McCabe v Brotherhood of St Laurence (Ruling)

[2011] VCC 1423

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-09-01218

DENELDA ALICE McCABE	Plaintiff
v
BROTHERHOOD OF ST LAURENCE	Defendant

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JUDGE:	HER HONOUR JUDGE KINGS
WHERE HELD:	Melbourne
DATE OF HEARING:	29-31 August and 1, 2, 5-9, 12-16, 19-23 and 26 September 2011
DATE OF RULING:	5 December 2011
CASE MAY BE CITED AS:	McCabe v Brotherhood of St Laurence (Ruling)
MEDIUM NEUTRAL CITATION:	[2011] VCC 1423

RULING

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Catchwords: CIVIL TRIAL – Motion for judgment non obstante veredicto – motion dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram with	Melbourne Injury Lawyers Pty Ltd
Mr G Worth
For the Defendant	Mr D Brookes SC with	Hall & Wilcox
Mr R Kumar
HER HONOUR:

1          In this proceeding, the defendant indicated that it would exercise its right to move for judgment, notwithstanding the jury’s verdict in the proceeding, which was opposed.

2          Subsequently, on 26 September 2009, the jury returned a verdict in favour of the plaintiff, and the defendant now moves for a judgment, notwithstanding that verdict.

3          The circumstances giving rise to the proceeding may be summarised as follows:

• The plaintiff was employed by the defendant from 16 August 1994 until she ceased work on 2 January 2000 and formally resigned on 21 February 2000.

• The plaintiff was employed as a personal care attendant with the defendant at a hostel for the elderly called Sambell Lodge, in Clifton Hill.

• The plaintiff’s duties were to provide overnight care to approximately forty-three residents who were housed in a three-storey building. She worked four nights a week, from 9.30 pm to 7.00 am, alone.

• The evidence was that the plaintiff suffered an injury at work on 19 September 1999 when she confronted a burglar in the manager’s office. She was terrified and left the office. She believed she was being followed and ran to the residents’ lounge, which she could lock from inside. The locks had been removed from the doors, so she ran into one of the resident’s rooms, locked the door and rang triple-zero. She felt she placed the resident at risk as well as herself. She suffered a psychiatric injury as a result of that event. Prior to that event, she had not suffered a psychological or psychiatric condition.

• The plaintiff informed the manager, Ms Hossack, of the incident. The plaintiff sought counselling and was advised to take a week off work, which she did.

• The plaintiff returned to work.

• The plaintiff’s claim was that between 20 October 1999 and 31 December 1999, and 31 December 1999 and 1 January 2000, she suffered an aggravation of a pre-existing psychiatric injury because of the defendant’s negligence. These dates are significant, because prior to 20 October 1999, there was a period where there was no Common Law right to sue for negligence arising from a workplace injury.

4          The evidence for the plaintiff was:

• She was hypervigilant, checking and making sure the premises were secure. She brought doweling to work to secure doors and windows. She brought four motion detectors to work, which she installed to secure doors, other than the front door. She brought her two dogs to work to accompany her. She made complaints to her supervisor about the lack of security. There were no changes to the system of work by the defendant.

• The plaintiff sought treatment from a counsellor, psychologist and her general practitioner.

• She told Ms Hossack that she was receiving counselling from a counsellor. She requested a claim form to recover the cost of the treatment from her general practitioner and from a psychologist.

• She was taking anti-depressant medication and between the period of 19 September 1999 and 31 December 1999, she had various periods off work – up to twenty days of sick leave. Apart from days off, the plaintiff remained at work.

• The plaintiff said she had not been informed by her manager of any measures the defendant was implementing in respect to the concern within the community regarding 31 December 1999 (the envisaged Millennium Bug).

• The plaintiff had been away from work for a couple of days when she returned to work on 31 December 1999 at 9.30 pm, the night of the Millennium Bug. She found a notice signed by the manager pinned to the notice board, informing her as to what was to occur in the event of a power failure. The notice said there was a generator at the rear of the kitchen freezer; power leads were in the manager’s office; fuel was in the garden shed and there was a reference to a power board. There was evidence that the generator would only power an electric toaster. The plaintiff had never operated a generator and had received no training in its operation. The plaintiff only worked at night. She did not know the location of the garden shed. The plaintiff was terrified of the situation in which she was placed. She was aware of the preparations that other employers had undertaken in respect to the Millennium Bug.

