Lee v State of Queensland - [2015] QDC 83

DISTRICT COURT OF QUEENSLAND

CITATION:

Lee & Anor v State of Queensland [2015] QDC 83

PARTIES:

BARBARA ELAINE LEE
(plaintiff)

and

STATE OF QUEENSLAND
(defendant)

and

PAUL JOSEPH SWINDLES
(plaintiff)

and

STATE OF QUEENSLAND
(defendant)

FILE NO/S:

D2609/12; D4001/12

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

16 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

25-29 August, 7-9 October, 7 December 2014

JUDGE:

McGill SC DCJ

ORDER:

Judgment for the defendant in each matter.

CATCHWORDS:

EMPLOYMENT LAW – Injury to employee – psychiatric injury – whether duty of care – whether breach – whether causation – damages assessed.

Hegarty v Queensland Ambulance Service [2007] QCA 366 – applied.
Howl at the Moon Broadbeach Pty Ltd v Lamble [2014] QCA 74 – cited.
Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64 – cited.
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 – cited.
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 – considered.
New South Wales v Fahy (2007) 232 CLR 486 – cited.
New South Wales v Lepore (2003) 212 CLR 511 – cited.
New South Wales v Paige (2002) 60 NSWLR 371 – considered.
New South Wales v Rogerson [2007] NSWCA 346 – applied.
O’Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 – considered.
Palmer v State of Queensland [2015] QDC 63 – cited.
Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486 – applied.
Sullivan v Moody (2001) 207 CLR 562 – cited.
Tame v New South Wales (2002) 211 CLR 317 – cited.
Vairy v Wyong Shire Council (2005) 223 CLR 422 – applied.
Wicks v State Rail Authority of NSW (2010) 241 CLR 60 – cited.
Wolters v University of the Sunshine Coast [2013] QCA 228 – considered.

COUNSEL:

CC Heyworth-Smith and SD Anderson for the plaintiffs

GW Diehm QC and JM Rosengren for the defendant

SOLICITORS:

Shultz Toomey O’Brien Lawyers for the plaintiffs

Crown Solicitor for the defendant

The plaintiffs were formerly employed by the defendant through the Department of Education at a school in Brisbane, Ms Lee as a teacher and Mr Swindles as a groundsman. The plaintiffs are, and were at most but not all material times, in a relationship. Each plaintiff alleges that the acts and omissions of persons for which the defendant is responsible caused psychiatric injury for which the defendant is liable. Liability and quantum are both in issue. On 19 June 2013 these matters were ordered to be heard together, with the evidence to be evidence in both.

Background

The plaintiff Ms Lee completed her training in 1991 and then worked as a teacher with the Education Department, teaching at primary schools: p 1-28. In 1997 she was advised that the department would be transferring her to Dirrinbandi: p 1-67. She was not happy about this and appealed against the decision but that appeal was rejected. She then went on what she described as stress leave; presumably a medical practitioner certified that she was unfit to work as a result of stress, and she took sick leave or applied for worker’s compensation. Ultimately that transfer did not go ahead, and she was transferred instead to Eagleby State School. In 2000 at a time when her father was hospitalised in Brisbane she applied for a transfer from Eagleby to a school closer to the hospital, but that was refused; she was unhappy about that, and again took some “stress leave”.

In 2004 she was transferred to a State school in the outer eastern suburbs of Brisbane: p 1-28. The following year the plaintiff Mr Swindles began to work at the same school as the groundsman: p 2-83. He had previously been associated with the school as a parent. In the past he has worked as a French polisher with a furniture restoring business (p 2-85), and was married with three daughters. His wife had been a process worker, but had ceased employment when they started a family: p 5-45. In about 2002 his wife left the family home, taking with her the youngest daughter; the other two were left with Mr Swindles: p 2-84. There were subsequently proceedings in the Family Court, to dissolve the marriage and for custody and as to the property of the parties to the marriage. The matter went to trial in the Family Court over three days, and produced a reserved judgment by which in December 2003 the former wife was ordered to return the daughter to him: Exhibit 80.

Mr Swindles, understandably, found that process quite stressful: p 5-46. The order made provision for the former wife to have access to the children at certain times. Mr Swindles said that there was some difficulty about the initial handover of the daughter (p 3-42), but thereafter his former wife had generally complied with the terms of the order, although at times she had not exercised a right to access which the order gave her: p 5-46. There were times when she moved temporarily to Sydney, and then she did not exercise those rights at all. Eventually she moved to Sydney permanently, and access effectively ceased: p 2-87. She continued to telephone the children regularly, but in time that also tapered off, and stopped: p 5-47.

Mr Swindles had enrolled the older two girls at the school and in due course the youngest daughter also attended it: p 2-83, 85. As a parent, Mr Swindles had some contact with Ms Lee, and other teachers at the school: p 1-28, p 2-85. After he obtained possession of the youngest daughter, he sought employment at the school because that would fit in well with his desire to take care of the youngest daughter in particular; after school she could go to his shed until it was time for them to go home: p 2-86. His initial application for the position was not successful, but the position became available again, and he was appointed: p 6-38.[1]
[1]Unfortunately the trial was adjourned for a time after day 5, and the later transcripts begin again from day 1. I have corrected all references.

During 2006 the plaintiffs became friends, and a relationship developed between them.[2] They were initially discreet about the relationship, but they attended a fete at the school in September 2006 as a couple, and that was treated by them as effectively making the relationship public. They bought a house together in July 2007 (p 2-94), and lived there until they separated in May 2010, and the house was sold.
[2]Lee p 1-29, Swindles p 2-88.

Trouble in 2006

Mr Swindles said that one day in 2006 he saw an envelope under the windscreen wiper of Ms Lee’s car in the staff car park at the school.[3] He gave it to Ms Lee, who opened it (p 1-29) and found what purported to be a note from Mr Swindles describing in graphic terms a desire for sexual activity with Ms Lee: Exhibit 2. It ended with the suggestion that she come to his shed again for some “practice” but otherwise made no reference to any actual sexual activity between them at the school. It included a favourable comparison between Ms Lee and a young girl which implied an interest in young girls. The note mentioned Mr Swindles’ youngest daughter by name, and referred to the fact that she had some pyjamas similar to pyjamas of Ms Lee. Ms Lee had seen that daughter in those pyjamas, and had commented to her that she had similar pyjamas herself. Ms Lee said that she was shocked and upset when she read this: p 1-28. Mr Swindles denied that he had written it, and Ms Lee believed him.[4] She reported the matter to the principal, but did not that day provide a copy of the letter or disclose its full contents.[5] He said he would speak to the department, and he did so as a result of which he reported the letter to the police: p 6-41, 42, Exhibit 96.
[3]Page 2-88. It was in fact on 18 October 2006: Exhibit 96.
[4]Lee p 1-30; Swindles p 2-89.
[5]Lee p 1-30; Peacock p 6-41.

He saw both plaintiffs the following day and told them he had done that, and obtained the letter so that he could make a copy to be sent to the department.[6] On this occasion he also disclosed that there had been a couple of anonymous phone calls purporting to be from a parent accusing the plaintiffs of talking and texting about, and engaging in, sexual activity at the school.[7] The plaintiffs said that they became upset and angry when they learnt this, as they were concerned that their safety and that of the girls might have been at risk.[8] They said that he told them that the complaint had been made by a woman who had sounded unhinged, but he denied saying this. They said that he told them he had been told to keep an eye on them, which also upset them.[9]
[6]Lee p 1-31; Peacock p 6-44-46; Exhibit 97.
[7]Lee p 31; Swindles p 2-89; Peacock p 6-39, who reported the matter to the department in writing: Exhibit 27. His account is supported by a contemporaneous note: Exhibit 96.
[8]Lee p 1-31; Swindles p 2-90. See also Peacock p 6-46.
[9]Lee p 1-31; Swindles p 2-90; Peacock denied saying this, or in fact keeping an eye on them: p 7-51, 106. He had in fact been told not to tell them of the calls: p 6-41. Again his version is supported by his contemporaneous note: Exhibit 97.

The matter was investigated by the police, but no offender was identified. After the incident of the letter, there were a series of harassing or prank phone calls to the plaintiffs when they were together.[10] Either a land line or one of their mobiles would ring, but if answered the caller would not speak. Ms Lee had a silent number at the time, though it was recorded at the school, as was the number of her mobile. This suggested that the person making the calls was aware of when they were together, which suggested that they were being watched. The plaintiffs made an attempt to find out the number from which the calls were made, but could not learn this information. They also told the principal about this: p 1-32. The police were also advised of these calls, no person was charged with any offence in relation to them, although the plaintiffs were advised the police had spoken to someone about them.
[10]Lee p 1-32; Swindles p 2-91, said it started before the letter incident. They continued for about two months: p 1-73, p 2-2, p 2-91.

The plaintiffs had no idea who was responsible for the note and the phone calls; they assumed it was the same person.[11] It occurs to me that an obvious candidate would be Mr Swindles’ former wife. She would not have been happy about failing to obtain custody of her daughters, and he said that she had subsequently threatened to make further applications at the Family Court in relation to the question of custody, although in fact she never did. Ms Lee said that they had had trouble from Mr Swindles’ former wife (p 1-80), though Mr Swindles said that, apart from the initial delay handing over the youngest daughter and the threats to go back to the Family Court, there had been no particular trouble from her: p 5-47. On the face of it this is an inconsistency in their evidence, consistent with Mr Swindles’ desire to downplay the suggestion that she was the person responsible for these incidents, though it may simply be that Ms Lee has a lower threshold for troubling conduct.
[11]Swindles p 2-89; Lee, Exhibit 10.

Mr Swindles asserted quite definitely however that his ex-wife could not have been the one who wrote the letter, on the ground essentially that it was beyond her literary capacity: p 4-23, p 5-48. For there to be force in that reason her literary capacity must be quite limited, since there are many deficiencies in the letter. There are numerous examples of missed capitalisation, and other deficiencies in punctuation; the letter is innocent of apostrophes. The word “practise” is used as a noun. Deficiencies in spelling could have been removed by a spell-checker or autocorrect programme. [12]
[12]Spelling may not be a reliable guide: see Exhibit 29.

Mr Swindles said he thought the original document had been produced on a typewriter (p 5-48), but this may be because it is in the Courier font, a traditional typewriter font which can however be generated by a computer. It is difficult for me to tell without seeing the original, which is not in evidence, but the copy in evidence appears to be too uniform to be from a manual typewriter, and “Page 1” appears at the bottom of the document, suggesting an automatic addition.

There was another incident at about the same time. One evening Mr Swindles and Ms Lee drove separately to a suburban shopping centre where they met for coffee, and when Mr Swindles returned to his car he found that it has been scratched: p 2‑92. Initially he only saw scratch marks around the key hole on the door, but when he returned home he saw that there had been other scratching, including a rude expression scratched on the bonnet. He assumed it was done by the same person, and that it again indicated that he was being watched (p 2-93), though it occurs to me that it would be consistent with an instance of casual vandalism. He told the principal about this: p 2-93.

