paragraph 102 appears on page 325. In the third step they correctly identify the various options - is that right - and then omit them when they get to 106? Is that the complaint?

MR RUSH: Yes, your Honour. Paragraph 102(c) and what is set out there is inconsistent with what the court has referred to and the way in which it has reached a conclusion - 102(c), I should say, is inconsistent with the way the court reasoned in 106, that the nature of what the court is referring to there sums up the way in which the case was put by the appellant at trial, and then that is converted by the Court of Appeal to, or narrowed, to the only option being rotation at 106. We agree with your Honour as to the ‑ ‑ ‑

GORDON J: Then to complete that, can I ask you how that then sits with her Honour’s finding at 739 on page 242? Is it to be read that her finding is that those measures offered in combination would have prevented the relevant injury?

MR RUSH: It is inconsistent with that finding, your Honour.

GORDON J: I see.

MR RUSH: Her Honour there, as your Honour notes, refers to the flexibility of the options that were available, and, using the trial judge’s words, 741, to be invoked as a proper system of management to reduce exposure to the traumatic material.

KIEFEL CJ: Mr Rush, the Court of Appeal at 106 appears to be saying that the only outcome or response is rotation – arises from the evidence of Professor McFarlane and Dr Dharwadkar. Is that correct or do the doctor and the professor refer to the wider options that are referred to at 102?

MR RUSH: Your Honour, I will look at the passage’s detail, but we would say that the way in which both those doctors have referred to the options is, in effect, to reduce exposure. There is one paragraph – and I will come to it, your Honour - where there is reference specifically to “rotation” as a part of that. But, from her Honour’s perspective, the way in which her Honour dealt with this was to deal with it in terms of removal from the exposure to the traumatic material.

EDELMAN J: Mr Rush, do you accept the correctness of the Court of Appeal’s conclusion given their premise? In other words, given the premise that the only outcome or response that would have prevented the exacerbation of the condition would be to rotate the plaintiff out of the SSOU, do you accept that it was not open for the defendant to do that because of the terms of the plaintiff’s contract of employment even if, for example, occupational health and safety meant that the plaintiff’s psychological welfare would be seriously threatened.

MR RUSH: Your Honour, we do not accept that. I will come to it in more detail. But we do not accept that at all. We submit that the nature of the duty of care required of an employer could not be fulfilled in the circumstances and, here, that the contract of employment – and the contract of employment was never argued before her Honour as being, in some way or another, a bar to rotation in this case. It was not put that way.

The way in which the contract of employment was argued in the trial was that there was a bar to some compulsion in relation to occupational screening. It was not put that there was a bar – or in some way or another it prescribed in some manner the way in which the respondent should go about reducing trauma. I will get it and refer to it before I finish, your Honours.

There is transcript that we have put in the additional material filed on behalf of the appellant which is in the last day of this trial where her Honour specifically asked questions in relation to rotation. There is the admission from counsel representing the respondent at trial in relation to that.

GORDON J: Mr Rush, may I also ask, in that context, if you could address this Court’s decision in McLean (1984) 155 CLR, especially at page 314 which, as I read it, would seem to contend – not now, Mr Rush, but in your own time – about having a safe system of work and where the evidentiary onus lies.

MR RUSH: Yes, your Honour. We intend to take the Court to that decision. So, we contend, your Honours, that, as indicated and stated at paragraph 106, so limits the nature of the scope of the duty of care and that it is based on a premise not argued at trial, in no way analysed in any respect in that paragraph by the Court of Appeal. We contend, as I have indicated to Justice Edelman, that that is not a sustainable conclusion by the court.

As the Court is aware, at 733, the trial judge concluded that there was no bar to the rotation and in fact, as I have taken the Court to, that the appellant would have co‑operated with rotation. The Court of Appeal did not refer to what I have taken the Court to at 741, the measures that were necessary to be invoked by the employer to ensure and prevent further exposure. The use of the word “invoke”, as I have indicated to the Court, we say is important, and a differentiation between the offer of screening and the option to be invoked, or the options that were potentially to be invoked.

We would contend, as we have noted in our submissions to the Court, that the reasoning of the court lacked a full review as is required, and importantly in relation to that there is no reference by the Court of Appeal in its findings at 106 and following to appreciate that here the appellant had no insight into her injuries.

Again, by way of noting, this is referred to by the trial judge at paragraph 600. Perhaps if I just take the Court to this paragraph as exemplifying the point that we seek to make. Her Honour at 600 refers to:

The defendant’s submission that the plaintiff failed to notify the defendant that her mental health was being damaged by the work contains the implication that she actively refrained from raising her PTSD symptoms with her employer. However, I am satisfied that the evidence revealed that the plaintiff lacked insight into the way in which the work was affecting her mental health and did not know that it was causing her PTSD at the relevant time. Rather than highlighting a failure by the plaintiff to notify her employer of her condition, I consider that there was a failure to properly supervise or monitor an employee showing signs of being at risk.

For emphasis, at 718 there is specific reference by her Honour to the evidence of McFarlane and Dharwadkar that:

the plaintiff did not recognise the extent to which her exposure to the work was damaging her mental health in 2011. This opinion is consistent with the fact that, after 9 February 2012, when the plaintiff notified her employer of serious return to work issues, she was ambivalent about having to leave the SSOU and still hoped to return to work in the OPP.

So that is an important factor that was overlooked by the Court of Appeal. Also, and I say again I ask the Court to note paragraphs 418 and 714 where her Honour specifically noted the uncontested evidence of McFarlane that persons like the appellant suffering from PTSD often put themselves in an environment where they are working at a cost to themselves. It is, we say, an important aspect that was overlooked by the Court of Appeal in its failure to properly analyse the evidence prior to rejecting the inference of the trial judge. At paragraph 108, the Court of Appeal observed that:

The circumstances of 9 February 2012 were, on the evidence, plainly very different to the circumstances that took place on 29 August 2011 and in the following months.

What occurred in February 2012 is neatly summarised by her Honour the trial judge at paragraph 775 of her judgment. She states:

After 9 February 2012, when the defendant sought further information about the plaintiff’s inability to return to work in the SSOU, she cooperated with a request by the defendant that she attend Mr Carfi –

a psychologist who was part of the EAP system at the OPP:

for a psychological assessment on 22 March 2012.

I just interpose that in August 2011 the appellant had made an appointment with Mr Carfi while she was on sick leave but was unable to keep it. Her Honour goes on:

She also returned to Mr Foenander –

who was a psychologist that she was referred to while she was on sick leave in August:

and consented to the supply of reports from him to the defendant. This shows that once she was made aware of the risks of working in the SSOU, the plaintiff was open to following the recommendations of health professionals.

That evidence, we contend, was not properly analysed, not properly assessed by the Court of Appeal, and that to understand the Court of Appeal’s use of the term, plainly very different, or at max understanding that term, of the factual scenario and the way in which, here, the appellant co‑operated once aware of her psychological injury.

We note that, in that sense, your Honours, on the special leave application, our learned friend as counsel for the respondent conceded that the appellant, having been previously outspoken and being party to the memorandum of management document of April, and the fact that she accepts that she went for psychological treatment in August of 2011, were all matters that were relevant to the way in which she would have responded to the sort of inquiry or at least the rotation if it became a rotation issue, the way in which she would have responded to it.

Our learned friend used the word that it would be “absurd” to argue otherwise, and we respectfully agree that they are the matters that are referred to at paragraph 732 as being important background matters for this appellant, but again, matters that were not considered by the Court of Appeal.

KIEFEL CJ: Mr Rush, this might be a convenient time for the Court to take its morning break.

MR RUSH: Thank you, your Honours.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

KIEFEL CJ: Yes, Mr Rush.

MR RUSH: Your Honours, I suspect I will be about another 10 minutes, 10 to 15 minutes. Just finally dealing with the point, your Honours, as to this rejection by the Court of Appeal that the appellant would have co‑operated. At paragraph 406 of the trial judgment, her Honour referred to the evidence of Professor McFarlane as to how people who appreciate, as the appellant did in February 2012, the nature of their condition, will generally cooperate. And he gave that by reference to persons that he has seen in his practice, he spent time:

to explain to them the nature of what’s happening and to really give them the context and the consequences and the circumstances . . . they will take that advice.

Her Honour set that out and relied on it and, again, a matter not dealt with by the Court of Appeal.

GLEESON J: Mr Rush, in a different context in Rosenberg v Percival 205 CLR 434 at paragraph 24, after noting that the test of causation is subjective, Justice McHugh says that:

What a reasonable person would or would not have done in the patient’s circumstances –

When given advice, offered advice:

will almost always be the most important factor in determining whether the court will accept or reject the patient’s evidence as to the course that the patient would have taken.

Is that approach applicable in the different circumstances of this case?

MR RUSH: Your Honour, that approach has, we would contend –the Rosenberg v Percival approach – to really be of little value in relation to – to be asking, here, the appellant, in trial, if she would have co‑operated with rotation, we would contend is of little or no value in relation to this particular aspect.

GLEESON J: Well, that passage actually raises two issues. What I was more interested in was what is said in the earlier part of that passage, which identifies what a reasonable person would have done as a relevant factor in working out what the particular individual would have done faced with advice.

MR RUSH: Your Honour, I misapprehended where your Honour was going on that. We would contend that that is absolutely apt and, in our submissions we refer to the defying of common sense in relation to the outcome as far as the Court of Appeal was concerned. We would contend that here it is of importance that it be understood that, in the sense that your Honour raises it, a reasonable person knowing of the diagnosis of PTSD, knowing that further exposure to this work would exacerbate that condition, that is an important aspect and, again, in its review not properly considered by the Court of Appeal.

GORDON J: Mr Rush, can I just ask two questions further about that? Is that, as Justice Gleeson just put to you, because that is a failure to warn case as distinct from a safe system of work case? Is that the first ‑ as I understand the way it is being put, is that right?

MR RUSH: I understand that, your Honour, yes.

GORDON J: I understand, I see. Then, secondly, when you say, “lack of common sense”, is that because you seek to rely upon the McFarlane evidence you just took us to that the majority of people properly advised would have taken the advice?

MR RUSH: Correct, your Honour.

GORDON J: I see, thank you.

MR RUSH: The other matter that was raised this morning concerning the evidence, your Honour, of Dr Dharwadkar and Professor McFarlane, there are three references for the Court that I have extracted over the break. At 690 of her Honour’s judgment, her Honour, in the bottom line of that paragraph at 226, notes:

Professor McFarlane’s testimony, supported by Mr Foenander and Dr Dharwadkar, underlined the importance of reducing exposure to triggers for PTSD in order to successfully mitigate psychiatric injury.

At 738, there is reference to Professor McFarlane and Doctor Dharwadkar on their evidence:

I am satisfied that, if action had been taken to reduce the plaintiff’s exposure to vicarious trauma by around the end of August 2011, she would not have suffered PTSD of the same severity and chronicity.

Finally, at 675, there is reference there to Professor McFarlane and his evidence, her Honour stating over the page at 223 that:

if a staff member –

using that evidence:

was on the verge or had a diagnosis of PTSD, then they should be removed from that direct role to avoid exacerbation of their injury.

Finally, your Honours, just in relation to a point raised and concerning ground 2, raised by Justice Gordon, and the content of the duty of care set out at 702 and also could I take the Court to 702 of the trial judge’s judgment, it is replicated at 102 of the Court of Appeal judgment, but the, in effect, five matters that her Honour summarised here concerning the duty of care which offer a safe system of work:

an active OH&S framework; more intensive training for management and staff regarding the risks posed by . . . [e.g.] PTSD; welfare checks and the offer of referral for a work‑related or occupational screening, in response to staff showing heightened risk; and, a flexible approach to work allocation, especially where required in response to screening, including the option of temporary or permanent rotation from the SSOU where appropriate.

Now, your Honours, at 106 and following, the way in which the Court of Appeal has gone about narrowing the nature of the duty of care, we say, is unsustainable in the sense that the way in which an employer should conduct itself concerning the safety of employees who are at risk of injury cannot, in some way or another, be subjected to the wishes or the will of the employee. Your Honour Justice Gordon asked me specifically to refer, as we do in our written submissions, to McLean v Tedman, and it is at tab 8, and at 313 the Court there spoke of:

The employer’s obligation –

not only:

to provide a safe system –

but:

to establish, maintain and enforce such a system -

noting:

Accident prevention is unquestionably one of the modern responsibilities of an employer . . . deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.