• The plaintiff contacted her manager and told her she did not know how to operate the generator; did not know where the garden shed was, and sought assistance. The manager’s response was, if she could not cope, she should quit, and hung up.

• The plaintiff was so concerned that she rang her husband, who attended her workplace and assessed the situation. He sat with her for the duration of the shift. She remained anxious in case her husband had to leave.

• From the plaintiff’s perspective, having regard to the measures taken by the employer, the attitude of the manager, the fears for the safety of the residents and herself and her inability to respond, resulted in a major psychiatric deterioration on that night, which has continued to this day.

The Defendant’s Submission

5          The defendant acknowledged that at all material times it owed to the plaintiff a duty of care by reason of its relationship of employer-employee. It was the defendant’s submission that there was no case to answer on the breach question. The defendant submitted that:

“5.1	the evidence disclosed that the plaintiff did not complain that remaining at work was affecting her mental health;
5.2	in the context where there had been no complaint that remaining at work was affecting the plaintiff’s mental health, insistence upon performance of a contract, that is remaining at work at night, cannot be a breach of the duty of care.”

6          The defendant relied upon paragraphs [29] and [41] of Koehler v Cerebos (Australia) Ltd:[1]

[1] (2005) 222 CLR 44

“[29]	Although, in this case, the agreement to perform the work has only the limited significance we have indicated, that is not to say that, in another case, an employee's agreement to perform duties whose performance is later found to be a cause of psychiatric injury may not have greater significance. An employer may not be liable for psychiatric injury to an employee brought about by the employee's performance of the duties originally stipulated in the contract of employment. In such a case, notions of ‘overwork’, ‘excessive work’, or the like, have meaning only if they appeal to some external standard. (The industry evidence adduced by the appellant was, no doubt, intended to provide the basis for such a comparison and, as noted earlier, the Commissioner drew a comparison of that kind by concluding that the appellant's workload was excessive.) Yet the parties have made a contract of employment that, by hypothesis, departs from that standard. Insistence upon performance of a contract cannot be in breach of a duty of care.
. . .
[41]	The conclusion that the employer had no reason to suspect that the appellant was at risk of psychiatric injury is the reason upon which the Full Court's conclusion hinged. Here there was no indication (explicit or implicit) of any particular vulnerability of the appellant. As noted earlier, she made many complaints to her superiors but none of them suggested (either expressly or impliedly) that her attempts to perform the duties required of her were putting, or would put, her health at risk. She did not suggest at any time that she was vulnerable to psychiatric injury or that the work was putting her at risk of such an injury. None of her many complaints suggested such a possibility. As the Full Court said, her complaints may have been understood as suggesting an industrial relations problem. They did not suggest danger to her psychiatric health. When she did go off sick, she (and her doctor) thought that the illness was physical, not psychiatric. There was, therefore, in these circumstances, no reason for the employer to suspect risk to the appellant's psychiatric health.”

The Plaintiff’s Submission

7          In response, it was submitted on behalf of the plaintiff that:

7.1.  The defendant cannot succeed as a matter of law upon the motion. The
ratio of Koehler is to be found in paragraph [33]:

“… The central inquiry remains whether, in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.”

7.2. It is important to have regard to the issue estoppel, not only is the plaintiff’s employment in the period after 20 September 1999 and over the 31 December 1999 to 1 January 2000 period a significant contributing factor to a permanent psychiatric impairment, but those periods were also found to be an aggravation, exacerbation or deterioration of a pre-existing mental or psychiatric injury resulting from an encounter with an intruder on 19 September 1999;

7.3. The plaintiff was already suffering from the symptoms of Post-Traumatic Stress Disorder by 20 October 1999, being the time at which the cause of action commences. Thus, at the time of the “central inquiry” required by Koehler, commencing on 20 October 1999 and lasting to 1 January 2000, the plaintiff was already suffering a recognisable psychiatric illness. The recognisable psychiatric illness relied upon for the purposes of Koehler in the present case is an aggravation of that pre-existing condition;

7.4. The defendant’s submission that “the risk of recognisable psychiatric injury could only come from knowledge that the plaintiff was having counselling outside work and she was taking precautions regarding security after 20 October 1999” is flawed and ignores much of the evidence going to the defendant’s knowledge of the foreseeable risk.

7.5.

