Naidu v Group 4 Securitas Pty Ltd - [2005] NSWSC 618

No judgment structure available for this case.

CITATION:
Naidu v Group 4 Securitas Pty Ltd & Anor [2005] NSWSC 618
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24/5/04-28/5/04, 31/5/04-4/6/04, 7/6/04-10/6/04

JUDGMENT DATE :

24 June 2005

JURISDICTION:
Common Law

JUDGMENT OF:
Adams J at 1

DECISION:
1. Judgment in favour of the plaintiff against the defendants; 2. News is to pay the plaintiff $150,000 in exemplary damages; 3. Otherwise the matter is stood over for agreement or further submissions and determination as indicated; 4. Costs reserved

CATCHWORDS:
Negligence - wilful acts of vilification - breach of contract of employment - resulting psychiatric illness - employee placed under authority of customer's manager - misconduct by manager - misconduct prohibited - liability of manager's employer - liability of employee's employer - effect of failure to complain - vicarious liability of each employer - aggravated and exemplary damages

LEGISLATION CITED:
Anti-Discrimination Act 1977
Limitation Act 1969 s60C
Racial Discrimination Act 1975
Workers Compensation Act 1987 s151D

CASES CITED:
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Bugden v Rogers (unreported, NSWCA 23 November 1993; BC 9302234)
Canterbury Bankstown Rugby League Football Club Limited v Rogers;
Deatons Pty Limited v Flew (1949) 79 CLR 370
Gordon v Tamworth Jockey Club Inc [2003] NSWCA 82
Gray v Motor Accident Commission (1998) 196 CLR 1
Hunter Area Health Service v Marchlewski & Anor [2000] NSWCA 294
Itex Graphic Pty Ltd v Elliott [2002] NSWCA 104
Janvier v Sweeney [1919] 2 KB 316
Kooragang Investments Pty Limited v Richardson & Wrench Limited [1982] AC 462
Lister v Hesley Hall Limited [2002] 1 AC 215
Lloyd v Grace, Smith & Co [1912] AC 716
Morris v C W Martin & Sons Limited [1966] 1 QB 716
New South Wales v Lepore & Ors [2003] HCA 4; 2003 112 CLR 511
Salido v Nominal Defendant (1993) 32 NSWLR 524 ; per Ipp AJA
Starks v R S M Security Pty Ltd & Ors [2004] NSWCA 351
Tame v NSW (2002) 211 CLR 317
TNT Australia Pty Limited v Christie & 2 ors; [2003] NSWCA 47
Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES:
Devandar NAIDU (Plaintiff)
Group 4 Securitas Pty Limited (First Defendant)
Nationwide News Limited (Second Defendant)

FILE NUMBER(S):
SC 20188/01

COUNSEL:
Mr D T Kennedy SC, Mr B Slowgrove, Mr M McCarty (Plaintiff)
Mr G F Little SC, Mr G Parker (First Defendant)
Mr S E Torrington (Second Defendant)

SOLICITORS:
Albert A Macri (Plaintiff)
P W Turk & Associates (First Defendant)
Wootton & Kearney (Second Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

Friday 24 June 2005

20188/01 NAIDU v GROUP 4 SECURITAS PTY LTD & ANOR

JUDGMENT

1 HIS HONOUR: This action is brought by Mr Devandar (Dave) Naidu against his erstwhile employer, Group 4 Securitas Pty Limited (Group 4) and Nationwide News Limited (News) which contracted certain security services at its premises to Group 4. The plaintiff’s principal place of work was at the News’ premises in Holt Street, Surry Hills. By virtue of the arrangements between Group 4 and News, the plaintiff worked under the direction of a Mr Chaloner, who was News’ Security and Fire Manager. In general terms, the plaintiff’s case is that Mr Chaloner so grossly misbehaved towards him that he suffered serious psychiatric injury, namely post-traumatic stress disorder and major depression.

2 The plaintiff claims that Group 4 and News are liable to compensate him for the injury caused by Mr Chaloner. He contends that they are vicariously liable for his injurious acts which, it is submitted, were committed in the course of his employment.

3 The plaintiff alleges that both Group 4 and News had, in the circumstances, a duty of care towards him that required them to prevent Mr Chaloner’s misbehaviour or protect him from it and that their failure to do so also renders them liable in negligence. The plaintiff also claims, against Group 4, breach of the contract of employment.

4 Although there are a number of questions in controversy between the parties it was not, I think, really argued at the end of the trial that Mr Chaloner had not misbehaved himself in the way that the plaintiff claimed, or much like it. In his final submission for News, Mr Torrington of counsel put its case in this way –

“The second defendant submits that the plaintiff fails against it for three general reasons: first, no cause of action arises in relation to the psychiatric harm; second, if the cause of action did arise, there is no vicarious liability for Mr Chaloner’s actions; third, if there was a vicarious liability, there has been no breach.