There is nothing in the materials or the arguments that were put to the trial judge in this case that would in any way circumscribe what is there said by the Court. And at 314, the Court went on to note, at point 5, the middle of the page:

We would reject the suggestion that the appellant bore the onus of proving specifically that the alternative system was acceptable to the employees and that they would have carried it into effect. In our

view, once the appellant was able to point to an alternative and safe system which was practicable in other respects and would have obviated the relevant risk of injury, it was for Brambles to establish that in the circumstances of the case it would have been unable to enforce compliance with the suggested system because its implementation would have been resisted by employees on the ground –

So, we contend that the way in which the Court of Appeal has dealt with this, firstly by going to a contract that was never tendered and making a finding that was never submitted in relation to the effect of the contract –

but more particularly in relation to the circumscribing of the responsibilities of this employer and its requirements under the duty of care is, as I have said, not something that can be properly sustained.

Just to deal with the final points that were taken from McLean v Tedman to reiterate as an example that is dealt with in the final three lines of paragraph 733 of her Honour’s judgment where she noted that there was no evidence put before her from the respondent to give a good reason as to show why the plaintiff in this case, as she found:

could not have been rotated to another part of the OPP that did not manage sexual offences.

So, they are the matters we put, unless the Court has any questions.

KIEFEL CJ: Yes, thank you, Mr Rush. Yes, Mr Walker.

MR WALKER: May it please your Honours. Given the issues that have fallen out as a result of some of your Honours’ questions to my friend, may I – before embarking on the course set out in our outline – directly confront some of the questions concerning the nature of the case as it was the subject of the appeal by way of rehearing in the Court of Appeal – and in particular questions concerning the undoubted duty of care – with reference in particular to its scope or content – and in particular to the circumstances which…..did not justify the Court of Appeal in finding that there was a failure to make out the requisite causation – so that is on the appeal issues as distinct from the contention issues.

That will also involve, I hope, attending to matters that have been raised in particular by your Honour Justice Gordon concerning McLean v Tedman, to which I will come immediately. But, first, going to passages in the trial judgment which are significant for understanding the critical paragraph 106 of the appeal judgment, can I start at the book, 227, with paragraph 691? Her Honour there expresses herself persuaded concerning what the circumstances – which we accept do include the appreciation displayed by the vicarious trauma policy, to which I will come – would include the encouragement to management:

to modify an employee’s work allocation or role, including ‘time out’ or –

what her Honour calls:

rotation from the SSOU.

At that point, as we shall show from the source material for that, the question of compelled rotation really was not presented. Her Honour then goes on to refer to a system – a system being, with respect, an appropriate word to describe what is required as a response to the circumstances that impose the duty of care and the system involving, of course, preventive precautions.

Those preventive precautions, that is, generally, not just for this plaintiff, included such matters outside the complaint in this case as what I will call overwork or casemix, which her Honour refers to as “caseload or casemix”. Her Honour then in 691 refers to the system as one that ought to have had available the notion of:

Rotation or ‘time out’ from the SSOU . . . to reduce exposure to trauma –

and then an important phrase:

if required by a staff member –

Either ambiguous or at least not dispositive of the question as to whether that was an expedient that could be imposed on a staff member against their will. Your Honours appreciate of course that there is therefore a pressing need to appreciate the extent of the duty to bring things sufficiently to a head between manager and staff, however confidentially, in order to permit in particular a staff member to acquire sufficient insight to make in his or her own interests an appropriate decision such as stepping back from such work either to a degree or completely. That would no doubt depend therapeutically upon perceptions at the time, including by experts such as treating psychiatrists or psychologists.

Then at paragraph 692 her Honour moves to this case and immediately and it would appear accepting the way the parties have framed and fought issues at trial, refers to her conclusion that:

there was a foreseeable risk to the plaintiff’s well‑being by the end of August 2011 –

Now, I interpolate that is the subject of our contention, but none of what I am about to argue has to do with the possibility of us succeeding on our contention. It is accepting the appeal ground has a premise that there was what her Honour calls a:

a foreseeable risk to the [plaintiff’s] well‑being by the end of August 2011 -

It may be the language is conceptually undesirable in the sense that the foreseeability of risk, we accept on the evidence now, as one must, was not special to the plaintiff and arose because of vicarious trauma, hence the vicarious trauma policy which is explicit as to the existence of a risk. That is, vicarious trauma itself is unavoidable, that is, it will happen from the nature of the work in the Serious Sexual Offences Unit, particularly in relation to offences against children, but not confined to them, and because of the risk of serious psychiatric injury including PTSD, there was obviously a reasonable response called for by the employer who owes a duty of care to all employees concerning the instituting and implementing of a safe system of work, all of which in general terms predates of course the occasion for considering whether there has been a breach of that duty.

So, it is in 692, where her Honour calls upon what might be regarded as a system – 691 – to the occasion for it to be operated in a particular way – 692 - for this plaintiff:

a supportive welfare inquiry . . . offer of referral for occupation screening –

which your Honours ought to regard as being an expert diagnostic occasion, that is, by a trained clinician, and then what is called a process for implementing:

temporary or permanent rotation to a different part of the OPP –

That is, the Office of Public Prosecutions, not confined to serious sexual offences if required. So, it is a circumstantial matter and it is a process. That process, we submit, has not been regarded by her Honour – either on the issues fought by the parties, and certainly not on the issues as they survive for decision in the appeal by way of rehearing in the Court of Appeal, to have involved the existence of a power to compel the cessation of all work in the Serious Sexual Offences Unit.

The obvious contrast, of course, is with altering the case mix so as, for example, depending upon diagnosis, insight, and co‑operation, the solicitor in question may have fewer, or perhaps no child‑sex cases of a particular kind for a period or indefinitely, et cetera, et cetera. It may also be, though the evidence is not clear that it would much matter, that there is a case mix difference that could be processed by discussion and agreement with respect to first instance appellate work, and certainly with respect to proofing witnesses – that is witness preparation work – as opposed to other forms of instruction.

Now, at 691 and 692, therefore, her Honour is not at all making findings that she was satisfied that a system either could or in fact should involve compelled cessation of work in the Serious Sexual Offences Unit. That is significant because we submit that if one jumps ahead to 733, with which your Honours are very familiar, the reason for the risk from further exposure given by Professor McFarlane, implicitly accepted by her Honour, is because the plaintiff was not rotated out of her position – that means her position in the unit – not a position more specifically described such as child or adult…..trial witness or other instructing.

It is clear from the material to which we will take you in the professor’s evidence that it was, as we have argued – and this divides the parties before your Honours – it was as a matter of her diagnosis, given her pre‑existing, already existing PTSD, for some months – four months, it may have been – it is clear that it is only cessation of that exposure that would have sufficed.

That is why there is nothing in the complaint that either we or the Court of Appeal have wrongly concentrated on rotation out, to use the expression of the parties, by which we mean cessation of any work in the Serious Sexual Offences Unit, as a solicitor specialising in that area of crime because the evidence ultimately embraced by the plaintiff was to the effect that it was because she continued to be exposed that she suffered the exacerbation that produced the psychiatric injury, which it is accepted she suffered, and which it is accepted was suffered because of that exposure, that is, the repetition, the intensity of the vicarious trauma, by reason of the subject matter and its extremely fraught nature.

Now, that really means, of course, that we accept, as your Honours appreciate in this Court, as in the Court of Appeal, that the point that is now in this Court is one purely of causation, not of the existence of a duty or of the possibility, if we are wrong on our contention point, of it having been breached in August 2011, but the particular breach has to be one which but for it would have left the plaintiff in a better position, and on the facts, which are really facts in favour of the plaintiff, it was because she was not rotated out between August and when she achieved her own insight in February after a long break, it was because of that that she suffered the compensable injury.

Now, at that point I should say by way of footnote, your Honours I think will have gathered that it is not contentious in this Court that the PTSD, the serious psychiatric injury, had in fact been suffered, had commenced to be suffered, it is a continuing condition, in April 2011, and it is also common ground, though it is sometimes difficult to untangle the dead ends of the first instance pleadings, evidence, and argument, it is also common ground in the Court of Appeal and in this Court that we were not sought to be held liable for the onset of a disease in April 2011. That is why, in the various ways it has been phrased, the end of August 2011 highlighted by the email exchange to which my friend has gone and to which I am afraid I will have to return, was the focus of various framings of the issues between the parties, not always happily, in strictly juristic terms.

Thus, let me make it clear, notwithstanding the expression of the denial of a duty in paragraph 4 of our defence, naturally I do not appear before your Honours to say there was no duty of care before the occasion when it was alleged to have first been breached. That would be wrong in principle. Rather, by phrases such as the duty not being engaged or the duty, perhaps even worse, not arising until signs were evident that should have apprised our client, acting reasonably, of the need to take precautionary or alleviating steps in favour of the plaintiff, those phrases were all employed really to say, ultimately, no breach until the end of August 2011, if at all, and our pleading, of course, consistent with what we maintain under our contention, in fact, press dated that to February 2012 for the reasons with which your Honours are familiar.

So, the way in which the parties ran the case focused on August, and the focus on August included, as her Honour, with respect…..reflects in her process of reasoning – and the Court of Appeal correctly understood in their reaching of the critical opposite conclusion – focused on the question of, among other things, of course, on the question of causation depending in turn upon whether the plaintiff would have co‑operated with that which the scope or content of the duty of care upon signs being evident called for from the defendant, namely the process by which she could be removed from doing the work which was the root cause of her illness.

Now, you simply do not find – and, in particular, you do not find in the expert evidence upon which her Honour proceeded – at trial, you do not find the notion of forcing solutions on people. And of course, you do not find – it should go without saying – you do not find any case being advanced that we came under an obligation pursuant to the tortious duty of care to terminate the contract by dismissal.

Now, all of this will overlap, as your Honours, with respect, appreciate, with the notion of a safe system of work, including the requisite lawful direction framework – to use the language of McLean v Tedman – the command and obedience matters, to which I will come – they are related but they are sufficiently separate – I simply flag that they are obviously important at this point. It is for those reasons at the end of paragraph 733 where, as my friend pointed out, her Honour noted that:

On the evidence before me, no good reason was advanced by the defendant showing why the plaintiff could not have been rotated to another part of the OPP that did not manage sexual offences.

That means, out of the Serious Sexual Offences Unit, with respect, correctly – as my friend correctly notes – that her Honour took the view that the contract did not stand in the way of that.

For the reasons I have just put – namely, that the whole case was fought on the need to show, on the balance of probabilities, sufficient co‑operation to have removed the plaintiff from the occasions of vicarious trauma through serious sexual offences because that was the way in which the parties fought that part of the requisite causation of loss, her Honour was not confronted at trial with the need to determine whether the contract would have prevented a compelled outcome because the plaintiff does not appear to have argued that co‑operation was irrelevant, factual investigation of its probability was beside the point because whether she co‑operated or not she could be forced – McLean v Tedman – to remove herself, or that is not to work in that area at all.

It is for those reasons that, as matters were narrowed and refined, there were matters on both sides that were not pursued in the Court of Appeal following the trial, the matter came to be raised directly with our learned friend in the Court of Appeal – as your Honours have seen – as to whether or not it was said that the contract of employment permitted forcible – that is, compelled – that is, willy‑nilly – redeployment by someone who was unwilling to be redeployed.

Your Honours fully appreciate, of course, that had there been such a factual case then questions of constructive dismissal and the like would have arisen, and questions of a power expressly to terminate on that ground might have arisen, none of which occurred at trial, none of which was supplied by way of explanation or answer in the Court of Appeal where, again, issue was joined, facts debated and ultimately a decision reached concerning whether on the balance of probabilities there would have been the reckless…..without which it could not be said there was causation of damage.

It is for those reasons, in our submission, that it is a false issue, bereft of foundation in the running and presentation of argument in the two courts below to suggest that this was a case of negligence by the State in its Office of Public Prosecutions, not compelling someone, against her will, to remove herself from the job she loved and the specialisation of which she was proud, in which she sought promotion, and had gained promotion.