Ms Lee became quite upset as a result of these events. She did not work for four weeks from 24 October 2006, and applied for worker’s compensation.[13] When she returned to work two other female teachers came up to her in the staff room, hugged her and offered their help: p 1-33. They spoke about how the whole situation was terrible. Ms Lee assumed from this that one of them had had access to a copy of the letter, and said she was upset about this: p 1-36. In my opinion, that that teacher had seen the letter was not a reasonable inference to draw from what Ms Lee said had been said to her at the time.[14] Ms Lee’s evidence was that the fact that such a letter had been found had not been made known by her generally at the school at this time: p 1‑62. However, when she was later interviewed by officers from the ethical standard unit in the course of their investigation, she made statements the natural meaning of which was that she had discussed the letter with some staff at the school: Exhibit 10, p 3. In cross-examination, she said this applied to a later time than this incident. Ms Lee attended counselling following her return to work, including at times during work hours, and she informed the principal about this, what she was doing and why: p 1-37. The length of this period of counselling did not emerge from the evidence. Mr Swindles was given antidepressants by his GP for a time in 2007: p 3-8. It does appear however that by early 2008 neither of the plaintiffs was experiencing any continuing problems associated with the events of 2006.
[13]Lee p 1-33; Exhibit 115 (30 October 2006); this was referred to as leave, but presumably she was certified as unfit for work in this period.
[14]See p 1-36, p 1-62 where the actual words were given. She could not have in fact seen a copy at the school, as there was not one there: Peacock p 6-44, 45, p 7-95, which I accept.

The book

In August 2008 Ms Lee’s father passed away: p 1-37. She was very upset about this, took some bereavement leave, and then took a period of long service leave which had already been arranged. She experienced a recurrence of a long standing eating disorder.[15] This continued into 2009,[16] when she received more counselling.[17]
[15]Dating from her teens: p 1-65.
[16]Mr Swindles however claimed at one point that she was quite happy at the end of 2008: p 5-6.
[17]Exhibit 30: from 27 March 2009, not as claimed by Ms Lee at p 1-85.

While Ms Lee was on leave, one of the teachers at the school began to publicise a book that her husband had written set in a primary school in Brisbane, narrated by a female teacher whose husband was said to be a writer. A flyer advertising the launch of the book, at which the author was to read excerpts, was put up in the staff room, and the author’s wife made statements to other staff members suggesting that they featured in the book.[18] Ms Lee was not at work during this period, but heard that this had occurred. Mr Swindles was at work, but did not often go in the staff room at that stage, and did not notice this advertisement.[19] The time when copies of the book became available was not established,[20] but it appears that they were available in early January 2009, and some staff members obtained copies.[21] That month Ms Lee was phoned by a work colleague who told her that she was reading the book, and that Ms Lee should do so also: p 1-38.[22] Ms Lee said that she subsequently borrowed a copy of the book from that colleague; Mr Swindles said that he arranged for his mother to obtain a copy of the book for him. Each claimed only to have read part of the book,[23] parts involving characters which they identified with themselves, though it emerged from cross-examination that each of them was artificially down-playing the extent of familiarity with the contents of the book.
[18]Warland p 5-59; this occurred in term 4: p 5-64; Flynn p 5-76; Conley p 6-5; Pierce p 8-3: around November. I do not accept the evidence of Ms Lee at p 1-37 that she heard the author’s wife refer to the book while she was still at work. She did not refer to this in Exhibit 10, or to Dr Varghese: Exhibit 92. Ms Flynn said this exchange occurred after the flyer was put up: p 5-76.
[19]Swindles p 3-5, p 4-34; Ms Lee said she was told of it by him: p 1-38. He said he heard others talking of it: p 3-4, in November 2008: p 5-8.
[20]The date of publication was not the subject of evidence, or at least, reliable evidence.
[21]Warland p 5-64; Pierce p 8-3: just before Christmas 2008.
[22]Mr Swindles said this occurred around Christmas 2008: p 5-8.
[23]Swindles p 3-6, where he claimed to have read only the chapter on the groundsman, but went on to say he was upset by particular things which were in different parts of the book. It emerged at p 4-4 that he had looked through the whole book.

Ms Lee said that she found the contents quite upsetting, because the book described an affair between a teacher and the groundsman at the school where it was set. The book implies that the characters were having sexual intercourse while at the school, something that the plaintiffs denied they had done: p 3-11. Ms Lee saw this as a reference to her relationship with Mr Swindles, on the basis that she identified the book as relating to the staff at their school, although there were a number of features of that character in the book which did not apply to her. She characterised the book as implying that the plaintiffs had been doing such things at the school, and as a result she was very upset by its publication. As well, she saw in this a connection to the letter incident in 2006.[24] Mr Swindles said he was horrified by it, because it brought back memories of the events of 2006: p 3-6.
[24]Lee p 1-41, 42. The connection was extremely tenuous.

A copy of the book became Exhibit 1. I have read it. It is not the sort of book that I would ordinarily read, and I took no pleasure in reading it.[25] It strikes me as badly written, and it has certainly been very badly proof read.[26] The plaintiffs in their evidence emphasised similarities between characters and incidents described in the book and characters and incidents at the school where they worked; numerous significant differences were identified in cross-examination. To me the points of distinction are dominant, although no doubt there is much in the book that was not the product of original writing. In particular, there were many differences between Ms Lee and the character Jane Early (p 2-35, 36) and many differences between Mr Swindles and the groundsman in the book.[27] I suspect that the fact that the wife of the author was a teacher at the school, that the book was set in a primary school, and that a number of incidents which had actually occurred at that school[28] found their way into the book meant that those associated with the school were looking for points of similarity, and would identify characters on a relatively slight basis.
[25]Except from spotting the frequent mistakes. I counted 50, including incorrect wording of the first line of the national anthem (p 39), an error in arithmetic (p 40) and inconsistent information about the career of Mr Theron: p 3, p 9, p 40. There were also 12 examples of debatable usage.
[26]It was apparently published by the author.
[27]See Conley p 6-15; she identified herself with Jane Early, and an earlier groundsman with the one in the book.
[28]In many cases before the plaintiffs’ arrival at the school: p 2-33.

It would be natural enough for a husband and wife to talk about the events that occurred during their work, and the characters involved, and it may be that the author’s wife had more to talk about of this nature. It does not necessarily follow that she was deliberately gathering material for him, though it would be consistent with her having done so. Certainly the author was content to incorporate into the book incidents which had actually occurred at the school, and features of some staff members at the school. It may be that this aspect of the book is emphasised to a knowing reader because there is otherwise a paucity of character development, or anything in the way of a plot.

When Ms Lee returned to school in late January 2009 she and another teacher spoke to the principal about the book, and the fact that staff were concerned about it, as was the case.[29] At some point staff became uncomfortable about working with the wife of the author.[30] Some teachers felt this more strongly than others. Ms Lee was angry about it, since she considered that that teacher was in clear breach of the code of conduct: p 1-42. The principal said that he would contact the department.[31] Ms Lee claimed that a couple of days later there was another meeting, when the principal said that he had been told that they were to work with the teacher concerned and drew attention to the Employee Assistance Scheme.[32] Ms Lee was angry about this and complained about it to the principal. She also told him she was seeing a counsellor,[33] as she was anxious and needed support, and for help with her eating disorder: p 1‑43. In mid‑February 2009 the book was advertised in the Queensland Teachers’ Union journal.[34] This caused increased concern among the staff: p 7-29, 33; Exhibit 108.
[29]Lee p 1-42; Peacock p 6-54, said they had wanted the book stopped, which obviously could not be done. This was the first notice to the school of any concern by either plaintiff about the book.
[30]They also investigated the possibility of suing the author for defamation: p 2-4.
[31]Peacock p 6-54. As he did: Exhibit 98, email dated 2 February 2009. The reply the next day sought more information: Exhibit 99. He provided some additional information on 10 February 2009: Exhibit 102, Exhibit 100. The Department was unable to assist with legal proceedings, but drew attention to the EAS: Exhibit 103, 10 February 2009. On 11 February an investigation by Ethical Standards was foreshadowed: Exhibit 104. He also spoke to the union: p 6-55, 56.
[32]Peacock p 7-19 denied saying they were not to discriminate against her. Warland p 5-19.
[33]There was no other evidence that she was seeing a counsellor in February 2009; she began to see one in March 2009: Exhibit 30.
[34]Exhibit 8: copies were placed in the staff room and discussed by teachers: p 2-10.

The teachers were unhappy with the situation and on 20 February 2009 held a meeting at the school which resolved that they wanted the teacher removed from the school.[35] After some discussion, the staff were told that that teacher would leave the school, and apparently she did immediately, and was subsequently transferred: p 5-64. That teacher was very upset by the strength of the hostile reaction of other staff at the school, and she seems to have been surprised at this.
[35]Ms Lee described the resolution as carrying a threat of industrial action if she was still at the school the following Monday (p 1-43, p 2-13), but another staff member who moved the resolution had no recollection of this part of it: Warland p 5-63, 64. See also Peacock p 7-91. For the date, see p 2-12, p 5-70.

In about April Ms Lee said that she and another teacher had a meeting with the principal about what could be done about questions about the book coming from other staff members and parents: p 1-45. In response the principal circulated an email containing a form of words which could be used to deflect enquiries from parents: Exhibit 3. Ms Lee regarded this response as inadequate: p 1-45. I cannot see what else could have been done.

Ms Lee, and I take it others at the school, had also complained to the department about that teacher, and subsequently officers from the Ethical Standards Unit who were investigating that complaint interviewed the plaintiffs, separately.[36] The interviews were recorded and transcripts were put in evidence.[37]
[36]Lee p 1-44, where she said she found the interview very stressful. Also, p 2-72.
[37]Ms Lee, Exhibit 10; Mr Swindles, Exhibit 78. Other transcripts from this investigation, in evidence only on a limited basis, are Exhibits 87-89.

One of the curious features of this case is that, although Ms Lee was seeing a doctor in late 2008 and early 2009, if she mentioned any problems arising from the book, the doctor made no note of them, although other stressors were noted.[38] When the doctor referred her to a counsellor, the referral letter made no mention of the book (Exhibit 29) and the counsellor’s notes of the first consultation on 27 March 2009 also did not refer to the book: Exhibit 30. The book appears in the notes for the first time on 8 April 2009: Exhibit 31. The effect of the death of her father remained the primary focus of this counselling, at least until 25 May 2009: Exhibit 36; Uhlmann p 4-102. This is inconsistent with Ms Lee’s evidence, suggesting that her account of the significance of the book to her in early 2009 has been exaggerated.
[38]Exhibit 120: visits on 5 December 2008, 14 January 2009, 20 January 2009 and 26 February 2009.