The defendant had knowledge of the plaintiff’s condition, including:

(a)	The knowledge of Ms Hossack, a trained Division 1 Nurse, that the plaintiff had already suffered “dreadful shock” or a major trauma or a trauma, and that the plaintiff had received counselling for this. The plaintiff gave evidence that she handed Exhibit C to Ms Hossack, or may have placed it on the notice board;
(b)	The uncontested evidence that the plaintiff had told Ms Hossack of attending Dr Sia;
(c)	Ms Hossack knew that the plaintiff was bringing her dogs to work because she was concerned about working at night;
(d)	Ms Hossack did not recall the use of dowel; however, the defendant admitted such in Answers to Interrogatories;
(e)	The offer on the part of Ms Hossack of counselling. Exhibit E confirms her knowledge of the plaintiff’s psychological vulnerability;[2]
(f)	The failing memory of Ms Hossack did not, on balance, deny the plaintiff’s recollection that Ms Hossack had seen her using a motion detector;
(g)	Ms Hossack said that she was concerned for the plaintiff;[3]
(h)	Ms Hossack said that she was aware of the plaintiff’s concern regarding intruders entering via the sliding doors;[4]
(i)	Exhibit K, the plaintiff’s letter of resignation dated 21 February 2000, is a contemporaneous document which appears to be premised on accepted knowledge of the defendant – viz “as you are aware” and refers specifically to “stress level and continual security problems”. There was no evidence to contradict the plaintiff on this aspect;

[2]             See Transcript (“T”) 168, L7-25

[3]             See T 161, L23

[4]             See T 163, L24 – T 164, L3

7.6. The defendant also had knowledge of matters that it was reasonably

foreseeable could aggravate that psychiatric condition, in the sense of
not being far fetched or fanciful, including:

(a)	Ms Hossack, after initially denying that the plaintiff had telephoned her on 31 December 1999,[5] later conceded that such telephone call quite possibly occurred.[6] The Court should accept that the purpose of the call was to seek adequate manual assistance (irrespective of what Ms Hossack’s response may have been) and this is supported by the fact that the plaintiff immediately sought such assistance from her husband;
(b)	Ms Hossack described the Millennium Bug preparation as “chaotic”.[7] Ms Hossack knew the potential for things to go wrong and was relieved that nothing had happened;[8]
(c)	It was not disputed that Exhibit J (the notice) was designed for the plaintiff as she was the only person on duty. It was not in dispute that the plaintiff did not know how to operate the generator and received no training or instruction in its operation; did not know where the garden shed was in order to obtain fuel for the generator; was unaware that the generator was to power the cooler; had received no training or instruction in connection with the generator;
(d)	The defendant was aware that it needed to ensure the plaintiff knew how to use the generator;[9]
(e)	Repeated internal memorandums that the defendant would require additional staff[10] were ignored and the plaintiff was left to work alone on 31 December 1999, whereas she had expected additional staff to be present;[11]
(f)	The evidence of Mr Sloane to the effect that:
• the generator was for use of powering the cooler; • Mr Sloane was to be called to connect it; • there was a wireless nurse call system which would operate independently of power; • that Sambell Lodge Hostel had fire-resistant walls; • that the fire panel had been brought forward in time to overcome the Millennium Bug problems; • in any event, the fire panel had its own backup battery;
all demonstrated matters of which the defendant knew but had not advised the plaintiff;
(g)	The danger of the Millennium Bug as it appeared at the time was described by Mr Worthington and in lay terms the potential risks were also well known in the community;
(h)	Despite the defendant’s Millennium Bug plans being discussed since at least February 1999, the only plan implemented at Sambell Lodge Hostel was the generator, which was not delivered until the afternoon of 31 December 1999;[12]

[5]             See T 148, L28-31

[6]             Transcript 170, L24-25

[7]             See T 156, L3

[8]             See T 148, L24-27

[9]             See Exhibit X

[10]           See Exhibits U and V

[11]           See T 196

[12]           See T 156, Exhibit 4, and confirmed by Mr Sloane

(i)      the defendant was aware that electricity mains supply could not be confirmed;[13]

[13]           See Exhibit H

(j)	The defendant was aware that a gradual Telstra shutdown was a foreseeable risk;[14]
(k)	There was medical evidence that Exhibit J was likely to cause further psychiatric symptoms in the plaintiff;[15]
(l)	There was evidence that the plaintiff remaining in the same work environment exposed her to the risk of aggravation of her pre- existing psychiatric condition.[16]

[14]           See Exhibit I

[15]           See Dr Epstein at T 756, L10-27; Dr Weissman at T 829, L8-21 and Dr Gill at T 945, L20-22.