It is in that light that one sees why that was a battleground, not only at trial but, significantly, in the Court of Appeal, because the case did depend upon whether the plaintiff could show that had the defendant done that which we now accept we should have done, nonetheless the plaintiff would have still suffered the injury because, more likely than not, she would not have taken up the offer by the process which could have resulted in redeployment.

We accept, may I just look forward to our main answer to the appeal - we accept, of course, as our learned friend has put it, and has in exchanged written submissions in this Court displayed, that at the heart of that question is the correctness of the Court of Appeal’s reversal of the decision on the balance of probabilities by the trial judge that had the defendant done that which it ought to have done, the plaintiff would have responded, of her volition, instructed, guided, with different insight from that which she displayed in fact at the end of August 2011, so as to agree to a process and a means which might even have involved variation of contract, but we do not need to pursue that question, for her deployment away from, rotation out of the serious sexual offences work which had caused her injury and threatened to make it worse.

We accept that that is the proper framing of the issue on the appeal and we therefore accept, of course - and this is no concession on my part - that when one goes, as the Court of Appeal did, to how the plaintiff had responded in August through, without the offer of what I am going to call, in general terms, counselling, that might be said, in general terms, to have been the intended aim, that which the scope or content of the duty of care called for once a sentinel event had occurred.

We accept that in an appeal by way of rehearing there has to be an error shown, but it is an error shown by a Warren v Coombes means of disagreeing with a conclusion which is certainly not based upon demeanour, for reasons to which I am about to come, concerning the balance of probabilities as to a response in August, not in February, in August, to being apprised of the dangers and the harm already suffered on the part of the plaintiff.

In that context of course the expert evidence to which my friend has appropriately referred is evidence the Court of Appeal calls in aid and we will in due course refer to it in our argument to this Court to seek to persuade your Honours that there was nothing wrong with the Court of Appeal, acting as it must in its appellate role in an appeal by way of rehearing, differing from the trial judge on what the evidence justified on the balance of probabilities. Was it more likely than not, as the plaintiff had to show, that she would have co‑operated, her co‑operation being necessary, in depths which would have removed her one way or the other from doing this kind of work.

Now, one then goes, as, with respect, Justice Keane raised with our learned friends at the outset of the hearing, to the way in which that might be seen to compare with a more general safe system of work consideration of this case. That is in particular to be found at the commencement of her Honour’s conclusion on breach in paragraphs 702 to 704 of her Honour’s reasons at trial on page 230 of the book.

A safe system of work, of course, is one that needed to be in place and available as the occasion presented it for employees in this position from time to time. So, as I have said before, the duty of care, the staple content of which required a safe system of work, was one that binds the defendant from the beginning of the employment relationship for an employee, not just this plaintiff, carrying on this kind of work.

In 702, one sees in particular that there are very general matters redolent of the vicarious trauma policy, to which I will come, that her Honour held were entailed in a safe system of work. It starts with the most general of things, that I am at a loss much to elaborate, which is:

an active OH&S framework –

But it should be remembered, of course – and adversely to my client – that there are the findings I do not contest concerning the apparent ignorance, for example, of the unit’s manager of the VT policy itself. So, one can see, with great respect, why her Honour may have started with that very general proposition. The second one is even more obvious in that context:

more intensive training for management -

Then we come to one which begins to raise the kind of concern, or countervailing factors of which Justice Keane wrote in the Queensland Court of Appeal in Hegarty, namely:

welfare checks and the offer of referral –

and the sensitivity, which is obviously to be expected as a matter of reasonableness derived from a form of social decency concerning when one should make inquiries, or the extent to which one should, as it were, ask somebody whether their being down in the dumps is due to their being oppressed by the work or is it something at home, et cetera, et cetera, with all the attendant risks of impertinence or worse with respect to truly private and personal matters. Then, her Honour concludes that item by the necessary qualification that it has to be:

in response to staff showing heightened risk –

and we understand her Honour is there referring to the kind of sentinel events or signs that the case law refers to as being in the run of cases necessary before one could hold in breach of the general duty of care an employer for not inquiring whether the work that somebody has agreed to do is nonetheless causing them a sickness. Then we come to something which is still generally expressed, and which says nothing concerning compulsion – if anything, to the contrary – and that is:

a flexible approach to work allocation –

and then one sees again that that will be by reason or what may or may not be discovered by so‑called “screening” – and it appears our friends accept as, with respect, they should – given the way in which this case was fought – that screening would never be compulsory – not like the Defence Force certain units, for example:

including the option of temporary or permanent rotation from the SSOU where appropriate.

Oddly, it would appear that now, at least in this Court, your Honours have been pressed with an argument by our friends in the outline – it can be seen in particular in proposition 7, and in particular 7(a) – that that is an option, like a real estate contract, which is unilaterally available to one side, by which its outcome can be imposed on the counterparty. That is not how the material upon which her Honour was drawing here, including the policy, and it is certainly not how the expert upon which her Honour drew so fundamentally, was proceeding at all.

The option is principally a choice first to be made available to the employee by the employer, but then to be exercised by the employee, all of course on the premise that the employer had performed what the scope or content of its duty of care called for in the particular circumstances after the sentinel event, with respect to facilitating – not compelling – facilitating the plaintiff – the employee to reach…..insight as to make what our learned friends rather overstate as really the only decision a rational person could make.

It is for those reasons, in our submission, that when one looks at 702, and leaving aside the question as to whether that means there was some kind of case where matters of autonomy, dignity and privacy would never arise – I will come back to that – one can see that her Honour was not proceeding on the basis of compelled rotation. In 703, in finding the breach in terms of the response being not that of a reasonable employer, her Honour appears to be referring back to the steps summarised or described in 702 and makes findings, many of which we are not undertaking to contest.

Paragraph 704 comes more specifically from what I will call the general system to its application to the plaintiff and, in accordance with the authorities, her Honour attends to the question of signs, both their existence and their response to it, and makes findings which, subject only to the contention, bind us, are adverse to us, in particular the notion that at the end of August 2011 “a welfare inquiry was plainly required”. Of course, that is not the language of being able to compel someone either to disclose their private concerns or their private pressures which are piled on top of their work pressures, or of course their confidential dealings with psychologists, doctors or psychiatrists and, to be fair, our friends do not contend otherwise.

Again, there is this notion of offer of occupational screening and our friends embrace of course, as the framing of the case would require, that that too involves no compulsion, nor any indirect compulsion. That is, nothing along the lines of, “It’s a matter for you whether you take up occupational screening, but if you don’t you won’t be able to do this kind of work anymore”. The case was not run on that basis.

That does not mean, of course, that in another place, probably not a court of law, unless it be an industrial tribunal, there might not be serious consideration given as to whether that kind of system is appropriate. But that is a million miles away from the issues argued in this case and presented for decision in this Court. And then her Honour simply generally speaks of a:

system in place to respond to the outcome of any such screening.

So, assuming there was screening, assuming, as the facts, that we do not contest, even under the contention point, show, namely, that there would have been revealed PTSD, and therefore the serious risk of it being made worse if vicarious trauma continued from exposure to such work. Assuming all of that, there is still the question as to what, then, is called for by the scope or content of the duty of care. And it is, in our submission, a new manifestation of the plaintiff’s complaint to propose what 7(a) of the outline in this Court would appear to advance.

The scope or content called for a compelled redeployment, which may be a euphemism for dismissal, of the plaintiff, their client, in August 2011, bearing in mind that we can only hypothesise, necessarily, in such a way as the plaintiff would have to show the hypothesis in the counterfactual on the balance of probabilities, because we know what she actually thought about this work, and as I shall show concerning the five important documents our learned friends commenced with, those are documents which show a very strong cadre of attachment to specialised work ‑ complaint that there is too much of it in the sense of not enough people and hours in the day to deal with it, but certainly not a complaint about wishing to do less of that work by doing, say, some other work in the Office of Public Prosecutions.

It is for those reasons, and responding, I hope, to the concerns raised by Justice Keane with our learned friend at the outset, that this is not a case where one locates the deficiency in the defendant’s conduct back long before August 2011, let alone long before April 2011 when PTSD was first experienced, that is, where the onset occurred ‑ ‑ ‑

GORDON J: Mr Walker, could I just ask one question about that please - would that be possible?

MR WALKER: Of course, your Honour.

GORDON J: Could I ask you please to go to core appeal book 242, and this is ‑ just so I understand your case. In 738, the trial judge sets out the evidence of the two experts to explain that those experts are:

satisfied that, if action had been taken to reduce the plaintiff’s exposure . . . by around the end of August 2011, she would not have suffered PTSD of the same severity and chronicity.

MR WALKER: Yes.

GORDON J: In 739 the trial judge says:

In conclusion, regarding each of the measures ‑ ‑ ‑

Do you accept they are each of the measures that you have just identified back up at 702?

MR WALKER: That is how we read it, your Honour.

GORDON J: Thank you.

MR WALKER: It is not clear beyond doubt, but we would urge that is correct.

GORDON J: Well, I think it may be because it then follows on and seems to list the same ones, but put that to one side.

MR WALKER: Yes.

GORDON J: It then says that:

the defendant’s failure to implement these measures materially contributed to the exacerbation and prolongation of the plaintiff’s PTSD, and subsequent development of MDD.

MR WALKER: Yes.

GORDON J: I am getting there, I am slow, I am sorry about this. Paragraph 740 deals with the disaggregation point, I will park that for a moment, and then do I read 741 and 742 as her Honour emphasising that not only was it:

vital that there was a system in place . . . by conducting appropriate welfare inquiries –

et cetera, but that those measures were the “springboard” – is the way she describes it – to what I will call the more severe measures. And so, in 742 the trial judge says:

Without a system for inquiring about staff well‑being, and offering occupational screening, [in effect] management could not –

do what they needed to do, and that the failure of them to implement that system – and the footnote is:

Between April and August 2011 or thereafter.

MR WALKER: Yes.

GORDON J:

with the option to rotate . . . meant that the opportunity to prevent or reduce her injury around the end of August 2011 was missed.

MR WALKER: Yes.

GORDON J: Therefore, it leads to the conclusion at 742.

MR WALKER: Yes, I am ‑ ‑ ‑

GORDON J: That seems to be quite different from the way – am I right – to the way that you have just put it to us.

MR WALKER: No. That is the passage I am next coming to.

GORDON J: I am sorry; I apologise.

MR WALKER: No, sorry, it is my deficiency entirely, your Honours. One does not find all in one place the way in which your Honour reasons with respect to the duty, its scope or content, its breach, and then – as that compares to the pleaded and argued case – there being a difference between the two ‑ and I do have to come to this passage. What is the – the way in which your Honour progresses, including through the important figure of speech of “springboard”, is to the point which she accepts – see 733 with which I started – was necessary in order to avoid the post‑August 2011 harm. In other words, her Honour does not find, at all, that an offer of screening would have avoided the harm.

She does find that an offer of screening, if taken up, and if the screening produced the intelligence which we accept on the balance of probabilities it would have produced, then there would have been, pursuant to the scope or content of the duty and the steps it called for, the “opportunity” – her Honour’s word, in 742 – for the option to rotate. The option – that is, the choice ‑ for the reasons I have put, not being unilaterally the employer’s – the option for the employee as well – if anything, it is compulsory under the duty of care in those circumstances for the employer to offer the option but not compulsory to impose rotation.

The word “option” makes no sense once one accepts ‑ as her Honour found and we accept these premises – that subject only to the notice of contention by the end of August 2011, the signs were such that the further exposure to vicarious trauma from doing this Serious Sexual Offences Unit work, was an unacceptable risk, a reasonable response to which required its cessation. The question is whether that is a reasonable response that the law requires, bearing in mind the way in which cessation might variously be brought about.

We submit, as your Honours know, that a reasonable response does not include a compelled cessation, that is, the effective dismissal or removal from the job and that autonomy, dignity and privacy – particularly autonomy and dignity – are not removed, they do not become questions that do not arise, they are a constant concomitant that examination of the reasonableness of an employer’s response to threaten harm to an employee of this kind of mental injury.