What did occur however during 2009 was a deterioration in the relationship with Mr Swindles. On 17 June 2009 she attended and was admitted to the mental health unit at the Redlands Hospital, complaining about an argument with him, and wanting to leave him: p 2-16, 17; Exhibit 122. Ms Lee continued to work[39] until 31 July 2009 when she again stopped work: p 2-24. On 29 July 2009 she told her doctor she was unable to continue working, and applied for compensation: Exhibit 120; Lee p 2-23. Her explanation was that her mental health had deteriorated since she first became aware of the book, because she felt unsupported: p 1-44. She thought that the department would protect her somehow, but was dissatisfied by the department’s response,[40] and because she felt that everything had been a struggle for her. She referred to the difficulty in getting the other teacher moved away from the school, and mentioned being reprimanded for sending emails directly to the investigator from the Ethical Standards Unit who was looking into their complaint. She formed the opinion that the department was protecting itself and not interested in the impact this was having on her, and she said that took its toll on her.
[39]Except for a visit to her sister in the United States in June 2009, which made her feel better: p 2-22.
[40]She spoke about not being taken care of, but gave no specific information as to what ought to have been done from February to July 2009: p 2-23.

On 25 September 2009 she threatened an overdose, and when Mr Swindles called an ambulance, she left the house, and was found at a cemetery: Exhibit 122; Lee p 2-27. There was a further incident when she told Mr Swindles she wanted to leave him later that month (Exhibit 120) and on 31 October 2009 police were called by Mr Swindles’ daughter after he was attacked with a frying pan: Exhibit 122.[41] There was further hospitalisation on 6 November 2009 (p 2-57) and in May 2010, in conjunction with the separation: Exhibit 122. It looks very much as though at this time it was the breakdown in the relationship which would have been the major stressor for the plaintiffs. Dr Varghese attributed the breakdown to her personality and pre-existing depression creating a vicious cycle: p 7-71, 72.
[41]Despite all of this, Mr Swindles discontinued his medication in November 2009: p 5-44, 45 where he said that he felt well at that stage. This was medication pre-dating the publication of the book. When he visited doctors on 3 June 2009, 21 September 2009 and 9 November 2009, there is no record of any complaint about the book or its consequences: Exhibit 121.

There were a number of occasions on which Ms Lee spoke about suicide or did things that suggested an intention to suicide, but there was no evidence that Ms Lee actually attempted suicide, that is actually did anything to herself which put her at risk of dying, whether by swallowing a quantity of anything toxic, or actually cutting her wrists.[42] The description of what she did struck me as essentially theatrical, attention seeking exercises on her part.[43] On one occasion she told a medical practitioner that she enjoyed the attention that she received as a result of other conduct, going out for long walks.[44] There was a lot of tension in the house, because she was anxious and stressed: p 2-18.
[42]For example, in June 2009, she claimed she intended to take an overdose but was stopped by Mr Swindles: p 2-17. In September 2009 she was taken to hospital after she threatened to take an overdose, and then left the house: p 2-27.
[43]Dr Varghese agreed that this was possible: p 2-75.
[44]Lee p 1-80; including late at night: p 2-25.

Letterbox drop

Ms Lee remained off work until January 2010. She planned to work at the beginning of the school year, but the day before she was due to start the plaintiffs found in their letterbox a leaflet referring to the book as if publicising it, but expressly identifying the school in the book, saying that one of the characters was based on Ms Lee, giving her address, and that the groundsman was based on the current groundsman at the school: Exhibit 4. The plaintiffs found that it had been distributed to a number of other neighbouring houses.[45] They were upset about this, and reported the matter to the police who investigated but, unsurprisingly, were not able to identify the person responsible.
[45]Lee p 48; Swindles p 3-18.

Ms Lee in fact returned to work as planned, a graduated return to work. Soon after this started there was a meeting arranged at the school to discuss with the plaintiffs (and others concerned about the book) what the department could do to help them: p 1-49. The plaintiffs had discussed what would be sought and decided to ask for family counselling, and for someone from the department to liaise with the police about the brochure. The letter was presented as an exercise of getting additional information (p 1-50) or in relieving them of the burden of following up with the police.[46] There was a conflict in the evidence about what happened at the meeting when these requirements were made by Ms Lee.
[46]It is clear enough that what they really wanted was for the department to pressure the police into pursuing their enquiries more vigorously: Lee p 2-61. Note the question at p 7-59 line 1.

Ms Lee gave evidence that at the meeting when she asked for liaison with the police, and for family counselling, both were refused: p 1-50. She said that she was told that the department were not family counsellors, and given a list to investigate for ourselves. She conceded that liaison was eventually offered, but said that was after a long period of refusal: p 2-60. She conceded that she was angry at the end of the conversation: p 2-63. She denied that there was any offer to investigate options for the department to pay for that. Mr Swindles said that liaison with the police was just refused, and that when they asked for counselling, they were just referred to the EAS: p 3-22. There was no offer of help with the police at any time: p 5-15, 16. The school chaplain, who was there, said that when counselling was raised, they were told there was no budget for counselling (p 5-93) but agreed that they were told that the officers of the department were not aware that that was what was expected: p 5-96. The principal said that he had raised this with them before the meeting: p 6-70; Exhibit 111. There was a misunderstanding on the part of district office as to what was required: p 6-71, 72. When liaison was raised, the plaintiffs were told that he and someone from district office would liaise with the police, and Ms Lee only became angry when the issue of payment for counselling came up: p 7-59, 60. There are contemporaneous documents about liaison with the police,[47] and I accept the evidence of the principal about this meeting.
[47]Exhibits 112, 114.

There was no dispute that Ms Lee became upset, and left the meeting, and went to an office nearby which had been allocated to her for the purposes of her return to work.[48] Mr Swindles followed her and tried to comfort her although he was upset himself. No doubt he was also upset by her reaction. Ms Lee went off work again for a while,[49] and in May 2010 the plaintiffs separated: p 1-51. Ms Lee explained this as due to her being emotionally unstable and angry. She did not return to fulltime work until the end of 2010.[50] After the separation, the principal sent a circular email to staff in terms which were approved by the plaintiffs.[51] This would have made public within the school the fact that the parties had separated, but in fact the plaintiffs began to contact each other again soon afterwards, and began to become reconciled in August or September 2010: p 1-53. They began to meet for coffee, or just to talk at the school.
[48]Lee p 1-51. Conley p 6-19: Ms Lee shouted at the officer; Peacock p 6-72: Ms Lee started to swear.
[49]Mr Swindles also went off work the following day, he said after another conversation with the principal: p 3-72. See Exhibit 112 and p 6-72, 72, p 7-98, 99 for the principal’s version of this, which Mr Swindles essentially accepted at p 5-21. He returned in April 2010.
[50]She requested a transfer to a different school on 31 May 2010: p 2-65.
[51]Exhibit 13; Lee p 2-67, Swindles p 3-74; Peacock p 6-74-76.

Mr Swindles said that he told the deputy principal that the parties were reconciling (p 5-24), but there was no suggestion that either of the plaintiffs mentioned this to the principal, and he felt unhappy about the fact that he had not been told, particularly in view of his earlier email and support: p 6-76. That attitude on his part is understandable. He spoke to Mr Swindles, asked if they were together again, and when told they were, expressed his frustration that he had not been told, in view of the consideration he had shown earlier: p 6-76, p 7-101. He conceded that he was angry and raised his voice.[52] In October 2010, in response to a proposed move to teach years 1 and 2, Ms Lee went off work again, and was then transferred, at her request, to another school: p 1-55. In mid‑2011 she changed to working only part time, she said because she was feeling tired and emotional and could not cope: p 1‑55. In 2013 the plaintiffs moved to the United States where she tried teaching but found she could not cope: p 1-58. She now does not believe she can teach at all: p 1‑59.
[52]Peacock p 7-100, 101. Mr Swindles also claimed that he pointed at his face, and that he (Mr Swindles) was crying (p 5-26), both of which the principal denied: p 6-76, 77, p 7-101, 102.

During 2010 there was also a dispute between Mr Swindles and the school authorities as to Mr Swindles’ lunch hour. The business services manager asked him to take his lunch hour at a time different from the time when the children were having lunch. He suggested in his evidence that there was no good reason for this, in terms of the practical requirements for his job, and that he could not do any work in the school grounds while the children were on their lunch break. He clearly thought that the change was prompted by a desire to prevent him and Ms Lee from spending time together during the ordinary lunch break. Both the principal and the services manager, who was Mr Swindles’ immediate supervisor, testified that the purpose of this direction was so that Mr Swindles would be available during the lunch break in case anything needed to be done at that time, such as repair work had to be undertaken in a classroom, which strikes me as a plausible explanation.[53] In any case it was a matter for the school authorities to determine when he would take his lunch break.
[53]Peacock p 6-67; Jeffs p 3-15, 23–25.

There had been an earlier occasion when he had been asked to take the lunch break before the general school lunch period, and he had agreed and done so for a while, but had reverted to his former practice.[54] On 13 September 2010 the services manager spoke to him again, asking him to take the earlier lunch break.[55] Mr Swindles became upset, raised his voice and swore at her, and asked that Ms Lee join the meeting, apparently on the basis that she had some position in the Queensland Teachers’ Union for the school, though Mr Swindles was not a member of that union.[56] The services manager sent for the principal, but the meeting degenerated into an argument, Mr Swindles became more upset, refused to cooperate and left the school: p 3-81. He has not returned to work at the school since.
[54]Jeffs p 8-16: in November 2009, and Mr Swindles agreed to this. Swindles p 3-79, p 5-28: said he agreed to trial this, but thought it unnecessary. Jeffs’ version was confirmed by Exhibit 110.
[55]Swindles p 3-77; Jeffs p 8-18. There was also a request to take part in a programme, which he refused.
[56]Lee p 2-69; Swindles p 3-29; Jeffs p 3-19, said Ms Lee was yelling and very aggressive.

The services manager who gave evidence had somewhat limited recollection of the details of the conversation, but she wrote a detailed email to the principal the following day, which is helpful: Exhibit 117. As well there was a contemporaneous email confirming that in November 2009 Mr Swindles had been asked to change his lunch hour and had agreed: Exhibit 110. Exhibit 117 noted that Mr Swindles had not complied with the earlier agreement, but that she had not pushed the point because during that year Mr Swindles had frequently seemed upset and emotional, which she attributed to the breakup of the relationship with Ms Lee.[57] She said that Mr Swindles had been telling her about the difficulties he was having and that she had offered him support during that period, but they had apparently got back together again as shown by the fact that they had been seen together, and Mr Swindles had been seen hanging around the building where Ms Lee worked. In these circumstances, she considered it appropriate to raise again the issue of the timing of his lunch hour.
[57]Prior to that was the school holiday period, and then he had a couple of months off on workers’ compensation: p 5-33.