[16]           See Mr Radlay at T 524, L31 – T 526, L17; Dr Epstein at T 778, L1-13; Dr Thompson at T 592, L4-15 and T 600, L12-22; Dr Gill at T 953, L27 – T 954, L20; Dr Ivers at T 928, L24-28 and even Dr Stern at T 1267, L26 – T 1268, L24.

The Law

8          The principles to be applied in determining the defendant’s application are well established.[17] A two-step process is required. Firstly, the judge must consider and determine the evidence most favourable to the party who carried the burden of proof. In this case, that means the evidence most favourable to the plaintiff in respect of its allegations of negligence. Secondly, the trial judge must consider and determine the question whether there was evidence upon which a jury could reasonably find for the plaintiff.[18] The application can only succeed if “there was no evidence on which the jury could properly conclude that the plaintiff had made out her case”, although the existence of a mere scintilla of evidence is not sufficient to require a jury verdict to stand.[19]

[17]           See The Herald & Weekly Times Limited v Popovic (2003) 9 VR 1 at paragraphs [126-70]; Naxakis v Western General Hospital (1999) 197 CLR 269 at 274-5; Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221 at 230.

[18]           See Naxakis v Western General Hospital (supra) at 274-5; Williamson v G J Coles & Co Ltd [1985] VR 59 at 63

[19]           Naxakis at 274-5

9          The function of a trial judge in deciding such an application is more circumscribed than that of an appellate court. Although each case must depend on its own circumstances, a trial judge “should proceed with care and caution and only in the clearest of clear cases should a judge take away an issue or direct a verdict in favour of a party”.[20]

[20]           See The Herald & Weekly Times Ltd v Popovic (supra) at 134

Analysis

10        Counsel for the defendant submitted that the evidence disclosed that the plaintiff did not complain that remaining at work was affecting her mental health. In the context where there was no complaint that remaining at work was affecting her mental health, insistence upon performance of a contract; that is, remaining at work at night, cannot be a breach of duty of care.

11        I accept the ratio of Koehler’s Case is as submitted by counsel for the plaintiff; that is, “the central inquiry remains whether, in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful”.[21]

[21]           at paragraph [33]

12        Koehler does not say it has to be an express complaint. It can be an implied complaint that remaining at work is affecting her mental health. Whether there is an implied complaint is a matter of evidence.

13        The factual situation in the present case is different from the situation in Koehler. In that case, the employee did not, either expressly or impliedly, give the employer reason to suspect she was at risk of psychiatric injury. The employee complained about the amount of work she was expected to do in the time given, but did not indicate that it was putting her at risk of psychiatric injury.

14        In this case, the defendant knew the plaintiff had been involved in a traumatic event at work, suffered a terrible shock, was taking time off work and was receiving counselling. It was open to the jury, on the evidence presented, to conclude that there was a reasonably foreseeable risk of injury/aggravation to the plaintiff. Particularly when the previous traumatic event was related to security.

15        There was an issue estoppel (which was agreed to by the defendant) that the plaintiff’s employment in the period after 20 September 1999, and over 31 December 1999 to 1 January 2000, was a significant contributing factor to a permanent psychiatric impairment, and that those periods were responsible for an aggravation, exacerbation or deterioration of a pre-existing mental or psychiatric injury caused by an encounter with the intruder on 19 September 1999.

16        I accept the plaintiff’s submission that by the time of 20 October 1999, when the cause of action commenced, the plaintiff had already suffered symptoms of Post-Traumatic Stress Disorder. There were already the symptoms of recognisable psychiatric injury present. When applying the test in Koehler’s Case, namely, the central inquiry must encompass the fact that the plaintiff was already suffering a recognisable psychiatric illness by 20 October 1999, the recognisable psychiatric illness was an aggravation of that pre-existing psychiatric condition.

17        The defendant submitted that “the risk of recognisable psychiatric injury could only come from knowledge that she was having counselling outside work and she was taking precautions regarding security after 20 October 1999”. I accept the submission of the plaintiff that that ignores much of the evidence going to the defendant’s knowledge of the foreseeable risk. The evidence of the defendant’s knowledge of the plaintiff’s condition is set out in paragraph 7.5(a)-(i). The evidence of the defendant’s knowledge of matter that it was reasonable foreseeable could aggravate the psychiatric condition are set out in paragraph 7.6(a)-(l).

18        In light of the evidence, it was, in my opinion, open for a jury to reasonably find for the plaintiff.

19        I therefore dismiss the defendant’s motion for judgment notwithstanding the verdict of the jury.

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