The word “option” to rotate is obviously not available when her Honour has found that there had to be rotation in order to avoid the injury. One cannot imagine the word “option” applying to the defendant in that position. The defendant does not have an option whether to do the thing which would avoid further injury, but a plaintiff in an employment relation where the autonomy and dignity of the plaintiff as employee is important can of course, in the way the expert evidence showed, have the ultimate say as to whether the advice given in their own interests by experts, by advisers, by counsellors, should be taken.

Her Honour’s use of the word “option” in 742 is antithetical to the notion of this being simply the unilateral choice by which the employer can compel a step back from this work and it is her Honour understanding from material which includes the policy, but also the expert evidence, the option is ultimately a choice for the employee.

Now, it means of course that in a case where the employee was not persuaded by screening, advice and counselling which complied with the standard of care, it may not ever be possible - unless there is a recurrent occasion - it may never be possible for that employee to complain in negligence about serious illness caused or exacerbated thereafter by continued exposure as chosen by the employee to the vicarious trauma.

We understand, with respect, the rhetorical force of our learned friends saying, even before one comes to Rosenberg v Percival, that a rational person told that if you keep doing this work it will cause you serious and life‑altering injury might be expected, on the balance of probabilities, to have behaved in a particular way, and I have to persuade your Honours on the appeal that there was no error in the Court of Appeal reversing that outcome by the trial judge. We understand that and I am not dealing with that at the moment.

But, in our submission, one thing that is clear is that there is no role here for a case of the plaintiff complaining that, “I was not compelled against my will to stop doing this kind of work”. Her complaint until 7(a) in the outline is to the effect that, “I was not given the opportunity to make that wise decision which would have been better for me”.

That is why her Honour uses the notion of “opportunity” to prevent or reduce injury, because, again, the word “opportunity” would be quite inapt if one was talking about something which was unilaterally at the behest of the employer. If a duty of care called, in the circumstances, for her to be removed from the work, you would not talk about opportunity, you would simply say obligation. It is an opportunity because the employee retained, consistent with autonomy and dignity, the right to say, “I understand the risk I am taking, I wish to continue to do so, because of the value I ascribe, both personally and socially, to the work I am doing”.

The background - I need hardly expatiate on this for your Honours, the background of this whole case on both sides is that, to put it bluntly, much of this work might be regarded as horrible, but because of that very quality, those very characteristics, it is imperative, socially, that it be done. This is not a case, obviously, by which the award or other industrial instrument governing the employment of persons in this role, can be considered or revisited by the Court, let alone, of course, the non‑justiciable questions of the manpower and resourcing and the work hours and work/life balance consequences to which your Honours have seen reference and to which I will be going.

Now, may I, as I said I would, by way of trying to respond to matters that your Honours have raised with my friend at the outset, can I immediately go then, bearing in mind what has been said about compulsion, to the use that our learned friends make in their writing and in their outlaying of McLean v Tedman…..your Honours that the deployment of that authority is as an answer to the Court of Appeal holding that there was a power to command or compel a cessation of this work during the employment which, as your Honours have seen from the contract documents, is employment in the Serious Sexual Offences Unit. That is a description of the employment.

The setting of McLean v Tedman 155 CLR 306, is, as some of your Honours may recall, at a time and in an industry where the work hours were such that working as what is colloquially called “a garbo” was quite often a sensible and sought‑after choice by people who have also wished not only to have any other job but also to work, in particular, as a professional rugby league player, applicable presumably in Brisbane as well as in Sydney.

Be that as it may, it was against that background, namely, the attachment with the workforce, apparently notorious, to getting through the work quickly, that was raised in terms of one of the arguments concerning the reasonableness of the proposed response to what can be seen, presumably by the different values of today in occupational health and safety terms, to be the bizarre willingness to mix traffic and pedestrians, that is, men burdened with receptacles filling the garbage trucks.

Against that background, it is to be understood that the whole issue here was the tension between the common law of contributory negligence as historically altered in its reception in the courts by the statutory replacement of it with apportionment legislation and the ever present willingness not to count as contributory negligence – either for the purposes of a complete defence of common law or as a trigger to apportionment – that which is variously described or which I will call for a moment, momentary inadvertence – even a kind of carelessness not amounting to negligence.

It was against that background that the arguments were put which were dealt with, in particular, by the reasons that start at the foot of 311 – their Honours having referred to the foreseeable and significance risk including, as a cause, the negligence or inadvertence on the part of an employee and then immediately say, not an acceptable answer to assert an employer has no control over an employee’s negligence or inadvertence.

It need hardly be said our case has nothing to do with such an argument but the idea, obviously being floated, that their Honours are demolishing in the passage that follows, is the notion that this ought to be seen only through the prism of control, bearing in mind that which in the ordinary employment relation is imparted by the duty to obey lawful directions.

It was a case about a safe system of work, as their Honours point out at the foot of 311 to 312, obviously subject to reasonableness. The exception of the risks that the employer should take into account and those which arise from the employee’s own inadvertence and negligence is also easily and categorically stated ‑ that is not what the law was. Their Honours then deal with familiar matters that I do not need to dwell on on the rest of that page.

At the foot of 312, top of 313, the change from the unaffected common law to the apportionment legislation is noted and the alteration that may have been said to have achieved illustrated by the quotation from Mr Justice Taylor in Smith v BHP at the top of 313. Once upon a time if you could use the word “carelessness” you would have shown negligence, then it would have been a defence, of course.

The significance of McLean v Tedman, of course, is that in terms of discharging the obligation, that is, complying with the duty, at the paragraph just above halfway on page 313, their Honours repeated, because it is not novel to this case, that of course a consideration of that question:

must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.

Now, interpolating a reference to this case at that point, that has nothing to do with this proposition that there is as a result of the common law duty of care – and I should say whether or not paralleled in an implied contractual duty, as it was originally but not still argued in this case ‑ nowhere could it be suggested that that obligation means, for example, that there is a power to redeploy people away from the job they have agreed to do and, we would assert, which they not unreasonably wish to continue to do, even if at cost to their own wellbeing.

It is not as if there the Court is saying that there is a general power to enforce obedience to commands, including altering the terms of the contract, let alone, of course, the perverse notion that you enforce obedience to commands by commanding somebody no longer to do the work they are contracted to do, a kind of dismissal. And that is why, when one comes over to 314 after the quotation from the evidence, the evidence strongly supporting the practicability and reasonableness of a better system of work, for avoiding the mixing of the traffic by simply using the other side of the road, there had been an argument, one might think in retrospect of some desperation, that even if that had happened, it would not have made any difference because these people would not have obeyed it.

That is the point at which this passage, relied upon by our learned friends, plays a part in the reasons of this Court in McLean v Tedman, it is bizarrely remote from any possible application from the issues in this case. In the paragraph “It is said, nevertheless,” your Honours see that the paragraph is dealing with an answer in that case to do with the causal connection between the putative breach and the demonstrated harm, the putative breach not being to have a system of work whereby they would use the safer side of the road. And the argument was one that said, well, you can have as many systems as you like, but pre‑dawn in the street when the garbage trucks are being filled by these people who want to get off to get to their second jobs, that would not have made any difference to what actually happened in this case.

Their Honours are, with respect, roundly rejecting that argument which, in its fundamentals, of course, turns only on the facts of the case before the Court. It is in that context that questions of onus which have been thrown about in argument are corrected. Reject the suggestion that the appellant bore the onus of proving that the alternative system was acceptable to the employees, they would have carried it into effect, interpolating there, that is a particular instance of the expectations necessary for, if I may say this, a stable or even sane application of “but for” reasoning in tort cases, that the hypothesised conduct would not be unlawful, otherwise it would be chaos to predict the outcome of cases which are meant to be enforcing norms of conduct according to reasonable standards.

So, there is no onus on the plaintiff to show that, if there had been a safe system of work, it would have been obeyed. That question of fact can be raised but it will be up to the employer with all the problematic qualities that such an argument would have in the mouth of the employer to show that it would have been unable to enforce compliance. If that had been made manifest on pleadings, of course, before trial, your Honours could well imagine that it might have led to a justified amendment application to adjust either by way of particulars or allegations of breach a failure to have, and promulgate, a system of work with which compliance was achieved.

That is the only significance, with respect, of what might be called a principle in McLean v Tedman, and it finds no place in this case, because there is no place in this case for the equivalent of being commanded to run on the other side of the road, or, to put it in another way, no compulsion not to do work in the Serious Sexual Offences Unit in which the plaintiff had been retained by her employment. Your Honours, is that a convenient time?

KIEFEL CJ: Yes, it is. Thank you, Mr Walker. We will adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2:15 PM:

KIEFEL CJ: Mr Walker, you referred earlier to how the matter has been conducted by the parties below. I see that amongst the appellant’s further materials, an amended defence is provided, but I do not think the statement of claim has been provided.

MR WALKER: That is right, your Honour.

KIEFEL CJ: Perhaps I might ask the appellant to provide a copy to the Court as soon as possible.

MR RUSH: …..

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: Your Honours, coming then to the order of matters we have set out in our outline, I do not wish to add anything to proposition 1 or 2 or 3 that has fallen out in my attempt to address the matters that your Honours have raised with my friend. In relation to proposition 4, that is, of course, the matter where the details are found in proposition 5, to which I am about to come.

Could I just note, in relation to proposition 4, that the PTSD – which had been suffered before August 2011 – that being common ground – may have given rise to a watch and wait occasion. But, as your Honours will have seen, we took no position so as to discharge any disentangling onus that we would have had. Nonetheless, the fact of the antecedent suffering of the condition is of some significance, we submit, to ascertaining what would have happened in the counterfactual as at August 2011.

Before I come then to proposition 5, could I by way of response to what our learned friend has said about the probabilities as found by the trial judge and as found oppositely by the appeal judges, go back to the setting in which the posited performance of duty would have been carried out had there been no breach of duty.

I want to start by reminding your Honours of what the vicarious trauma policy did and did not do. The reference is in volume 4 of the respondent’s book of further materials - the most easily legible page number is 1148, though I believe it is the tiny number 56 at the foot which is the official numbering.

As my learned friend has already pointed out, the awareness of the dangers of vicarious trauma suffered by people like lawyers in the plaintiff’s position who deal with the survivors of the direct trauma, that is, direct as opposed to vicarious, was plainly well and truly recognised, as this policy suggests. Furthermore, the policy, as shown on its first page, is a policy under the heading of “Health & Wellbeing” and appertaining to the Specialist Sex Offences Unit, the:

detrimental, cumulative and prolonged effects on the staff member –

referred to in the fourth paragraph, and we include, of course, the serious PTSD and depressive conditions relating to the plaintiff. The inevitability of vicarious trauma in itself is repeated on, to use the large number, 1149, section 4, and so it comes with the job. That is not meant to signify some insignificance of it from an occupational health and safety point of view, if anything, to the contrary. However, it does mean that this is one of those occupations where the very task which it is in the public interest and for the social good that it be performed, creates and carries with it continuing risks of harm as to the person undertaking those tasks.

Your Honours will see, at the foot of 1150, a dot point commencing with the expression “Recent legislative reforms”, which refers to the framework within which matters of resources, manpower, money and assistance and the like were evidently an industrial and professional issue for people, including the plaintiff, and your Honours should take into account when considering what has been put by the appellant with respect to staff including herself not coping, that the context is very largely driven by a lack of resources for them to do their specialist work as well as they would like to do it, their specialist work including in the serious sexual offending area, and in particular the desire to draw to attention, as the April 11 letter makes clear, that the position of stress is exacerbated, aggravated, or even for some, created by the, what appear to be, impossible hours that seem to be required.

At the foot of 1150, one can see that it is in the nature of the position that there will be this very demanding work. At 1151, just before 5.2, a similar matter is raised that is said to be “highly relevant” to the unit:

where there is a saturation of content, which limits ‘natural time out.’

So that the position was understood to be one where, unless you were not working in the unit at all, there would be a limit on what could be done by way of dealing with vicarious trauma and its possible sequelae.

On 1152, under 6.2, fourth dot point, a response which has, we submit, nothing to do with the actionable complaints in this case – I stress the actionable complaints – is of course manageable caseloads. That becomes important to the context of the dealings between the plaintiff and her manager in August 2011, to which we will be coming.