She said that Mr Swindles became aggressive during the conversation and she asked him to stop until she could get the principal to come, and he then said he was going to get Ms Lee. When the meeting resumed Ms Lee also became quite aggressive and told her she had no right to tell Mr Swindles what to do, he did not have to complete the paperwork offered that day and he did not have to change his break times. It is apparent from this document that the notion that changing the lunch hour was in some way an exercise in separating the plaintiffs was completely false; the issue was of long standing, but had not been taken up because of concern about the effects on Mr Swindles of the break up in the relationship. There was a connection to the fact that they appeared to be getting back together, but that was because in such a situation it was expected that he would be having less difficulty than during the break up, so that the need to postpone action on this issue had gone away.

This meeting is the subject of allegations in paragraph 34 of the amended statement of claim, but it was common ground that it actually took place on 13 September 2010. It was not disputed that Mr Swindles was actually told in that meeting that he had been seen spending time with Ms Lee, but I do not accept the rest of paragraph (a) is made out. It was the case that Mr Swindles had been seen hanging around the administration building where Ms Lee was then based, and it was admitted that Mr Swindles was told of this during that meeting. Paragraph (c) was not made out; no such direction was given. I do accept that Mr Swindles was told that he had to change his break times, and that had the effect that he would not be able to have lunch with Ms Lee, but I do not accept that that was the purpose of the direction.

I accept the evidence of the services manager, particularly the version in Exhibit 117, and what she could recall of the conversation on 13 September 2010. I accept paragraphs 31(i),(ii) and (iii) of the amended defence were made out. With regard to the allegation in paragraph 31(ii)(a)(4), the matters referred to there were matters that, as Mr Swindles’ supervisor, the services manager was entitled to raise, as matters touching on whether he was properly performing the duties of his position, or whether he was spending time which ought to have been spent doing his job in attempting to mend the relationship with Ms Lee. I consider that it was reasonable and appropriate for her as Mr Swindles’ supervisor to be raising these matters with him.

The principal confirmed that it was convenient to have the groundsman not on lunch during the time when the children were having lunch, and he was aware that the services manager had raised this with Mr Swindles: p 6-67. The principal’s recollection of that meeting was that it was Ms Lee who came into his room, at a time when he was seeing the curriculum auditor, and asked him to come to the meeting, but he did not go straight away, until he had finished his meeting: p 6‑78. He said he went about 20 minutes later. It may be that the services manager had previously tried to get him to the meeting, and he had not come straight away, because he was seeing the auditor. Her recollection was that she was the one who got the principal to come: p 8-19. Exhibit 117 is not explicit on this point. She rejected the idea that Ms Lee had gone out of the meeting to get the principal: p 8-33. She had however previously said that she would not have been in the meeting with the two plaintiffs without the principal being present, and she later said that the conversation continued after the principal entered the room: p 8-34. I expect that what actually happened is that she went to get the principal but was unable to get him to come immediately,[58] and subsequently Ms Lee made a similar attempt, but the meeting remained suspended until the principal did arrive. The principal did not recall the details of the meeting after he joined it, simply saying it turned into an argument rather than a discussion: p 6-78, p 7-103.
[58]She may not have seen him personally: p 7-103.

Credibility

I should say something about the credibility of witnesses. Ms Lee generally gave her evidence in a fairly calm and measured way in the witness box, but in the light of the psychiatric evidence it is clear that when she was involved in events which she found stressful she would have had a strong emotional reaction to them, and I think it likely that that reaction may have clouded her recollection of the detail of the particular events in question. She also seemed to me to manifest a fairly strong sense of grievance about these matters, and I am concerned that the strength of her feelings in this regard may have led to some distortion in her recollection of events. I am therefore wary about her account of occasions where she was in an emotionally charged state at the time. I note as well the medical evidence that I mentioned elsewhere, that one of the features of her personality would be a tendency only to see things from her point of view, and this may also serve to distort her recollection of events which she saw as having some impact on her. Hence if for example a conversation occurred which she interpreted as an attack on her, her subsequent recollection of what was said would be coloured by that interpretation, and therefore may not be a reliable account of what was actually said. For that reason I am cautious about the reliability of her account of incidents which she found stressful.

I formed quite an unfavourable view of Mr Swindles as a witness while he was in the witness box. There were a number of things he said that I could not accept,[59] and in a number of respects it seemed to me that he was evasive or changed his evidence. For example, at the beginning of his cross-examination he was evasive about what he told the doctor during a medical examination undertaken to satisfy the American authorities so that he would be allowed to become a resident there: p 4-3, 4, where he ultimately conceded that what he said at the beginning of that questioning was not true. At p 3-6 he said that he just read the chapter on Bob the groundsman in the book, and when asked what he thought when he read that chapter replied, “Well, it was horrifying. It brought back the memories of the letters, the phone calls.” That statement was false; there was nothing in that chapter relating to the letters and the phone calls. Insofar as the book implies that the groundsman in the book and the deputy principal in the book were engaged in sexual activity at the school, it occurred elsewhere in the book, as did the mention of the groundsmen dancing with year seven girls.
[59]For example, he claimed he would spend all day mowing one oval: p 5-30. At the speed and width of cut he accepted, he would have cut a square with 100m sides in three hours.

He claimed that when the principal initially told them about the anonymous telephone calls to the school, that he had added that he had been told to keep an eye on them: p 2-90. When cross-examined about this, he said at one point that he couldn’t remember the exact words, but, almost immediately thereafter, said: “I’m sure he said – to keep an eye on her, were his words.”: p 4-31. When talking about supposed similarities between himself and the groundsman in the book, he mentioned at p 3-13 that there was something about catching snakes and that he was quite often called to the playground because there would be a snake close to the children, for him to get rid of it, to move it along. As was shown in cross-examination, the only reference to a snake in the book was when the groundsman was told about the snake and refused to deal with it. When he was cross-examined about this, the point of similarity changed to the idea that, like the groundsman in the book, he didn’t catch snakes: p 4‑9. Yet at another point he spoke about having put a bin over the top of a snake to keep it secure until a snake catcher could come and take it away: p 4-8, just after he had spoken about refusing to catch snakes after he caught the first one, having been nearly bitten by it.

Mr Swindles seemed to be willing to say almost anything that he thought would assist his case. Overall, my impression of Mr Swindles was distinctly unfavourable, and I am not prepared to accept his evidence as reliable unless it was independently supported, or inherently probable.

The principal gave evidence and was cross-examined at some length. It was clear that he also found this whole experience, in particularly dealing with the plaintiffs, a very stressful one, and one where he often felt he was in unfamiliar territory. No doubt there were times when, simply because of the passage of time, his memory of certain matters had faded, but my assessment of him was that he was generally doing his best to give an honest recollection of the events that had occurred. In general where there was any conflict between his evidence and the account of either, or indeed both, of the plaintiffs, I prefer his evidence. I do not think I need to make any general findings about the credibility of any other witness.

Applicable law

I recently had something to say about the law in relation to an employer’s duty to take reasonable care to avoid psychiatric injury to an employee in the matter of Palmer v State of Queensland [2015] QDC 63. That decision raised additional issues which do not apply in the present case, but much of what I said in that matter is of general application, and relevant here. I shall repeat those parts that are applicable.

The plaintiffs were employed by the defendant and therefore the defendant as employer owed them a duty to take all reasonable steps to provide a safe system of work. That extended in principle to a duty of care in relation to psychiatric injury as well as in relation to physical injury, but in the former case it is necessary to take care to identify correctly the content of the employer’s duty.[60] The central issue in relation to duty is whether the risk of a particular employee’s sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not farfetched or fanciful.[61]
[60]Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [19].
[61]Ibid at [33].

Whether that was so in a particular case may arise simply because of the nature of the work that the employee was required to do; it is accepted, for example, that work undertaken by police officers and security guards involves a risk of their being exposed to psychiatric injury, because of the risk that they will find themselves in life threatening or other extremely unpleasant situations. It does not follow of course that if such a person suffers psychiatric injury the employer will necessarily be liable; the obligation on the employer is only to take reasonable care to avoid such an injury, which may be simply a matter of putting in place appropriate procedures to minimise the risk.[62] There may well be other occupations where much the same position applies, but even in respect of these occupations the emphasis is on exposure of the employee to the sort of extreme situation where psychiatric injury is more readily foreseeable.
[62]See for example New South Wales v Fahy (2007) 232 CLR 486, where the Court divided on the question of whether the police authorities were negligent in failing to put in place a particular system of work.

On the other hand, the mere fact that an employee has been placed in a situation that the employee finds stressful, because the work is difficult or demanding, or the workload is excessive, has not been regarded as showing without more that it is reasonably foreseeable that the employee will suffer psychiatric injury. This is because many, possibly even most, employees find work difficult or demanding or challenging, so that it would be unrealistic to expect employers to relieve employees from any exposure to stress at work. Many people experience demanding or stressful situations in the course of their employment without developing psychiatric problems. It has been recognised as well that one of the difficulties in formulating the content of a duty of care is that the capacity of a particular individual to cope with stress may be affected by unpredictable personal circumstances, including circumstances not known to the employer.[63]
[63]New South Wales v Fahy (supra) at [4] per Gleeson CJ; Hegarty v Queensland Ambulance Service [2007] QCA 366 at [41] per Keane JA. See also Dr Byth p 10-4, 5.

Although the duty is owed to employees individually, so that an employer must take into account any information specific to a particular employee which could reasonably indicate a particular vulnerability and hence risk of psychiatric injury, in the absence of any relevant information it appears that an employer is entitled to assume that an employee is a person of normal fortitude.[64] On the other hand, it is clear that an employer who has relevant information about a specific employee is not protected from liability merely because the conditions to which the employee was exposed would probably not have caused psychiatric injury to a person of normal fortitude.[65]
[64]This appears to follow from the formulation of the test in Wicks v State Rail Authority of NSW (2010) 241 CLR 60 at [33].
[65]Tame v New South Wales (2002) 211 CLR 317; Koehler (supra) at [35].

Even in an occupation likely to expose employees to particularly stressful situations, there are limits to the extent to which an employer is expected to be alert to the risk of psychiatric injury developing in an employee, particularly in circumstances where there has been no particular indication of the existence of a specific risk in relation to that employee. This is illustrated by the decision of the Court of Appeal in Hegarty v Queensland Ambulance Service [2007] QCA 366. In that case the Court of Appeal overturned a judgment in favour of a paramedic who was found to have experienced a cumulative stress reaction as a result of exposure to multiple traumatic events during 15 years of service.

Keane JA, as his Honour then was, with whose reasons the other members of the Court agreed generally, said at [41]:

“I pause here to observe that this elegant formulation of the plaintiff's case glosses over a number of issues. It must be said immediately that, while an employer owes the same duty to exercise reasonable care for the mental health of an employee as it owes for the employee's physical well-being, special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether a risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension. Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works.”