One sees, with respect to questions of dignity and privacy, at the foot of 1152, the last dot point, the importance, which needs hardly be emphasised because it is so obvious, of the maintenance of “confidentiality” including with respect to experiencing vicarious trauma. Then at the top of page1153, a matter to which my learned friend has understandably drawn attention. This is all headed by the tag “Additionally, management will” and it says that management will:

Encourage staff to rotate -

and we simply draw that attention. This is not the language of “management will conscript staff to other areas out of the unit, will compel them to stop work in the specialised unit” and then the expression “Rotation options” is included, and one sees that the:

fixed, pre‑determined rotations –

which, having been raised in this case, is no longer maintained by the plaintiff, is one which could have been agreed at the outset but was not and this is not a case where as in the problematic question of whether a duty of care can control the terms in which an employer can or should make a contract. But then there is a reference at the second dot point under “Rotation options” to:

negotiated rotations –

where it is plainly not compelled by the employer as both the word “negotiated” and the expression…..makes it clear, thus for example, the last dot point a reference to seeking:

to accommodate requests –

All of that, in our submission, means that of course the case, by the time it got to the appeal by way of rehearing in the Court of Appeal, rendered critical the question of causation upon which we succeeded below, and which is the subject of the appeal in this Court.

One sees at the foot of 1153, again under 8, a reference to a so‑called “confidential and appropriate manner”, the discussing of “possible strategies” and “options” where, over the page on 1154, there is a reference to an entitlement to access counselling, to assistance being “facilitated”, to the limited option of reallocation of files – now that is files within the unit, as can be seen from the expression:

all files contain an element of sexual assault –

but obviously that would permit, for example, the more ghastly cases being reduced for somebody who was perceived to be, after such consultative discussion, in need of some relief in that regard.

One sees the need for discussion at the end of that dot point. The “time-out” seems to be by reference to requests – as the next dot point makes clear – for discussion and again, the notion of possible negotiation, all of it antithetical to the notion of a capacity, let alone the duty to impose time out.

With respect to the staff memo of April 2011 - in the same volume your Honours will find that, using the large numbering, at 1100 – that is volume 4 of the respondent’s further materials – the tiny numbering 8. I will not read this to the extent my learned friend did – I want to put this recognition of our learned friend’s use of this document to make the point in his…..about the staff recorded they were “not coping”.

In fact, you will find that that is a reference at the foot of 1101, under the heading “Specialisation”, which, if anything, works in the opposite direction concerning what might be called aversion to or against the kind of work they were doing. The “not coping” is expressed to be causing their frustration as:

no time to read recent Court of Appeal decisions that may impact the way we prosecute –

So, that specialist’s jurisprudence as a result of this, that is no time to keep up to date with appellate consideration in their specialist area:

some staff members are left feeling like they are not coping and failing in this area of law.

So, this is an attitude, in some ways of course highly commendable and professionally excellent, of people wishing to keep their specialist skills as good as possible and regretting that they are not being given time to attend to the necessary reading of appellate judgments – and all of that of course is consistent with the first words of the staff’s communication about specialisation:

everything good about our roles at SSOU is the specialisation.

I do not need to go on – they make that point vehemently and, in our submission, touchingly. The same can be seen at 1102 – small numbering 10 – under the heading “Staff vs instructing”. Halfway down that paragraph there is a complaint expressed, with respect, respectfully and cogently about workloads – that means excessive workload:

inhibiting specialisation –

expressed in such a way as to make it clear that these are men and women – lawyers – who wish to specialise, and it is not said that it is negligent to have a specialist Serious Sexual Offences Unit. One sees the immediate concern, the voicing of…..difficulties in relation to prospects for promotion and other professional fulfilment illustrated in this…..

KIEFEL CJ: Mr Walker, you are moving a little bit away from your microphone, I think, as you are leaning forward to read, and so we are not hearing you quite as clearly as we would like.

MR WALKER: I do apologise, your Honours. I will try not to do anything differently from normal and hope that normal is audible. At the foot of 1103, small numbering 11, under the heading of “Approachability of Management”, there is the fear expressed of being:

overlooked for promotions and be seen in a negative light for voicing concerns.

These are matters which simply cannot be put to one side as being, as it were, removed from the sensitivity of confidential and non‑compulsory counselling of a kind which is at the heart of what we accept the duty of care would require in an appropriate case, but it provides a challenge, obviously, for a plaintiff intending to prove, on the balance of probabilities, what they would have done. Your Honours see the closing paragraph at 1105, small numbering 13, starting “On the whole”, where the “not coping”, the problem, is not:

the challenges of sex offence files –

to quote from the letter, but rather:

the amount of work –

and the hours outside what I would call civilised work hours that it was plain people were doing. That is what culminates in the statement that some of them found:

being in court everyday is wearing them down –

and I interpolate, not surprisingly:

they fear that they will soon ‘slip up’ or miss something.

Again, the same comment is appropriate. That is very far from, as it were, a background that ought to have primed their managers to the notion that these are specialist solicitors who are not able to do the specialist work that they are required to do. They are complaining, rather, that they are being asked to do too much of it in the time reasonably available.

Your Honours, I then will touch briefly on the email exchange which is, as my friend says, dubbed the sentinel event about which the appeal revolves, at 1109 of the same volume 4 of the respondent’s further materials, or numbering 17. My friend has already taken you to some important matters there. In our submission, one of the most important aspects of that exchange is that there is no sign of refutation by the manager – whose first name is Steven – of the assertions by the plaintiff concerning her capacity to do the work, that she was, in fact, doing her work and attending to her files. Thus, for example, in the middle of 1112, just before the…..there is a reference to praise for:

“not dropping the ball despite all going on in my life” ‑

which is plainly in context to be understood as a reference to personal stressors rather than work having produced PTSD. It is in that context, in our submission, that there is such moment to be seen in the vehement protest in the context of a concern by her manager that her workload was doing her no good – not in terms of causing mental illness, but that she was not dealing with it as would be desirable from her point of view.

At the foot of 1112, the manager – having raised the very question which would be raised had there been successful screening, appropriate diagnosis, and advice about the removal of the cause of the illness – namely, no longer be in the unit – that very question was, in fact, raised, actually, now, true, not in the context which included performance of what, ex hypothesi, would have been different had there not been negligence.

But the very question of no longer being in the unit is raised – and your Honours are familiar with the vehement rejection of that and, in particular, as at that date, the clear, unmistakable preference to be able to continue to work in the area that she was obviously so enthusiastic about that she had applied, and successfully, for a promotion, as your Honours are aware.

GAGELER J: Mr Walker, that, of course, is the factual world in which she knows nothing about her PTSD. In the counterfactual world, she has screening and it reveals that she has PTSD and that it is related to her work. Why should anything be drawn from that aspect of the factual world?

MR WALKER: Yes. Well, the beginning of my answer is of course it is relevant, but I have to accept - this is the very point of the distinction between actual and counterfactual – that what happened actually is it need hardly be said never a demonstration of what would have happened counterfactually. I accept that. There are rare cases, as your Honours are familiar, where logically that will in fact happen, but they rarely get to court because of that logic.

Ours is a case, we submit, that because an individual’s, that is, the plaintiff’s volition involved both in the actual and the counterfactual, it is never irrelevant to consider what the plaintiff actually did in circumstances which were not completely remote from the counterfactual. I say that because she was after all actually asked to consider whether she should continue working in the unit, bearing in mind the difficulties the manager perceived, not so much with whether she was able to do the work, but with the difficulties it seemed to raise, particularly given her personal life stressors.

But Justice Gageler’s question, with respect, requires me to go this bit further. It is for those reasons that I may be able to persuade your Honours that this is material that has to be taken into account but, as I have said, I accept of course it cannot possibly conclude the issue. It simply goes into the balance and, in particular, I accept that the material which both sides relied upon otherwise in the material to establish the balance of probabilities for the counterfactual was also all relevant, in particular the expert experience of the witness whose evidence dominates this part of the case, understandably, his evidence concerning it being more common than not for persons to heed advice given to them about the cause of a diagnosed serious illness and the means by which that cause could be either mitigated or removed.

Of course, as your Honours know, that was in effect the reasoning of the trial judge and it is, without me dwelling on it, the basis of our learned friend’s pithy argument concerning the correctness of that approach by the trial judge and hence the incorrectness of its reversal on the appeal by way of rehearing.

If the question, as we would see it, by Justice Gageler, requires me to go further into the question as to how can material such as that I have just drawn to attention prevail against the professional opinion, what might be called the inherent likelihoods, the, as it were, informed or insightful self‑interest that my learned friend refers to, then of course I accept that is a matter of fact finding in an appeal by way of rehearing, to which our proposition 5 is directed.

It is, I think, as simple as saying your Honours are either persuaded that in the Court of Appeal error was committed by reversing the trial outcome on that probabilistic question of the hypothetical counterfactual, or not. But certainly, you cannot put that kind of material to one side.

We know that in the absence of diagnosis and advice, that is, in the absence of that which desirably would have been sought by her, probably would have been sought by her, and would have produced on the balance of probabilities, a diagnosis, the question still arose, would she have acted upon advice to step away from this work altogether, that being, as we submit, on the findings in which her continuing harm could be avoided.

In that regard may I remind your Honours of how our friends put it in my friend’s outline proposition 8(a), where they start by being intent on saying that the Court of Appeal had overlooked that the appellant’s case:

was not that rotation was the only option available -

That rather depends upon a special meaning of the word “available”, because if one goes on:

the expert evidence upon which she relied was that what was required –

that means to avoid the harm:

was to modify work exposure to the traumatic material -

and that modification is by rotation out. Now, it is for those reasons ‑ ‑ ‑

STEWARD J: Mr Walker, I am so sorry. Were there any findings made by the primary judge, or was there any evidence relating to Mr Brown’s understanding of why the appellant was sick for two weeks and had left that trial as instructing solicitor quite suddenly?

MR WALKER: I will just get that turned up, but could I meantime remind your Honours, at 1122, in the email of 9 February 2012 there is a recapitulation of that so‑called incident and, in my submission, that is evidence of the fact that the manager was aware, in at least those general terms, of why she had been away.

I do not think it is possible on the evidence for either side to say that the manager had been informed by the plaintiff or, for that matter, that the manager could have been able, let alone had been able, to infer from other information that it was in effect PTSD that was keeping her from work.

There is a finding, in further answer to Justice Steward, at page 192 of the core appeal book, paragraph 586 of the trial reasons, which rather compresses the occurrence:

some sick leave . . . came back and you had a discussion –

and that is where you see the perhaps telling observation by the manager:

I would never enquire as to the reasons. It’s, ah, confidential . . .
Counsel: And when she came back she had a meeting –

Then counsel asks about either what was conveyed or had been observed in relation to her ability to keep working and that is then the answer by the manager concerning “difficulties with her personal life”, et cetera, and the “physical sorts of health issues”, an iron deficiency referred to in the other document, which I was encapsulating, your Honours, in the expression “personal stressors”.

It is that which, in our submission, means that there was already in existence circumstances which, in our submission, support the conclusion that the Court of Appeal came to concerning what she would or would not have done on the balance of probabilities had dealings with management - not just with that manager – dealings with management been in accordance with what the court had held was required by the duty of care.

GAGELER J: Mr Walker, can I just ask a question about the course of the trial. The plaintiff gave evidence. Was it put to her in cross‑examination that if she knew she had PTSD on or about 29 August and it was making her sick to stay in the job, that she would have still insisted on staying in the job?

MR WALKER: No, is the short answer. There is a reference to this, not in terribly detailed terms, by the Court of Appeal at 326 of the book, their Honours, at paragraph 104, and to quote:

No such evidence was elicited from the plaintiff in this case -

unquote, and your Honours can take it that that means, either in‑chief or in cross‑examination. Now, as I think my learned friend said earlier in response to one of your Honours, obviously enough it is a well‑worn trait that self‑interested hypothetical evidence by a plaintiff may lack weight, and your Honours are aware that there have even been law reform legislative responses to that position in some jurisdictions. Cross‑examination, as Justice Gageler put to me, was it put to the plaintiff, cross‑examination is a different kettle of fish. However, one does not have, in the course of this trial, what Justice Gageler has asked me about.

Now, that means I take my stand on where the onus laid, which was on the plaintiff, of course. True, it was on the appellant in terms of reversing the decision but, in our submission, the appellate question for the court in the appeal by way of rehearing was, is this evidence upon which the plaintiff can discharge their onus of proof with respect to the causation mediated through the necessary act of volition on her part to co‑operate?