Given the nature of the work to which a paramedic is exposed his Honour found that there was a foreseeable risk that that work would cause psychological stress and possibly psychiatric injury, but acknowledged that the defendant had taken at least some steps in the early 1990s to deal with that risk. The plaintiff succeeded at trial on the basis that his supervisors ought to have detected that he was in need of professional help to cope with stress and ought to have suggested that to him, but that approach was rejected on appeal by his Honour who seems to have regarded it as putting the standard of care required by an employer at too high a level. His Honour said at [47]:

“In the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in the recent decision of the High Court in Koehler v Cerebos (Australia) Ltd, it was said that a stable appreciation of the content of the employer's duty to take reasonable care is essential; and that it is erroneous to proceed on the assumption that ‘the relevant duty of care [is] sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kind of steps required of an employer.’ Further, ‘litigious hindsight’ must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law's insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee's mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard.”

After some further analysis of the evidence and discussion of the submissions on appeal his Honour said at [89]:

“In my respectful opinion, there is much force in the defendant's principal submission. Bearing in mind the plaintiff's proficiency in his duties, his ambition, his apparent physical problems and his reasonable requests for a transfer from Gayndah, it is difficult to see how a layman in the position of any of the plaintiff's supervisors, even one trained in the manner suggested by Professor Bryant, could have been alerted to discern in the plaintiff's cluster of complaints a ‘signal’ that the plaintiff was not coping with the stresses of his job. It is even more difficult to see the basis on which the defendant's officers could have been instructed to conclude that the only reasonable response to what the plaintiff actually said to his supervisors would have been advice to seek psychological assessment and assistance.”

One area where there can be particular stress in the workplace is where an employee is the subject of humiliating and harassing treatment by a person in a superior position in the structure of authority. Such a case was considered by the New South Wales Court of Appeal in Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471. That case involved a security guard, who was working under the supervision of a person who was not employed by the same employer, so that there were two defendants, the employer of the plaintiff and the employer of the supervisor. In that case the plaintiff had succeeded at trial against both defendants, but the Court of Appeal overturned the finding of liability on the part of the plaintiff’s employer.[66] The liability on the part of the supervisor’s employer was essentially because the conduct of the supervisor was such that he would have been personally liable and the conduct was held to have occurred in circumstances where his employer was vicariously liable for it; indeed, it was said that his position was such that his conduct was able to be identified as the conduct of his employer itself.
[66]By a majority, Beazley JA dissenting.

As to the question, which is more relevant here, of the liability of the plaintiff’s employer, Spiegelman CJ said at [20], [21]:

“The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.
Koehler affirms the line of High Court authority … which focuses attention on the purpose for which the inquiry as to foreseeability is undertaken, namely, to determine what reasonableness requires by way of response and, therefore, whether legal responsibility for the conduct should be attributed to the defendant for the injury to the plaintiff.”

In that matter there was a good deal of evidence as to what was known by various other employees of the plaintiff’s employer as to the way the plaintiff had been treated, but it was held that the knowledge of most of these people could not be attributed to the employer, because of the positions they held. In the case of those employees whose knowledge could be properly attributed to the employer, it was held that what they had seen was not enough to suggest foreseeability of a recognised psychiatric illness, rather than simply suggesting an adverse effect on the plaintiff’s mind. The Chief Justice said at [58], [59]:

“The signs suggestive of psychiatric illness, rather than psychological disturbance, satisfy the not far fetched and fanciful test of foreseeability. However, they do not, in my opinion, reach the level of possibility which would require the employer … to intervene.

Workers are subject to stress in both their working and personal lives which can affect their mental health. Changes in personal behaviour over a period of years may occur for many reasons. So may the response of crying. These responses did not, in my opinion, indicate psychiatric illness to the degree that required a response from the actual or surrogate employer.”

It seems to me that his Honour was there distinguishing between the test for whether there is a duty of care and the content of the duty of care; given that an employer’s responsibility is only to take reasonable care, not absolute care, the mere fact that psychiatric injury is reasonably foreseeable in accordance with the conventional test does not mean that there is necessarily an obligation on the part of an employer to take steps in response, and it is necessary in assessing whether the employer has fallen below the standard of reasonable care to have regard not merely to the foreseeable possibility of psychiatric injury but to the level of risk of such injury.

One of the difficulties facing the plaintiff in that case was there had never been a complaint to the employer about the behaviour of the supervisor. There are two Queensland cases where there was a complaint by an employee to an employer about the behaviour of another employee in a position in authority, where a claim for psychiatric injury succeeded: Wolters v University of the Sunshine Coast [2013] QCA 228; and Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64. The significant feature in each of those cases, however, is that when a formal complaint was made the employer did not follow its own established procedures for dealing with that complaint, and in each case the Court held that if those procedures had been followed it was probable that the psychiatric injury would have been avoided. In circumstances where an employer has itself adopted particular procedures for dealing with misconduct in the workplace, it is generally not difficult to show that a failure to comply with those procedures amounts to a want of reasonable care; in effect the employer is being judged by the standard it has set itself.

The former case, Wolters, is interesting because the trial judge found that psychiatric injury to the plaintiff was reasonably foreseeable as a result of the behaviour of her supervisor, because there had been an earlier occasion when the same supervisor had behaved in a broadly similar way towards another employee and that employee had gone on to develop psychiatric injury as a result, to the knowledge of the employer. This finding was not in issue on appeal, where the issue was as to causation, on which the plaintiff failed at trial but succeeded on appeal. In these circumstances, the decision of the Court of Appeal is authoritative really only on the question of causation, and there was no detailed consideration of other issues.

In the present case of course there had been no formal complaint about the behaviour towards either of these plaintiffs on the part of any supervisor of them, or about similar conduct by any supervisor towards any other employee, nor was there any formal complaint against either plaintiff, although there was at one stage some concern about whether Mr Swindles was properly attending to his duties. I am not aware of any Queensland authority dealing with the investigation of complaints or potential misconduct, but there is intermediate appellate authority in New South Wales dealing with such a situation, and some of the matters referred to in them are of some relevance to a couple of issues here.

The first case is New South Wales v Paige (2002) 60 NSWLR 371.[67] In that case there was formal disciplinary action pursued against an employee of the Education Department in relation to what was alleged to have been a failure properly to perform his duties, and as a result of the way in which the investigation was undertaken the employee suffered psychiatric injury. It was held at trial that the disciplinary procedure had not been properly carried out in accordance with the requirements of the various statutory provisions governing such disciplinary procedures for such employees, and on this basis the employer was liable, but on appeal this was set aside, on the basis that there were administrative law remedies available in circumstances where there had been a failure to comply with the relevant statutory provisions, and that it would be inconsistent with the proper coherence of the law as a whole to impose an obligation on the basis of the law of negligence in a context where administrative law already dealt in a particular way with the rights and obligations of the parties.
[67]This case was cited with approval in Hogno v Racing Queensland Ltd [2013] QCA 139 at [50], [51]. a case where there was no other relevant relationship, so more like Sullivan v Moody (infra), also cited.

In addition, the Court was influenced by the decision of the High Court in Sullivan v Moody (2001) 207 CLR 562. In that case there was a police investigation into suspected sexual abuse of children by the appellants, which ultimately did not lead to any charges being brought, let alone succeeding. The plaintiffs claimed that they had suffered psychiatric injury as a result, but the High Court held that there was no duty of care owed by persons conducting investigations into such matters, on the basis that such a duty would be incompatible with other duties that the respondents owed, and there was the prospect that such a duty of care would give rise to inconsistent obligations on the part of officers and public authorities in such a context.[68] Sullivan was distinguishable on the basis that there was no relevant relationship between those plaintiffs and the authorities conducting the investigation, whereas in Paige there was an employer-employee relationship which would give rise to a duty of care to avoid psychiatric injury, but the New South Wales Court of Appeal essentially treated the considerations of inconsistent obligations, and coherence of the law, as excluding the existence of a duty of care in such a context.
[68]See also Hunter and New England Local Health District v McKenna [2014] HCA 44 where it was held that no duty of care could exist which would be inconsistent with a statutory obligation: [33].

It seems to me of some significance that the matter was not approached on the basis that the coherence of the law required that there be no duty of care which required the employer to act in a way which was inconsistent with the employer’s obligations under the requirements of administrative law. The position seemed to be that, in circumstances where administrative law would give remedies appropriate in that field to, for example, a failure to comply with the requirements of procedural fairness, there would be a lack of coherence if the law of tort also gave a remedy in damages for such a failure. In addition, concern that the proper investigation and pursuit of disciplinary issues might be compromised by the recognition of the need for the employer to exercise reasonable care to avoid relevantly psychiatric injury in such a context was applicable to a relationship of employer and employee as well as to a relationship of law enforcement authority and suspect. Accordingly, it was held in Paige that despite any deficiencies in the disciplinary process, the State was not liable for the plaintiff’s psychiatric injury.

A more recent case involving suspected wrongdoing arose in O’Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7. The plaintiff who was employed as a bookkeeper suffered psychiatric injury as a result of the way he was treated by his employer when the employer suspected him of misappropriating funds. Various things were done to make it more difficult for him to do this if he were doing it, but he was not told anything about the allegations against him or that he was being investigated. In that case the plaintiff failed at trial, and the Court of Appeal by majority dismissed the appeal. The majority considered there was an important distinction between stress and recognised psychiatric illness, and that the fact that an employee was placed under stress did not necessarily mean that a recognised psychiatric illness was reasonably foreseeable. Spiegelman CJ said at [18]:

“The reaction of the appellant to the evidence of suspicion of his conduct and of his progressive isolation was sufficiently idiosyncratic that it could not be said to be reasonably foreseeable that psychiatric injury, as distinct from non-compensable stress, could result from the respondent's conduct. Other considerations, such as vulnerability and control, do not outweigh this factor.”

In that case there was at one stage some investigation of the employee’s condition, and the employer was provided with a certificate indicating a diagnosing of adult adjustment reaction leading to depression. The Chief Justice noted that there was no adequate basis in the evidence for assessing the standard of care, or linking the condition referred to in the certificate with the condition ultimately suffered, for which the plaintiff was suing: [19], [22]. Again in that case the Court held that it did not matter whether there had been breaches of administrative law obligations such as the obligation to accord natural justice, so that such a breach did not mean there had been a breach of a duty of care: [23].

The plaintiff in that case failed notwithstanding criticism by the Court of the behaviour of the employer: Sheller JA, the other member of the majority, said at [57]:

“The behaviour of the defendant as an employer, towards the plaintiff as an employee, in several respects was wrong if not disgraceful. …
…
[63] Undoubtedly, as a result of his experience in the defendant's workplace the plaintiff suffered a recognised psychiatric illness. Undoubtedly, and according to Dr McMurdo's evidence, the defendant should reasonably have foreseen that its conduct would have caused the plaintiff to suffer some form of workplace stress, which indeed he did suffer. …
…
[67] In my opinion, particularly having regard to the limits of the opinion expressed by Dr McMurdo, it was, on the evidence, open to the trial Judge to find that the defendant could not reasonably have foreseen … that a possible consequence of its conduct was that the plaintiff would suffer a recognised psychiatric illness. The plaintiff failed to prove that his injury was compensable. As the trial Judge put it, it was ‘far too remote’. …”

Although that was a case where the psychiatric illness arose in the context where the employee was being investigated, inappropriately, for suspected wrongdoing, this aspect of the matter did not receive a great deal of attention in the majority judgments, though Paige (supra) was referred to by the Chief Justice. The case however is perhaps more clearly an example showing that the mere fact that workplace stress is reasonably foreseeable, with associated mental distress, does not mean that psychiatric injury to the employee is reasonably foreseeable, or at least does not mean that the content of the employer’s duty of care extends to any particular requirement to take precautions to guard against it.