Your Honours, I suspect, have both read and heard enough from me on this part of the case, but I can shorten what might otherwise have been our elaboration of our proposition 5, but I do not mean by that to dim the importance of the matter. I accept entirely that, in a sense, that is the whole of the appeal. May I just flag, by way of emphasis, what we have already written in our written submissions on this point.

This is not, what might be called, a “naïve”, in the sense of psychologically naïve plaintiff. She was, at the relevant time, consulting with Mr Foenander. She was at that time, as we point out in proposition 5(a) – I do not need to take you to the findings – advising him, among other things, that work‑related stressors were contributing to her – I will call it, as the finding does, “poor mental health”.

We have, at the same time – notwithstanding such an awareness by her of work‑related stressors being part of the reason why she was consulting, at her volition, a psychologist - we have, at the same time, an application for promotion. We accept entirely that our learned friend says to that, but that is the whole point, she so lacked insight that she was seeking to continue the exposure which had brought her to the position of herself – for reasons she obviously did not fully understand to the help of a clinical psychologist.

But, our answer is – but in assessing factually on the counterfactual hypothesis what somebody in her position with her enthusiasm and dedication would have done had she been apprised by a non‑negligent performance of the employer’s duty of the matters in question nonetheless, still involves, as the process would have involved, room for her own decision not to leave this work that she was so enthusiastic about so as to have sought a promotion, for example. I have already dealt with proposition 5.

GORDON J: Mr Walker, you accept, do you not, that the promotion that was sought was a promotion within the OPP as well? In other words, it was an alternative – it was promotion within the unit or within the principal prosecution section.

MR WALKER: Yes, but it is clear that it was promotion within the unit that she was enthusiastic about, hence her protests to her manager in the emails that I do not need to go to in any further detail. She complains that she – wanting promotion so as to continue work within the unit. I suppose my proper answer to Justice Gordon must include this. We do not understand it has ever been put that the actual state of affairs in August 2011 included the plaintiff having become reconciled to work for the OPP, outside the SSOU, if you will forgive the initials and our proposition (d) I do not need to elaborate on further – from the outline.

The “generalised evidence”, as we call it in 5(e), which is evidence by the expert concerning what the majority of people in his experience do, of course, cannot be seen as standing in for proof on the balance of probabilities and, let me make it clear, we do not hear or read our friends arguing that proposition.

The question to be determined, on the balance of probabilities, is in which class would the plaintiff have been in - the class that accepts the advice and steps back from such work, or the class that does not because the fact that there are two such classes – if not more, of course – but yes, or no, is a basic element in that part of the evidence. If I could take your Honours in volume 2 – excuse me, your Honours ‑ ‑

GORDON J: I am sorry, Mr Walker, I did not hear that reference. Would you mind giving it to me again, I apologise.

MR WALKER: It is because I did not complete it, your Honour, I am sorry. It is the big numbers and the little numbers - could I start at – in volume 2 of the respondent’s further materials, the large numbering at the top, 554, the court’s numbering 102 and following, Professor McFarlane, at the foot of that first page of outline 22, is being asked about people – is describing people being:

often extremely reluctant to give up that professional role despite the cost to them.

So that was at the heart of what he could talk about. He was not in a position, of course, to give evidence as an expert concerning what, in his opinion, the plaintiff would have done - that was for the judge, but the judge obviously had been informed by his unchallenged evidence in this regard.

He goes on to talk about screenings as indicating “something awry” and the questioner asks about the employer being required to go and see a health specialist. We know that the case, in fact, as argued, certainly in the Court of Appeal, did not involve any contractual or other source of power to force somebody to do so, but in any event, the matter is taken up by the witness as saying:

the assessments would be a mental health specialist.

That only makes more obvious that this was not compelled medical treatment, and then the questioner, counsel:

the person doing the specialist would then inform the employer of their findings?

Of course, the questioner was utterly at odds with the expert witness, who says, if I may paraphrase, somewhat informally, well you might be able to do that in the army, but not otherwise. At about line 7 on that next page:

in this sort of workplace, because of privacy issues, ah, it would not be possible to directly inform the employer. But what you would have to do would be to have a conversation with the employee and remind them of the circumstances and policies and the consequences . . . I have, you know, had the situation myself –

been consulted by people who, it would appear, by implication, are not in the position of defence personnel, and at the foot of that page, there is a contrast drawn, I think, with respect to the access that police superiors have, and then, not unreasonably, the witness asks counsel questioning about what the legal provisions would be, and then, at large numbering 556, about lines 10 and following, a disagreement with the cross‑examiner about whether it would be:

very problematic –

without legal power. The answer then comes, upon which much reliance is placed:

as a psychiatrist who has dealt with many people in these environments, um, I – a very significant majority of people . . . I’m able to assess them and spend time to explain to them the nature of what’s happening and to really give them the context and the consequences and the circumstances of their continued employment in that role, they will take that advice.

Then the point concerning it not being compelled is rammed home surely by the next answer to that most pressing of questions:

Okay?

The answer is:

at least the point is the person that is then informed consent. That person can then make a decision of their own accord.

Similarly, one will see in the middle of the next…..line 13, again, a reference to:

appropriate information . . . offered the available interventions, a significant percentage . . .
take that advice –

GORDON J: Mr Walker, in the counterfactual, why would we not take into that counterfactual that this plaintiff would not react like the significant majority?

MR WALKER: You cannot possibly leave out of the count the expert observation of lots of people. If your Honour is asking me, as it were, to give up the appeal and say that is the end, that that expert opinion is the end of the matter on the capacity correctly for the Court of Appeal to have reversed that result, then of course I will not. But, of course, your Honours, that is a very important consideration which, in our submission, obviously enough was taken into account in both courts below.

Our task is to persuade your Honours that no error is shown by the Court of Appeal preferring to see, given the circumstances which are so striking of the decision‑making at the end of August, albeit without what the law of negligence would have called for in order for there to be breach. That was a very striking passage where, notwithstanding access to a psychologist, notwithstanding the fraught position concerning her discontent with being thought inadequate in her role – and no one has said she was inadequate in her role – she was so vehement that she wanted promotion, she wanted to keep working within that office.

EDELMAN J: Mr Walker, although this case was not argued as one where in the counterfactual the employer may have had a duty to insist upon a rotation, one would still consider the extent, again on the assumption that there is a breach of duty proved, of the employer’s obligation to do everything they could to encourage the employee to rotate out, particularly where on the counterfactual that is the information about which the employer is aware.

MR WALKER: Yes, I am bound to point out, using the words of the evidence used in another but related context, it would not be good enough to engage in desultory notification of the possibility of saving yourself from continued terrible PTSD and depression. I agree. With respect, it must be so that the ordinary calculus, if I can still use that expression, of the expedience called for by the circumstances in which there has been held to have been a breach, and when one then looks at the hypothetical to ask what would have happened had there been no breach, necessarily involves building into that imagined scenario – I should not say “imagined” - inferred scenario, building into that a proper discharge of the duty by the real achievement of a reasonable standard of care.

I accept, as one would think everybody in the State of Victoria’s position, as one hopes a model litigant and certainly a decent employer would have to accept, that you could not, as it were, discharge your duty by saying, “Well, of course if you want to you could leave”, but in the same breath saying, “But I hope you don’t because I really want you to stay”, for example.

We do not for a moment submit – or accept, I should say – that the same reasoning would mean that you would be in breach unless you said, “I cannot force you to stay, but I am telling you that this could be life and death, I really won’t countenance you staying on unless you go away and think about it and get more advice”, et cetera, et cetera. Somewhere between our two extremes there would no doubt be the goldilocks achievement of a reasonable standard of care.

EDELMAN J: Mr Walker, why is it between those two extremes? Why are we not in the counterfactual very close to, if not at, the extreme where the employer needs to do almost everything they can – short of forcing rotation. If one were to consider the circumstances as ones of physical harm rather than psychological harm, would it ever be possible to make the submission that a person that was unable to wear safety goggles in the welding could be told, “Well, it is for you to make the choice, but I think you are exposing yourself to the danger of physical harm”.

MR WALKER: No, your Honour, no. As to the first part of your Honour’s question, probably yes, depending upon the dire consequences of the mental disease in question, and we accept that these are serious mental diseases. So, I think the answer then is yes and no.

Could I finally, with respect to the expert evidence, remind your Honours of what is found at large 559 in the same book, small 107, where the epidemiological observation was of a long period of time between onset of PTSD and seeking treatment – eight years, alarmingly. So that is about what most people – most people only seeking care, et cetera.

Now, it may well be that what the witness calls at line 19 “secondary prevention”, is the offer of screening the desirably accurate diagnosis upon screening and then the advice that he had spoken about in the earlier passage to which I drew attention, means that the most people spoken of here are not the same people of whom a very significant majority accept his advice.

Nonetheless, it does, in our submission, provide some background cogency to the proposition it is never as simple as saying that informed, insightful self‑interest means no rational person would decide not to step away from this kind of work because the observation obviously is that some people do not and it would be, in our submission, inappropriate to brand them as being thereby irrational.

However, nothing in that last proposition is intended to detract from what I have accepted in answer to Justice Edelman. It is not as if we are putting something about, for example, the acceptability of a defendant employer shrugging shoulders at the notion of somebody taking the risk of sparks or metal fragments being driven into their eyes without precautions. It is not in that manner that we argue this point. We are talking about an act of volition, which, in our submission, is quite different from a rule – which would be a rule in such a workshop - that you have to wear eye protection, or you cannot go into the area.

We are talking about a rather different circumstance where neither the case, as it was run, nor, probably, the operation of industrial relations in a professional would permit the existence of such a rule. In any event, this is not – as Justice Edelman earlier pointed out – a case where there was a contractual rule imposed at the outset by agreement.

GORDON J: Mr Walker, can I just ask about that aspect? This is my last question. In the respondent’s further materials, we have the Victorian public service conditions which attach to the contract. Are they of any significance on your case?

MR WALKER: No.

GORDON J: The reason why I ask is that at least two clauses of them address what might be said to be related to obligations – at least upon the employer – in the context of the matters raised by Justice Edelman.

MR WALKER: Yes, certainly accept that. Why I say no, in particular – if your Honours just forgive me ‑ ‑ ‑

GORDON J: I can give you the reference if it helps, Mr Walker.

MR WALKER: I am sorry, your Honour, I have the marks on there ‑ ‑ ‑

GORDON J: It is in volume 4, I think.

MR WALKER: Thank you. The passage I had in mind, your Honours, is in volume 4 of our further materials, starting at large numbering 1304, court’s numbering 212, section 61, “Occupational Health and Safety Rehabilitation” where there are in, regrettably familiar form, extremely general and aspirational statements in 61.1.1 and 61.1.2 that are the reason why ultimately we say, no, there is not much to be got from this document.

In particular, there has been no – let me go back one. When it came to the tender of this document, some kind of truth was reached between counsel – mediated by the judge – by which only those parts said to be relevant from a 250-page document were tendered – as so often happens – after the event. At the appellate level, one wishes that time and money had been saved by tendering the whole.

In any event, my point is this. There was no analysis, let alone in contractual binding terms, of anything that fell out from this Public Service Agreement so as to inform either what is now the question – we say it is not an issue – the question whether the employer had the right to compel redeployment – that is, rotation out – or, any other aspect such as the obviously interesting question as to whether screening could be compelled – if not, redeployment. No light is cast on any of that by the obviously very general provisions.

This is an agreement, of course, which has an industrial association as a party and cannot be seen as simply a build‑in – an incorporation into the employment contract. On the other hand, it has an effect according to the industrial law of the State – none of which seems to have played any role in ascertaining either what should have been done by the employer – as to scope or content or standard of care, that is breach – or what might have been done by the plaintiff, that is, whether she could have been given an enforceable direction to stop working in the unit. I have to say that seems not to have been an issue.

Your Honours, that is my first response with respect to that agreement. But, Justice Gordon, I think you said that there were some passages that you wanted me to consider.

GORDON J: No, I think that is right, Mr Walker. It was 61.2 and there was 11.2, I think, was the other one. One of the reasons why I asked is because of the one sentence which I understand you still rely upon in 106 of the Court of Appeal’s judgment, that it was not:

precluded by the terms of the plaintiff’s contract of employment with the defendant‑

in the context of the questions that Justice Edelman was asking.

MR WALKER: Yes. With respect, I accept that that is raised. As to the passage at large numbering 1301, court’s numbering 209, namely 11.2, it is, with respect, frustratingly without any contrary consequence. There is a recognition by the employer that:

the allocation of work must include consideration of –

amongst other things:

the Employee’s hours of work, health, safety and welfare.

Unfortunately, that does not…..in any event. Let me make it crystal clear, of course we accept that must be so.

Your Honours, I do not need to add – bearing in mind what I have already said in response to our learned friend’s address and to questions addressed to him by your Honours – through my propositions 6 and 7 in our outline – which brings me to the notice of contention concerning which I intend to be brief because of what we have written about it.

Now, the nature of the contention is of course the mirror image of what our friend does on the appeal. I need to persuade your Honours that in the Court of Appeal error was committed by their Honours not overturning the finding concerning the so‑called sentinel event of the end of August 2011.

We accept – I hope without needing to rehearse in detail – the nature of that burden of persuasion in this Court being a matter which involves consideration of what a real review by the Court of Appeal should have produced. Your Honours will have noted, of course - - -

GLEESON J: Mr Walker, this needs to be considered in the context of concurrent findings of fact, though, does it not?

MR WALKER: Absolutely, your Honour anticipates me. Yes, absolutely. I was about to try and temper that point in this fashion, by pointing out the irony that the same Court of Appeal that my learned friend has earnestly argued did not engage in a real review, the tables are turned when it comes to this.

In our submission, the way in which the court was an appropriate holistic way of attending to plainly relevant matters, not in an atomised fashion, but in order to form the overall impression as to the balance of probabilities and – sorry, let me start again. What the Court of Appeal did with respect to the appeal was as I have just described, but when it came to their 13 matters with respect to the contention, viewed holistically, the different conclusion should be drawn.

Can I take you to those 13, both one by one, and separately, and for this purpose, your Honours need to go to paragraph 187 in the Court of Appeal’s reasons, where their Honours are attending to her Honour’s findings ‑ ‑ ‑

KIEFEL CJ: Which paragraph was that, Mr Walker?

MR WALKER: I am sorry, it is 311 of the book, 74 of the reasons, where their Honours go through the:

13 ‘evident signs’ –

and can I jump ahead, at 76 with respect to the argument in the Court of Appeal, conceding, as it were, or offering only that the points made were:

not entirely without substance -

and in 76, the second sentence, venturing a criticism, methodological, so to speak, of what might be called a wrong atomistic approach, we accept that an atomistic approach would be wrong, but of course, you can only deal with a list that ultimately has to be considered holistically one by one, and then pull it all together. Their Honours said, in the last sentence of 76:

the correct approach . . . was to analyse and consider all of those matters in combination, rather than in a piecemeal manner.

We accept as a matter of method that if our contention argument falls into the error of proceeding piecemeal, what I call atomistic, then it ought to be considered defective as a matter of method regardless of what that might produce with respect to outcome. However, we, with respect, decidedly resist the proposition that going through a list which, after all, is the judge’s list, is the wrong way in which to deal with the conclusion drawn overall and in combination by the trial judge of those listed matters.

It is for those reasons that when one comes to the way in which our submissions were put, recorded in paragraph 75 of the appellate reasons, starting at the core appeal book 313, there is, in our submission, substance in each one of those, I will call them “criticisms” of the inferential support sought in favour of a sentinel event having occurred by those items seen in combination.

You can only see them in combination if their qualities individually can be appreciated first. One does not add zero and zero to produce two. It is for those reasons, in our submission, that those arguments which are then set out (a) to (m) - and we make no complaint about the paraphrase of our submissions below in this regard – are, in our submission, reasons which amount to the unreasonableness of holding that, through their managers or the particular manager, the State in the OPP had failed to see what should have been seen in an office which of its very nature in that unit dealt with work that both had to be done and would necessarily have an effect by way of so‑called vicarious trauma, because it has to be observed that this is not a case that says the State negligently inflicted vicarious trauma on the employees of this unit. It was in the nature of the job that there would be vicarious trauma.

The sentinel event is not that which shows what is accepted - the suffering of vicarious trauma. The sentinel event is something more serious and not inevitable, namely the development of that into serious disease. It is for those reasons, in our submission, that when one comes to 77 and the Court of Appeal reasons at the foot of 315, there is error of a kind where their Honours have not disentangled, in our submission, the well‑known and understood and proper suffering of vicarious trauma. These cases have to be prosecuted. You cannot do that blindfold at all - the sentinel event of the imminent onset, indeed perhaps achieved onset of disease. So, in 77 their Honours do say:

It is self‑evident that cases . . . invariably involve a degree of stress –

Well, it is more than that. It is, to give it the technical expression, vicarious trauma. Then there is a reference to material which, in terms of a sentinel event of PTSD, is about caseload. That seems to be the number of files, the number of attendances, and the number of hours in the day – not specifically with respect to the nature of the exposures – bringing vicarious trauma and producing PTSD. The next sentence deals with that:

the content of the work became more confronting –

and there is a reference then to what is a case allocation question, within the unit, that is, without being rotated out of it, the difference between child sex and adult sex. However, the plaintiff’s case did not, with respect, contain any, what might be called, calibrated view of a breach in terms of failing to detect a sentinel event by reference to the distribution of cases between those involving children and those not. Time limits are then referred to, and their Honours tie that together by saying there is:

little opportunity for the plaintiff to gain relief from the stresses of her work by stepping back -

That, in our submission, does not in itself inform why it was, on the balance of probabilities, appropriate to regard the defendant as having been put on notice by the so‑called sentinel event, so as to bring into play matters which, without appreciation of the so‑called sign, or trigger, or sentinel event would not be a breach of the duty of care.

In 78 their Honours, in our submission, wrongly pick out from the 2011 staff memorandum to which I have taken your Honours, the notion that the:

prosecuting sex offences can of itself elevate stress levels’.

Well, yes, but that does not mean that there has been a sign, or trigger, or sentinel event with respect to the plaintiff herself. Everyone in the office has that. The fact that the memorandum spoke generically about generic officers experiencing such symptoms as are there referred to, says nothing about the occurrence of a sentinel event having been sufficiently raised that the defendant through its relevant officers should have noticed it.

In 79 and following, in our submission, their Honours are in each case, and I will not go through each of the paragraphs, they continue through to 83, in each of those paragraphs, in our submission, there is a failure by the Court of Appeal to indicate what it was in the primary findings by the judge which would produce the conclusion that here there was a sentinel event for PTSD, not for vicarious trauma – everyone was suffering vicarious trauma.

In 80, their Honours, during the course of the same passage of reasoning, refer to that about which some of your Honours have already asked me questions:

It might have been expected that the plaintiff might have resisted, and indeed resented, a suggestion that she was not coping with the workload at that time.

I have drawn to attention that is really not quite how it fell out. There were the personal stressors apparent to the manager. It is not suggested he was wrong to perceive there were personal stressors, but that scarcely, with respect, amounts to a sentinel event for vicarious trauma being such as to produce PTSD.

It is said simply by the Court of Appeal that that ought to have put the manager or managers on notice that the plaintiff was suffering genuine emotional distress. With respect, that is not the question when it comes to putting into action that which was not routine for everyone in the unit. The case was not run on the basis that everyone in the unit, whether they were displaying signs or not, needed, as it were, to be monitored by periodic screening. One might imagine an employment contract to that effect, but that was not this case, and it was not the case in negligence. For those reasons, when their Honours conclude in paragraph 80 that:

it was reasonably open to the judge to conclude that . . . the defendant knew, or ought to have known, that the plaintiff’s mental health was at risk –

it comes down simply to the genuine emotional distress which is the very vicarious trauma phenomenon that was regarded as inevitable with respect to anybody viewing such horrible material, hearing such horrible events, and dealing with such vulnerable and damaged individuals, particularly children.

Because the case was not run, because the contract does not involve the notion that everyone with such exposure needed to have precautionary screening, counselling, et cetera, the sentinel event in question here had to

signal mental health caused by something within the reasonable control of the employer, conditions of employment is the obvious one.

That is what, with respect, the trial judge erred in finding and in turn the Court of Appeal erred in not detecting error. In neither court are circumstances identified which make one inference more likely than the other and the placement of onus with respect to the making out of the triggering of the occasion to act lest you be in breach is unequivocally on the plaintiff. The persuasive burden was on us in the Court of Appeal, but it concerned whether or not the material had properly persuaded the trial judge of a matter upon which the plaintiff of course bore the onus.

Your Honours, just a small point – I should not put it that way – a detail concerning a question Justice Gordon asked me about whether I accepted that the position applied for in August 2011 was in the OPP. It was for a position in the SSOU, as opposed to the OPP generally. Alas the exhibit upon the basis of which I am so instructed is not in the further materials – we have not understood and perhaps still do not understand that is in question between the parties – but may I inquire of the Chief Justice as to whether it would be appropriate or not for us to provide that exhibit - - -

KIEFEL CJ: Yes, if you would, thank you, Mr Walker.

MR WALKER: May it please the Court, those are my submissions.

KIEFEL CJ: Mr Rush, do you have anything by way of general reply before Mr Dinelli speaks?

MR RUSH: No, your Honour.

KIEFEL CJ: Yes, Mr Dinelli.

MR DINELLI: Thank you. May it please the Court. I will deal first with the notice of contention. The appellant contends that the application of the law to the facts by each of the trial judge and the Court of Appeal was both unremarkable and orthodox. The appellant respectfully adopts the reasoning of the Court of Appeal at paragraphs 69 to 84 and refers to its written submissions in reply at paragraphs 6 to 14.

The issue, as joined between the parties in this Court, is whether the relevant date ought be August 2011 or February 2012. When referring to the relevant date, that is a choice as to which of those is the relevant date that required consideration as to when reasonable foreseeability of psychiatric risks arose.

As to that, as your Honours have heard, that raises questions as to evident signs. As the Court would appreciate, this case – and the trial before Justice Jane Dixon proceeded on the basis of the need for, and consideration of, evident signs by reason of what was said by this Court in Koehler.

It may be that one might say however, given the nature of the work in this case, it simply ought be that there was a duty to provide a safe system of work and, indeed, it might be said that there would be logical coherence in the law of negligence - that duty arose earlier – did not rely on evident sign so as to bring that coherence with personal injury, but that we respectfully say is - - -

KIEFEL CJ: Mr Dinelli, that may be the case, but I had understood from Mr Rush that it was accepted that that was not the way in which the matter was pleaded or proceeded.

MR DINELLI: No, the matter proceededon the basis, your Honour, of the need for evident signs. The observation is simply that it may be that in a case such as this, those evident signs impose a significantly lower threshold given the nature of the work and, in particular, the traumatic nature of the work engaged in by the appellant in this case, and her colleagues.

In Koehler, there had been no evident signs. Here, on the other hand, the factual circumstances are, we say, fairly described as being worlds apart. Koehler concerned, of course, a part‑time merchandising representative. It was reasonable, in that case, that an employer would need to be put fairly, clearly, on notice in order to be able to say that they should have expected that psychiatric injury may occur as a result of the work performed.

Here, the case that was run by the appellant was one that did rely, as your Honour the Chief Justice has asked, in relation to evident signs. Indeed, it was put in closing at trial that the opportunity to intervene presented itself after the April 2011 memorandum or at the time of the 10 June submission – what is referred to as the business case – after the 29 August 2011 emails – or, even alternatively, by reason of the observations made by the plaintiff throughout 2010 and 2011. But none of that need trouble this Court. The choice is, as I have indicated, between August 2011 and February 2012.

Critically, we say in response to that which our learned friend, Mr Walker, has submitted to this Court that there were 13 evident signs and that those signs were plainly both qualitatively and quantitatively different from those that the Court encountered in Koehler and that the Court by reason of the events both preceding and on 29 August correctly – that is to say, the trial judge and the Court of Appeal correctly identified that date as the sentinel date, and it did so by reference to the 13 signs set out at paragraph 578.