There was another New South Wales case involving allegations of wrongful treatment by an employer giving rise to psychiatric injury where a judgment favourable to the plaintiff at first instance was overturned on appeal: New South Wales v Rogerson [2007] NSWCA 346. That case as it happened involved a police officer, but not one who suffered injury as a result of any particularly dangerous activity or situation that arose in the course of his duties. Rather, his case was that the employer was liable for the psychiatric injury he suffered because it had breached a duty to protect him from discrimination and victimisation arising from the fact that his brother was a disgraced former police officer. The case was based on a series of specific incidents. One of the incidents related to some comments made by a solicitor in the Legal Services Branch who spoke to the plaintiff at a time when it was expected that he would be called before the Wood Royal Commission, and who had asked him about (among other things) his relationship with his brother. The plaintiff became upset at this, but Handley AJA, with whom the other members of the Court agreed, said that the fact that he was visibly upset did not make psychiatric injury reasonably foreseeable: [12]. He also noted at [11] that the remarks were made in good faith and without any awareness of the plaintiff’s special sensitivity about his brother: [11]. Accordingly there was no duty of care in relation to the psychiatric injury.

Another matter that the plaintiff complained about was in relation to a failure to achieve a promotion, but the Court held at [26] that the employer owed him “no duty of care in the administration of the procedures for promotion to commissioned rank”, citing New South Wales v Paige (supra). Another matter he complained about was comments made by a more junior officer in relation to his brother, which was related to the application for promotion. Handley AJA said of this at [31]:

“The Service cannot have a duty to prevent one police officer making hurtful comments to another who is not subordinate to him, or to protect its officers from the consequences of such comments. … It was a one off event. There is no evidence that anyone in the Service knew that such remarks would be made and without advance knowledge nothing could be done to stop [the other officer] making them. … It is not known how [the other officer] came to have this knowledge but the Service can hardly have a legal duty to prevent gossip circulating within its ranks.
[32] The plaintiff did not like [his Inspector’s] response but that does not establish a breach of duty. There was no evidence that it was inappropriate, or that a responsible police officer in that position could and should have done anything more. …
…

[35] In my judgment the Service owed no duty of care to prevent [the other officer] making the remarks he did, nor did it have a duty to investigate the plaintiff’s complaint about those remarks.”

On the last point his Honour cited Sullivan v Moody (supra). There was a further issue relating to the transfer, without warning, of the plaintiff to another unit. In relation to this matter his Honour said at [38]:

“In December 1999 the plaintiff was transferred, possibly without prior discussion or consultation, to the Firearms Trafficking Unit. This was said to have been unwanted and unrequested. The absence of prior consultation, if this did not occur, might demonstrate some lack of sensitivity but that is all. The transfer was calculated to remove the plaintiff from what might reasonably have been thought to be a difficult, if not poisonous, situation in which he was subordinate to [the other officer] in the same branch of the Service.
[39] There was no common law duty of care owed to the plaintiff in this situation, and no breach of such a duty: compare State of New South Wales v Paige.”

Analysis of cases – Ms Lee

In submissions counsel for the plaintiffs formulated the duty owed to the plaintiffs by the defendant generally in absolute terms. That was not the duty which the defendant owed; it was a duty to take reasonable care. The analysis of the position in tort is sufficient; neither side suggested any different result in contract.

In the present case I accept that the duty of care was owed to Ms Lee as an individual and that it was relevant to have regard to any signs given by her which would indicate a risk of psychiatric injury to her. This however has to be assessed by reference to the question of whether any particular act or omission of the defendant gave rise to a reasonably foreseeable risk of psychiatric injury to her at the time relevant to the act or omission, assessed prospectively. In assessing this, it is I think important to realise that this is not a situation where it is alleged that the risk of psychiatric injury arose from some incident or course of events arising from the ordinary work that the plaintiff was doing. Indeed, most of the matters referred to as the relevant events, which the plaintiff found upsetting, were matters for which plainly the defendant was in no way responsible: the note on the car windscreen, the harassing phone calls, the damage to the car, the publication of the book, and the distribution of the leaflet in the letterboxes. It ought not to be necessary for me to point out that the defendant can have no liability for any psychiatric injury which arises as a result of the actions of those for which it is not responsible.

There was no evidence identifying those responsible for most of those matters, and the defendant is not vicariously liable for the actions of the author and publisher of the book. The question of whether the defendant had a duty to take reasonable care to avoid psychiatric injury to the plaintiff depends on the proposition that, at some point, there was a duty on the defendant not to do something which was done by someone for whom it was responsible, or to do something such that the omission to do that thing was a want of reasonable care. For that reason it is unhelpful to consider questions of duty in the abstract; it must be assessed by reference to what was reasonably foreseeable in a particular situation in order to determine what the duty to take reasonable care required of the defendant in that situation.

The plaintiff’s case was based on the proposition that the defendant, by permitting or acquiescing in the advertising of the book at the school, had breached its duty to take reasonable care to avoid causing psychiatric injury to the plaintiff. On the evidence this was limited to the fact that the author’s wife was not prevented from putting up a flyer in the staff room at the school, and from talking about the book and inviting, apparently orally, various staff members to attend the launch of the book. It is not apparent to me that the defendant had any meaningful control over the author’s wife talking about the book or inviting other members of the staff to the book launch,[69] even if the defendant had wanted to do so, but I accept the defendant had the capacity to control whether or not the flyer was stuck up in the staff room. That therefore depends on whether in the circumstances it was reasonably foreseeable that allowing the flyer to be stuck up in the staff room gave rise to a risk of psychiatric injury to the plaintiff.
[69]Peacock p 7-16.

In this context it is relevant to consider that the evidence was that the publication of a book such as this was an extremely unusual event, if not a unique event, in the history of the Department. The principal was unaware of any other example of such a thing (p 7-106), and there was no evidence led before me of any precedent. The person in fact having the relevant authority at the relevant time, the acting principal, would have had no practical experience of any difficulties associated with publication of a book of this nature, that is to say a work of fiction which contained characters which might have been identified as members of the staff of the school. That is not something which I would consider would be identified, at least by a lay person, as giving rise to a foreseeable risk of psychiatric injury to any of the staff, even if it was foreseeable that a staff member might not be pleased by his or her depiction as an identifiable character in the book.[70]
[70]I am aware of the evidence of Dr Varghese. The test is not whether it was foreseeable to a psychiatrist.

I accept that it would be foreseeable that someone who happened to be depicted in what that person regarded as an unfavourable light might be upset and angry as a result of that person’s depiction in the book, but it is necessary to be able to take the further step and show that it was reasonably foreseeable that psychiatric injury, that is the development of an identifiable psychiatric illness, was a reasonably foreseeable consequence of such a move.[71] In this context I think it is important also to bear in mind that the issue is not whether the book was going to be published, but simply whether that publication was to be brought to the attention of staff members by the display of a flyer in the staff room. The plaintiff’s pleading, and indeed argument, was based heavily on the proposition that, had it not been for the ability of the publisher to obtain publicity in this way, the book might well not have been published at all, or might never have become known within the school community. Such an argument is, in my opinion, entirely without logical foundation, or support from the evidence.
[71]Lots of people are defamed without suffering psychiatric injury.

On 15 August 2014 she had a telephone conference with the solicitor, recorded in a diary note: Exhibit 17. When she saw the plaintiff the plaintiff was too unwell to work fulltime and probably to work part-time. She agreed that the plaintiff’s perception of lack of support from the school gave rise to illness and considerable distress, a perceived lack of being validated and heard. If the book had not been promoted to the school community or the school had taken steps to limit its audience within the school community it is possible that the plaintiff’s illness may have been of shorter duration or been milder or not occurred, although it was difficult to say because Dr Sugars only came to treat her in 2013. She referred to the plaintiff’s reports of prolonged gossiping and innuendo within the school environment and the stress arising from that, something obviously not under the control of the defendant. She thought that her underlying personality vulnerabilities made it more difficult to treat her condition, and that the move to America was an anxiety response. Her difficulties in teaching in America were consistent with her presentation to Dr Sugars.

In oral evidence Dr Sugars confirmed this was a diagnosis of depressive illness: p 3‑31. Dr Sugars considered that the plaintiff had a number of personality vulnerabilities including extreme sensitivity to criticism, rejection, abandonment, intense fear of inner emptiness, difficulty with regulating her emotion when stressed and becoming very overwhelmed; she did not think that these ever reached the point of a disorder: p 3-31. She said that it was possible that as a result of those personality features the plaintiff may view certain events in her life in a particularly adverse way: p 3-34. Someone like the plaintiff would view events from a perspective influenced by past experiences and therefore interpret things in a way that is in keeping with those experiences: p 3-35. A feature of the borderline personality trait could be a tendency to see things only from one’s own point of view and not to be able to see any other point of view: p 3-38. The personality vulnerabilities made the depression worse, and increased the risk of developing such an illness: p 3-32. This could apply to any stressful situation. She hoped that the end of the litigation would improve her treatment prospects but she thought she would probably never go back to fulltime work: p 3‑33. She was however more optimistic about work other than teaching.

Overall it appears to me that the effect of the medical evidence is that the plaintiff had longstanding psychiatric issues and personality vulnerabilities, which rendered her susceptible to psychiatric injury in the event of stressful situations arising. There were between 2006 and 2010 a series of stressful situations, for most of which the defendant was not responsible. On the findings I have made, the defendant is not liable in respect of any of them, but I can only assess damages in respect of those matters alleged to have been the responsibility of the defendant, the publicising of the book within the school, and the failure to remove the author’s wife promptly from the school at the beginning of the 2009 school year. These were obviously not the only stressful events, but I accept Dr Arthur’s evidence that the plaintiff’s psychiatric problems arose from a combination of all of the stressors, including those.

It does seem to me however very likely that, if those events had not occurred, the other stressful events would have caused difficulties for the plaintiff anyway. The plaintiff’s psychiatric problem probably ended up more severe than they otherwise would have, though I have no real guidance in the medical evidence as to the extent of that additional severity. There is also a further consideration, that the matters alleged to have been negligent all had occurred in or before early 2010. It seems clear that the plaintiff’s condition was improving in 2010, to the point where her WorkCover claim was brought to an end in late 2010, apparently on the basis of psychiatric opinion that she had recovered and was fit to work. That appears to be the effect of the opinions of Dr Arthur and Dr Varghese, that by the time they saw the plaintiff her condition was improving, and there was only limited impairment in function. The plaintiff moved to another school, and there was no evidence that there were any particular difficulties associated with her teaching there. Nevertheless, she reduced her workload to part-time at that school, and then voluntarily left it in order to move to America.