It is necessary to refer to one further paragraph which appears after that discussion of the 13 evident signs, and if I may take the Court to paragraph 620, there her Honour the trial judge said:

Turning now to the plaintiff’s notification of risk in this case, the starting point is that the plaintiff attended the staff meeting (held in the absence of management) and signed the 2011 Staff Memo –

a matter dealt with by my learned leader, Mr Rush:

which expressly notified the defendant of ongoing health and well‑being impacts experienced by SSOU staff. Whilst the memo did prompt the May email to staff from management, offering some steps to reduce workload within the unit and referring to preparation of the Business Case, the plaintiff gave evidence that nothing was done to ease her workload. She was still required to take on the Lim trial despite her attempts to resist it.

And, this is a passage that the Court has already been taken to:

The memo is an unusual feature of the foreseeability analysis, and provides a distinct point of contrast with earlier authorities. It is evidence that the system previously in place at the SSOU was defective in notifying management that staff were experiencing adverse health effects. Whilst it represents a collective request for management to respond to employee concerns, the evidence that the plaintiff and other staff members put their signature to it means that it cannot be discounted as relevant notification regarding those individuals.

It is plain – and we adopt of course what was said there by the trial judge – that that was and constituted and was one of the relevant evident signs.

The Court of Appeal, and my learned friend, Mr Walker, has taken the Court to the relevant passages, but we seek only to emphasise and identify for the Court two paragraphs. The first is in the Court of Appeal’s reasons at 77, and without reading it to the Court, it is there that there is identification of the nature of the work in the relevant department and the degree of stress involved, but then over the page, the Court of Appeal observed that it was in the:

context that the thirteen factors, identified by the judge, were relevant.

Skipping ahead, and reading from, briefly, paragraph 79, referring to the first of the eight matters – the third line of paragraph 79:

They were each matters of which the defendant was aware at the time at which the plaintiff became embroiled in the very fraught disagreement she had with Mr Brown at the end of August 2011. In other words, the highly emotional reaction by the plaintiff to her meeting with Mr Brown on 29 August did not occur in isolation or ‘out of the blue’.

We pause there to emphasise that that is important to the analysis of what was evident at the time:

Rather, it occurred in the context of matters discussed by the judge relevant to the plaintiff, and in the context of the nature, content and volume of the workload that she was bearing. The emails sent by the plaintiff on 29 August – which the judge aptly described as being ‘long, detailed and charged with emotion’ – in that context, would fairly be viewed as a clear indication, which should have been taken as a warning sign to the defendant, that all was not well with the plaintiff’s emotional state –

Then, in paragraph 80, third line:

the histrionic nature and loaded tone of her reaction to Mr Brown’s remark to that effect was such that it was open to the judge to consider that, in the context of the events that had preceded it, the plaintiff’s email, and her responses at that time, constituted a ‘sentinel event’ which ought to have put the defendant on notice that the plaintiff was suffering genuine emotional distress as a result of the nature and content of her work. Accordingly, notwithstanding the submissions made on behalf of the defendant –

those which are repeated here in this Court:

it was reasonably open to the judge to conclude that, by the end of August 2011, the defendant knew, or ought to have known, that the plaintiff’s mental health was at risk arising from the nature of her work that she was performing in the SSOU.

It is that, we say, your Honours, that dealt with each of those matters, and it seems to be put against us by our learned friend that collectively those matters were not enough to raise the – having regard to what was said in Koehler – necessary evident signs. We ask, perhaps rhetorically, what more could have been?

We further identify and emphasise that the signs that were observed there by the respondent related to and were inextricably linked with her employment by reason of what the respondent knew as to the risk of psychiatric injury and the vicarious trauma, not only for SSOU staff generally, but relevantly, this employee.

It is for that reason that we say in response to that which has been raised in writing against us that this is not a case where the evident signs or red flags, such as they were – sorry, I will withdraw that – this is a case where the evident signs or red flags were so obvious that the question of regard for human dignity, autonomy and the privacy of an employee simply do not arise. Indeed, as to that we would point your Honours to paragraph 676 of the trial judge’s reasons which emphasise and we would respectfully adopt, that:

Whilst Hegarty underlines the dignity of employees and their need to be free of harassment, a system of work that openly acknowledged the risks attached to the work and offered welfare inquiries or screening would actually uphold the dignity of the employee by ensuring proper supervision of their work and thereby preventing workplace injury.

Further, and to that end we would endorse what was said in intermediate appellate authority, including in Briggs by Justice McCall, that courts generally and we would say in this Court, ought not be timid in any way so as to ensure the need to ameliorate that risk.

Now, it seems to be put – it is put in the outline by our learned friend, that the interaction with Mr Brown on 29 August, viewed from the perspective of a reasonable non‑expert, did not demonstrate the relevant signs. This was contrasted with the fact that the appellant, with the assistance of a psychologist, had not recognised the effect of her work until late 2011 or 2012.

We simply say in relation - we make two points in response to that. The first is that the terms of the email, the way they were described by the trial judge made plain that indeed they did demonstrate those signs. Secondly, we say that insofar as it is said that, with the assistance of a psychologist, the appellant had not recognised the effect of her work, we refer, without going to, paragraphs 649, 726 and 730 of the trial judge’s reasons, all of which make the point that at that time Mr Foenander did not know of the extent of the trauma suffered by the appellant.

Beyond those matters, we seek to rely on what we say in writing in our reply in relation to the notice of contention. With the Court’s leave, having asked my learned leader about any matters in reply, I was minded to deal with a handful of matters in reply in relation to the points the subject of the notice of appeal.

KIEFEL CJ: Yes, Mr Dinelli.

MR DINELLI: Thank you, your Honour. There are eight points, all of which can be dealt with very briefly. The first is our learned friend, Mr Walker, made submissions as to McLean v Tedman. We say, in its application here, it is indeed simple. The point we make is that once an alternative and safe system of work has been identified, as it was in this case, by identifying one or more of altering work allocation, arranging time out or rotation, it then fell to the employer to demonstrate it was unable to secure compliance with that safe system of work.

At trial, not only did the State not positively put such a case but it did not contend, as it appears the Court of Appeal concluded, that the discharge of its duty was somehow informed by an alleged contractual inability to compel the appellant to rotate to another role.

My learned leader referred in our submissions in‑chief to the way it was put by senior counsel for the defendant – the respondent in this Court – in the last days – or in fact in the last minutes of the trial. At tab 4 of the appellant’s book of further materials, at page 11, there is an exchange where her Honour the trial judge said at line 30:

You say, well, they would have had to move, what, all the signatories to the memo –

and the response was:

Yes. So at least that. Just to - - -

and this is the critical questions, your Honours:

But is there anything to say they couldn’t have done that or that wouldn’t have been open as a step to the OPP to just – is there anything to say that wouldn’t have been open as a step –

that is the say the rotation – to which the response was:

Not explicitly, no. Just the reference to Mr Ballek filling - the constant and understandable issue of filling places and trying to keep things properly resourced. Yes, nobody said you couldn’t move everybody, but Your Honour - - -
HER HONOUR: Move people around, yes, rotate people.

It is now said and, indeed, the respondent places much emphasis on the fact that…..very rotation is not – was not possible or contractually prohibited. That was not the way the case was put at trial, and I refer only by way of repetition to paragraphs 688, 701 and 733 of the trial judge’s judgment, all of which make the point that it was said that nothing was put by the respondent that precluded the relevant rotation.

The second point by way of reply is that – and it fell from a discussion between her Honour Justice Gordon and Mr Walker about the extent of the injury, and it may have been later resolved in discussion, but for completeness we refer the Court, in particular in response to Justice Gordon’s question to paragraph 101 of the Court of Appeal’s judgment referring to the evidence of Professor McFarlane and Dr Dharwadkar:

The judge concluded that, based on the evidence of Professor McFarlane and Dr Dharwadkar, she was satisfied that if action had been taken to reduce the plaintiff’s exposure to vicarious trauma by around the end of August 2011, she would not have suffered PTSD ‘of the same severity and chronicity’. That conclusion was well founded, being based on the evidence of those two witnesses. The defendant did not make any attempt at trial (or indeed on appeal) to disaggregate the degree of PTSD suffered by the plaintiff before August 2011, with the extent to which that condition was exacerbated by her ongoing exposure to trauma between August 2011 and February 2012. Thus, if the judge correctly concluded that if the defendant had taken appropriate steps after August 2011, the plaintiff would not have suffered that exacerbation of PTSD, it would follow that the defendant was liable for damages for the whole of the plaintiff’s condition. That proposition was not in issue –

and ought not be in issue in this Court.

The third point by way of reply is to merely observe and refer the Court to paragraph 386 which identifies that indeed the caseload that the appellant had at the relevant time was indeed an issue and there is reference there to the evidence again of Professor McFarlane about the increase to workload and the increase of the intensity of the trauma that one therefore suffered.

The fourth point is that our learned friend, Mr Walker, went to the April memorandum and of course it is that that resulted in the document entitled “The Business Case” and we rely on that document not only for the purposes of the notice of contention, but also that identified the various issues as to how treatment could be provided or responses could be provided to the appellant.

In answer to - I think it is the fifth of the points that I wish to raise - in answer to Justice Steward’s question about the level of knowledge of Mr Brown of the reason for the appellant being on leave in August 2012, we refer to paragraph 578(f) and (g). Mr Brown was indeed aware that the plaintiff had left work rather suddenly during the trial described as the Lim trial after an episode of dizziness on 12 August 2011 and he was aware that she did not return to work until the relevant day of the sentinel event, 29 August. We also observe that it was during this time that there was the attempted suicide of the child complainant in the Lim case which occurred while the plaintiff was away from work and it was communicated to her during that time.

We also refer, in answer to Justice Steward’s question, to paragraph 590, which demonstrates the response of Mr Brown on 29 August, namely:

Despite the plaintiff having been away on sick leave for two weeks, there was no evidence that Mr Brown or Ms Robinson made any effort to ensure that the plaintiff felt mentally capable of facing the rigours of her demanding job in the SSOU when she returned from sick leave. Mr Brown did not acknowledge to the plaintiff at that time that she had been carrying a heavy and stressful workload when she became unwell. He did not raise with the plaintiff whether the number of files that she was handling or the stressful nature of her trial load might have contributed to her becoming unwell.

I think I indicated to the Court that there were eight points. It is, indeed, seven, and the last two points I wish to make are by reference, briefly, in reply to the issue raised by my learned friend, Mr Walker, as to the issue of whether or not rotation would have been accepted, and we make two further observations. The first is that at paragraph 732 her Honour made very clear the reasons why an appropriate welfare inquiry, having:

been made of the plaintiff when she was showing heightened signs of impaired mental health –

she would have taken up the offer of screening, and in that paragraph, commencing in the third line:

She had previously been outspoken about the personal impacts of SSOU work, but her concerns were not properly validated. The staff memo sought action from management and the executive regarding the health impacts of the work, so staff would not have been surprised if their managers and/or HR followed up by offering work related mental health screening after the memo was provided. The plaintiff was prepared to accept a referral to Mr Foenander by her GP when she was unwell in August 2011, and she was also willing to liaise with Mr Carfi and the HR manager about her future role at the OPP after 9 February 2012. She agreed to be assessed by Mr Carfi at the request of the OPP in March 2012.

If that be right, that she was willing to accept each of those things and they were enough to satisfy the Court and, indeed, the Court of Appeal, that she

would have taken up the offer of screening, we say that those very same facts suggest – indeed point only in the direction of the plaintiff also accepting whatever reduced workload, including, if necessary, rotation, if offered to her. We say that stands in marked contrast to what the Court of Appeal said at paragraph 108, where we say the gravamen of the error is to be found.

The seventh and last point to make by way of reply, is simply that in discussion - there was discussion between my learned friend and the Bench about whether or not the employer would be notified of the outcome of the PTSD. Indeed, that is the position and is the finding the subject of paragraph 733. We do not understand it to have been said otherwise, but it is the position, and it is not in issue in this Court, that the screening would have been accepted, the screening would have disclosed the appellant’s PTSD and, further, that the employee would have known of that outcome. If the Court pleases, they are the submissions on the notice of contention and in reply on behalf of the appellant.

KIEFEL CJ: Yes, thank you. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.

AT 3.56 PM THE MATTER WAS ADJOURNED

[2021] HCATrans 204

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