It appears that her condition deteriorated again after 2011. Dr Sugars is appropriately reluctant to comment on the extent to which particular events in the past were causing her problems in 2013,[104] and in the circumstances I am not persuaded that the further deterioration which apparently occurred between 2011 and 2013 was simply a progression of the condition caused by the various stressful factors including those matters where it is alleged the defendant was negligent. The change from improvement before November 2011 to deterioration after then is unexplained, and has not been shown to be due only to the pre‑existing causes and her underlying personality. It follows that, to the extent that the plaintiff was more severely effected in 2013, to the point where this interfered with her ability to work as a teacher, in my opinion the plaintiff has failed to prove that this deterioration was caused by the defendant’s negligence. It may have been caused by the reaction to the close of the WorkCover claim, where the plaintiff refused to accept that she really had recovered, her reaction to her no longer being able to consult a particular psychologist, or some other undisclosed event, for none of which the defendant is responsible.
[104]She had only ever seen the plaintiff for treatment, not to investigate in a medico-legal context the matters relevant to this proceeding.

In these circumstances, overall the plaintiff suffered an episode of depression which was in remission after about 12 months, but with some permanent exacerbation of her longstanding psychiatric problems, and it is probable that the plaintiff would have suffered most of these difficulties in any event. I have referred to some examples of other awards of general damages in Palmer v State of Queensland (supra) and will not repeat what I said of the other decisions there. All of those cases involved psychiatric injuries which were significantly more serious than that suffered by the plaintiff. Overall, I assess damages for pain and suffering and loss of amenities at $16,000, of which I apportion $10,000 to the past.

With regard to economic loss, there were periods in 2009 and 2010 when the plaintiff was unable to work because of her psychiatric problems, but once the WorkCover claim was terminated in my opinion the plaintiff was again fit to work. This is shown by the fact that once she moved to the other school she was apparently able to work satisfactorily. The reduction from fulltime to part-time may well have been associated with the deterioration in 2011 in her psychiatric state, caused by matters which were not the responsibility of the defendant, and that appears also to apply to the further deterioration since 2011. The evidence shows the plaintiff had a notional income between 11 June 2009 and 30 June 2011 of $121,476.66, and an actual income disregarding payments from WorkCover of $93,193.68, a loss of $28,282.98. I am not persuaded that any inability to work after that time has been caused by the matters in respect to which it is alleged the defendant was liable.

I accept however on the basis of Dr Arthur’s evidence that there was some relatively small lasting functional impairment. The practical effect of this are that her underlying psychiatric difficulties had been exacerbated, and that is likely to make her more susceptible to flare ups than she was anyway. She was always vulnerable to psychiatric problems, in particular depression, in the event of being confronted with stressful situations, and that has been exacerbated by the overall effect of events since 2006, including the matters for which the defendant is alleged to have been responsible. To some extent therefore one can expect there will be more and worse difficulties in the future than what otherwise would have been the case, on the hypothesis on which I am assessing damages. This can only be assessed on a global basis, taking into account that the plaintiff had probably had about 20 years’ working life available to her otherwise, and that damages should be assessed by reference to a current notional earning capacity of the order of $75,000 net per annum. I assess future economic loss on a global basis at $80,000.

Special damages were claimed but on the basis that all of the medication costs and medical and travelling expenses incurred to date were the responsibility of the defendant, which I do not accept. All I can do is make a fairly rough and ready apportion, and I allow $2,500 for out of pocket special damages. The relevant special damages would have been incurred in the period from early 2009, and I allow interest of five years at 8% on those special damages, as for other past losses. There is also a Medicare refund of $1,969.55, and medical expenses and rehabilitation expenses covered by WorkCover totalling $13,758.50. A large amount was claimed for future treatment and pharmaceuticals and so on, based on the proposition that essentially all of the plaintiff’s psychiatric care from now was the responsibility of the defendant. This appears to have been increased by the cost of providing this in the United States, something for which I do not think the defendant is responsible. I accept that there would have been some future medical and pharmaceutical costs anyway, but doing the best I can I would allow a global figure of $5,000. There is a Fox v Wood factor of $9,388.27. The amount deductable as the WorkCover refund does not appear to have been proved, so all I can do is make a gross precautionary assessment.

Accordingly my precautionary assessment of quantum can be summarised as follows:

(a)

General damages

$16,000.00

(b)

Interest on $10,000 (5 years at 8%)

$4,000.00

(c)

Past economic loss

$28,282.98

(d)

Interest on past economic loss

$11,313.19

(e)

Loss of past superannuation

$3,393.96

(f)

Future economic loss

$80,000.00

(g)

Fox v Wood

$9,388.27

(h)

Special damages

$18,228.05

(i)

Interest on out of pockets

$1,000.00

(j)

Future expenses

$5,000.00

TOTAL

$176,606.45

Quantum – Mr Swindles

The plaintiff was born on 13 March 1964, and is now 51. Ordinarily one would expect him to have a further working life of 10 to 15 years. Mr Swindles continued to work until September 2010, but he had consulted a general practitioner for anxiety in early 2009, and, after some other investigations, it was suggested that he was suffering depression and was prescribed antidepressants: p 3-17. Subsequently he must have had a very difficult time being with Ms Lee and coping with her strong emotional reactions to the various things that were happening, until they separated in May 2010. He said he became very upset about things that some people said to him at work in 2010, and that when he was asked to change his lunch hour he became upset and angry, and felt that he could no longer work safely and stopped work. He went to a psychologist and to a different general practitioner, and continues to take anti-depressants: p 3-81. He described the psychologist’s treatment as very helpful, but it does not seem in practice to have actually improved his condition.

He was then referred to a psychiatrist, and she changed his medication which again he said he found helpful, though again it does not appear to have had a very positive outcome because he was complaining still of bad dreams and just sitting around being miserable during the day: p 3-82. He was given some alternative employment in a nursing home, but he became upset because one of the residents was watching him, which he found upsetting, and at about this time he was also becoming very concerned about being watched at his home, and reluctant to go out of the home: p 3-83.[105] On one occasion he was asked about restoring a piece of furniture but he claims he was too upset and anxious to be able to do that. At one time he began doing some part-time work at a church, and he seemed initially to cope with that until he was asked to increase his hours, when again he became anxious and could not cope: p 3-85. It was on his initiative that the move was made to America, to get right away from the source of anxiety: p 3-87. It does not appear however this has led to sufficient improvement for him to return to work.
[105]This may well not have been entirely delusional on his part; apparently at some stage WorkCover were checking up to see whether he was really working, no doubt the sort of thing they do from time to time.

The plaintiff was seen by Dr Varghese, psychiatrist, on 12 October 2011 for the purposes of a report to the solicitors of the defendant: Exhibit 90. Dr Varghese expressed the view that the plaintiff had probably begun with an adjustment disorder but had major depression by the time he stopped work in September 2010, though that was then in remission, and he was suffering a mild anxiety depressive state with some avoidance. He considered there was a prospect of further improvement in his condition with further treatment. At that stage the plaintiff was working in host employment and performing satisfactorily, and Dr Varghese was of the opinion that there was no continuing psychiatric impairment and that the plaintiff was able to return to work for which he was qualified. He expected full resolution of his condition within six months and after the medico-legal issues had been completed. At that stage Dr Varghese detected no evidence of psychosis.

Subsequently Dr Varghese was provided with some additional medical information, and noted that the plaintiff was being treated with antidepressants prior to the publication of the book, which had improved his symptoms suggesting some pre‑existing depression: Exhibit 91. Dr Varghese also referred to tests of thyroid function suggesting some abnormality which was also treated with medication, noting that this could predispose a person to depression.

Dr Varghese had a conference with counsel for the plaintiff on 24 August 2014 and some notes of additional matters concerning Mr Swindles were recorded in Exhibit 94. Dr Varghese expressed the view that having the book promoted to the school community so as to create an audience for it within that community would have had an impact. He thought that, in relation to having the author’s wife removed from the school, a perception of a lack of support from the authorities would have had an adverse effect on him. He did not think that Mr Swindles had pre-existing personality vulnerabilities, but the long term effect may be a residual of the original depression. The trauma from the promotion of the book to the community left him vulnerable to having a stronger reaction when he became aware of the flyer. Dr Varghese thought that the move to America might be prompted by his anxiety reaction, though such a move usually does not cure or reduce the anxiety. He thought Mr Swindles’ anxiety symptoms were more disabling than Ms Lee’s.

The plaintiff was seen by Dr Arthur, psychiatrist, on 11 November 2011 for the purposes of a report to the plaintiff’s solicitors: Exhibit 21. Dr Arthur diagnosed adjustment disorder with mixed anxiety and depression which was said to be chronic, and thought there were mild to moderate symptoms and impairment in role functioning. He thought it was possible that the plaintiff may have fulfilled the criteria for major depression at some stage in the past but considered that an adjustment disorder was a more appropriate diagnosis. He did not fulfil the criteria for post-traumatic stress disorder. The situation was said to have been complicated by Ms Lee’s psychological response to the situation, a perception that his employer had not taken their concerns seriously, and that he and Ms Lee had continued to be lampooned and criticised by others. He was also distressed by the failure of the police to identify and take action against the persons responsible for what he identified as stalking. He thought the plaintiff required ongoing psychiatric and psychological treatment, including a review of his medication by a psychiatrist. He was guarded about prognosis, noting some gains over the last 12 months although there were some residual symptoms. He assessed 7% to 10% of permanent impairment, assuming there was no significant improvement in the future.

Dr Arthur spoke to the plaintiff’s solicitor on 15 August 2014: Exhibit 22. Dr Arthur felt that if the school had not allowed the book to be publicised and promoted it might have either stopped an injury being suffered or the severity of the injury might have been reduced. He also spoke about the effect of the book being accepted in school libraries, and if it had had less of an audience within the school community, neither of which were relevant on the view that I take of the facts. He also spoke about the school allowing the book to be advertised and promoted in the local area, and there was no evidence of that. He thought the fact that immediate action was not taken in respect of the author’s wife had a significant impact on the plaintiff because this was perceived by him as passive support for what she had done. He also spoke about the events leading up to his ceasing work in a way which is inconsistent with my findings as to what occurred. Dr Arthur did not in the mental state examination make any reference to paranoia.

Dr Arthur in cross-examination was taken through records from the general practitioner about complaints of psychological symptoms prior to the publication of the book, but he was reluctant to diagnose depression or indeed anything in particular on the basis of those symptoms: p 3-59. The most he would say was that the plaintiff was at that time having some emotional issues. He agreed that Ms Lee’s behaviour would have been a stressor for the plaintiff, and did not doubt that he was struggling with this, but this was in addition to the effect of the release of the book on him personally: p 3-61. It was not possible to identify any particular stressor or a combination of stressors as precipitating the psychiatric illness. Dr Arthur did at p 3‑64 concede that the plaintiff had symptoms of anxiety after 2006 which fluctuated, and thereafter the condition evolved so that it was difficult to say when it started or became evident, but it was evident in 2010 when he sought psychological treatment though it had probably been present for years prior to that, and what was experienced in 2010 was an exacerbation of those symptoms. If the psychological condition was present for years prior to 2010, that seems to indicate that it was present before the publication of the book, and that and the subsequent events simply exacerbated it.

Dr Arthur did speak of an understanding that the book had depicted the plaintiff as a pervert and an undesirable character, and a significantly defamatory way: p 3-61. That may be an accurate reflection of the plaintiff’s reaction to the book, which appears to have been influenced by the notion of some connection between the contents of the book and the note that was found on the windscreen in 2006, but I do not consider that that is a realistic objective assessment of the likely effect of the book itself. I do not think there would have been many people who would as a result have identified the plaintiff as the groundsman depicted in the book, and would have gone on to draw the conclusion that the plaintiff was a significantly undesirable character or one who had a perverted interest in young girls. It seems to me that Dr Arthur, who had not read the book, was acting on a seriously distorted impression of its significance put forward by the plaintiff.[106]
[106]See also p 3-62.

It also seemed to me that from Dr Arthur’s comments under cross-examination that the plaintiff was focused on his perception of the effect that the book had on people who knew him in the school community, rather than the specific issue of the failure to ban the promotion of the book within the school. He did however come back to what he described as the book being made available, being advertised and people be made aware of it in the workplace: p 3-63. Again, that overstates the factual situation: the book was not particularly being made available in the sense that it was being sold or lent to people at the school, and it was not being promoted generally to parents within the school. It was possible for a parent to have come into the staff room and to have seen the flyer in the staff room, but the evidence of this spoke of it as a possibility rather than as something which was likely to have happened in great numbers.[107] There was no suggestion of any more systematic move to bring the book to the attention of parents at the school, at least conducted through the school. Again it seems that Dr Arthur formed this opinion on the basis of an unreliable understanding of the factual situation, because of what he was told by the plaintiff.
[107]Peacock p 7-17; Warland p 5-59; Conley p 6-5; Flynn p 5-78.

The difficulty I have with the assessment of this plaintiff is that it appears that, after he was seen by the two reporting psychiatrists in 2011, he has not been seen by any psychiatrist whose opinion is before the court. At that time he appeared to be making reasonably good progress, and his symptoms appeared to be reasonably well‑controlled. He was coping with somewhat undemanding work, and presumably had been cleared medically to increase his work level. He still had some symptoms, but he appeared generally to be improving and to be coping reasonably well. The psychiatrists differed as to the extent of the continuing impairment, and as to the prognosis, but not that dramatically. However the plaintiff’s condition appears thereafter to have significantly deteriorated, for reasons that are not explained by the medical evidence. In addition, the plaintiff appears to have developed significant symptoms of paranoia, which were not detected by the psychiatrists who saw him in 2011,[108] yet that seems to be now the most disabling aspect of the plaintiff’s current problems. In those circumstances there is really no justification in the medical evidence for the plaintiff’s complaints as to the current severity of his psychiatric condition. The deterioration is unexplained, and has not been shown to be due to the matters affecting him in 2011, rather than a reaction to subsequent events for which the defendant is not responsible.
[108]Dr Varghese said so expressly, and Dr Arthur did not mention symptoms of paranoia.

I consider the position with Mr Swindles is similar to that of Ms Lee: the matters complained of were on the medical evidence a cause of the psychiatric state that ultimately developed, but given the other stressors it is very likely that he would have developed a psychiatric condition in any event as a result of matters for which the defendant was not responsible, and damages are properly assessed to reflect the possibility that his condition would not have been as severe had the matters for which the defendant is alleged to have been responsible not occurred. I think it highly unlikely that there would have been no injury in those circumstances, in the light of various things that happened, and that the various possibilities are appropriately taken into account by assessing damages on the basis that the plaintiff’s condition was somewhat worse than it would otherwise have been, but not dramatically worse. There is also the consideration that the plaintiff has not shown that the deterioration in his psychiatric state after 2011 when he was seen by the psychiatrists was not attributable to extraneous factors. I note the psychiatrists’ opinion that Mr Swindles’ psychiatric impairment was greater than Ms Lee’s,[109] and in all the circumstances would assess general damages at $20,000, of which $10,000 is attributed to the past.
[109]My impression of the plaintiffs in the witness box was to the contrary, with Mr Swindles giving no sign of emotional distress except at p 5-40, even when I would expect it: p 5-49. But I defer to the experts.

With regard to economic loss, at the time of the psychiatric assessment the plaintiff was able to do some part-time work, and Dr Varghese was of the opinion that he was at that stage not impaired to the point where he was unable to work normally. That opinion was controversial at the time, but the effect of the expert evidence is that, as at the end of 2011, the plaintiff’s psychiatric problems did not prevent him from working at all, and the plaintiff has not shown that his subsequent deterioration was not caused by supervening events rather than simply a spontaneous deterioration of the psychiatric condition that he had in late 2011. Further, to the extent that the plaintiff’s working capacity was impaired by his psychiatric state in 2011, it is highly likely that, had the matters allegedly due to negligence on the part of the defendant not occurred, the other stressors would have produced a psychiatric state which would have caused some impairment to his earning capacity at that time in any event. The position therefore is that in my opinion the defendant is only liable for part of his past loss of income. This cannot be precisely calculated. The amount claimed for past economic loss, effectively the whole loss of income from February 2010 until October 2014, came to just under $140,000, but most of that in my opinion was not attributable to the matters alleged to have been negligent. Doing the best I can I would assess past economic loss on a global basis at $40,000, and I would allow an additional 12% for past loss of superannuation benefits. Interest on the past loss should be allowed for four years at 8% per annum, to reflect the fact that the compensable loss essentially occurred in 2010 and soon afterwards.

With regard to future economic loss, again I do not accept that the plaintiff has been rendered effectively unemployable by anything for which the defendant is alleged to have been responsible. I do not consider the plaintiff has shown more than that he was at increased risk of psychiatric problems, or perhaps worse psychiatric problems, in the future as a result of those actions, for which a global allowance should be made. His earning rate appears to have been a good deal more modest than that of Ms Lee, and accordingly I would assess damages for future economic loss in his case on a global basis at $50,000. Given the way in which this is calculated I will not allow a further amount for the loss of future superannuation benefits.

Special damages include an amount refundable to Medicare (Exhibit 26) of $6,447.80 and expenses covered by WorkCover which are agreed in the amount of $24,223.36. There is also a Fox v Wood factor of $16,445.30. Other out of pocket special damages are claimed in the form of pharmaceutical expenses (Exhibits 24 and 25) and travelling and parking expenses, and some gap medical expenses, in a total of about $3,500. Consistent with my earlier findings, I am not prepared to allow the full amount of this, but will allow for out of pocket expenses the sum of $1,500. These carry interest at 8% per annum for four years. Again a large amount has been claimed for future medical treatment and pharmaceutical care and the like. Consistent with my earlier approach, I consider that only a small part of this should be allowed, and I make an allowance on a global basis of $10,000. The amount deductable as the WorkCover refund does not appear to have been proved, so all I can do is make a gross precautionary assessment.

Accordingly my precautionary assessment of quantum in the case of Mr Swindles can be summarised as follows:

(a)

General damages

$20,000.00

(b)

Interest on $10,000 (4 years at 8%)

$3,200.00

(c)

Past economic loss

$40,000.00

(d)

Interest on past economic loss

$12,800.00

(e)

Loss of past superannuation

$4,800.00

(f)

Future economic loss

$50,000.00

(g)

Fox v Wood

$16,445.30

(h)

Special damages

$32,171.16

(i)

Interest on out of pockets

$480.00

(j)

Future expenses

$10,000.00

TOTAL

$189,896.46

For the reasons given earlier however in each matter there will be judgment for the defendant. I assume costs will follow the event.

CITATION:	Lee & Anor v State of Queensland [2015] QDC 83
PARTIES:	BARBARA ELAINE LEE (plaintiff) and STATE OF QUEENSLAND (defendant) and PAUL JOSEPH SWINDLES (plaintiff) and STATE OF QUEENSLAND (defendant)
FILE NO/S:	D2609/12; D4001/12
DIVISION:
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	16 April 2015
DELIVERED AT:	Brisbane
HEARING DATE:	25-29 August, 7-9 October, 7 December 2014
JUDGE:	McGill SC DCJ
ORDER:	Judgment for the defendant in each matter.
CATCHWORDS:	EMPLOYMENT LAW – Injury to employee – psychiatric injury – whether duty of care – whether breach – whether causation – damages assessed. Hegarty v Queensland Ambulance Service [2007] QCA 366 – applied. Howl at the Moon Broadbeach Pty Ltd v Lamble [2014] QCA 74 – cited. Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64 – cited. Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 – cited. Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 – considered. New South Wales v Fahy (2007) 232 CLR 486 – cited. New South Wales v Lepore (2003) 212 CLR 511 – cited. New South Wales v Paige (2002) 60 NSWLR 371 – considered. New South Wales v Rogerson [2007] NSWCA 346 – applied. O’Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 – considered. Palmer v State of Queensland [2015] QDC 63 – cited. Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486 – applied. Sullivan v Moody (2001) 207 CLR 562 – cited. Tame v New South Wales (2002) 211 CLR 317 – cited. Vairy v Wyong Shire Council (2005) 223 CLR 422 – applied. Wicks v State Rail Authority of NSW (2010) 241 CLR 60 – cited. Wolters v University of the Sunshine Coast [2013] QCA 228 – considered.
COUNSEL:	CC Heyworth-Smith and SD Anderson for the plaintiffs GW Diehm QC and JM Rosengren for the defendant
SOLICITORS:	Shultz Toomey O’Brien Lawyers for the plaintiffs Crown Solicitor for the defendant

(a)	General damages	$16,000.00
(b)	Interest on $10,000 (5 years at 8%)	$4,000.00
(c)	Past economic loss	$28,282.98
(d)	Interest on past economic loss	$11,313.19
(e)	Loss of past superannuation	$3,393.96
(f)	Future economic loss	$80,000.00
(g)	Fox v Wood	$9,388.27
(h)	Special damages	$18,228.05
(i)	Interest on out of pockets	$1,000.00
(j)	Future expenses	$5,000.00
TOTAL	$176,606.45

(a)	General damages	$20,000.00
(b)	Interest on $10,000 (4 years at 8%)	$3,200.00
(c)	Past economic loss	$40,000.00
(d)	Interest on past economic loss	$12,800.00
(e)	Loss of past superannuation	$4,800.00
(f)	Future economic loss	$50,000.00
(g)	Fox v Wood	$16,445.30
(h)	Special damages	$32,171.16
(i)	Interest on out of pockets	$480.00
(j)	Future expenses	$10,000.00
TOTAL	$189,896.46