Before moving to these matters, I leap to one matter and it is this: News does not seek to defend or in any way excuse Mr Chaloner’s conduct, which is indefensible and outrageous. The cornerstone of our submission is, once we found out about it, we immediately terminated him.”

5 The questions of substance in the case concern the causal relationship between Mr Chaloner’s misbehaviour and the plaintiff’s injury, the true extent of that injury, whether he informed either of the defendants of Mr Chaloner’s wrongdoing and, if not, whether it was necessary that he or someone else should have done so, whether Mr Chaloner’s misconduct occurred in the course of his employment and whether either defendant is vicariously liable for Mr Chaloner’s misconduct.

INTRODUCTION

6 The plaintiff was born in Fiji in October 1960. He came to Australia in 1982, married in April 1985 and has two children. For a period, the plaintiff studied accounting and obtained various jobs before completing a security industry course of two days in early 1990. In March 1990 the plaintiff was employed as a security officer with Group 4.

7 The plaintiff commenced working for Group 4 at the News’ site at Surry Hills. Essentially, his job was to check the identity of persons entering the site, patrol the building and, generally, ensure the safety of News’ personnel and the building. A security presence was maintained at the site twenty-four hours a day, Group 4 employing for this purpose between six and ten security staff on each shift. In substance, the security staff at the site were instructed in their duties by experienced personnel of Group 4 who were working there; in short, they were trained on the job. In about September or October 1990 the plaintiff was promoted to the position of senior security officer and, three months later, to the position of leading hand and then to the position of supervisor of the site, a position which he held jointly with two other supervisors. News also occupied premises at Chullora and the plaintiff was required to perform duties at that site two or three times a week for at least half a day.

8 The plaintiff’s duties were so organised that it was unnecessary for him to attend Group 4’s own premises and he did not go there until after the crucial events occurred that have given rise to this litigation. Over the relevant period the plaintiff’s main supervisory contact with Group 4 was with a Mr Charles Blinkworth and, much more rarely, with a Mr Alan Miles, who was Mr Blinkworth’s assistant. He saw one or other of these persons at News’ premises at Surry Hills. Mr Blinkworth’s principal role was as the liaison officer or manager for Group 4, responsible for security for all News’ premises.

9 In due course, Mr Chaloner arranged with Group 4 for the plaintiff to become his assistant. This occurred about April 1992. At a meeting with Mr Chaloner and Mr Blinkworth, the plaintiff was instructed that he was to act as Mr Chaloner’s assistant and to report to him in respect of his duties. He was given the title (though only later an increase in salary) of Assistant Security and Fire Control Manager, News Limited. He said that 90% of his work was undertaken at the Surry Hills’ premises and the rest at other sites used by News, including Chullora. The plaintiff said that it was Mr Chaloner who initiated the change in his duties, with Mr Blinkworth’s approval and, as I understand it, on the latter’s ultimate instruction. As will become clear, Mr Chaloner was an exacting taskmaster who took a direct, continuous, day-to-day management role in the performance by Group 4 of its contract and, in particular, of the plaintiff’s duties in that regard. The plaintiff was indeed Mr Chaloner’s assistant in every practical sense and this position was understood and agreed to by Mr Chaloner’s superior, Mr Paine (News’ National Properties Manager) and Mr Blinkworth on behalf of Group 4.

10 In every material and practical sense, the plaintiff was placed in charge of Mr Chaloner as his subordinate, whatever the formalities were as to his actual employer. In my view it is inescapable that News took over, on its own behalf and as agent for Group 4, at least joint responsibility for the course, content and character of the plaintiff’s employment.

11 At Mr Chaloner’s direction, the plaintiff commenced learning a wide variety of security products as they touched on News’ requirements, including the preparation of tender specifications relating to fire protection and security systems. To perform these duties, the plaintiff needed to use a computer, which was kept in Mr Chaloner’s office on the first floor of the Surry Hills’ premises. The plaintiff claimed that such was his work arrangements that he was instructed both by Mr Chaloner and, as I understand it, Mr Blinkworth, to report only to Mr Chaloner and not to any one else even – as I take it – to Mr Blinkworth. The plaintiff said that this later changed when Mr Blinkworth started having some problems in his relationship with Mr Chaloner when he, Mr Blinkworth, would call the plaintiff to talk to him both in person and on the telephone. It is at this time that the plaintiff says he informed Mr Blinkworth, one way or another, of the problems he was having with Mr Chaloner. For most of the relevant time, it appears, Mr Blinkworth attended Surry Hills monthly and was in weekly telephone contact.

THE CONDUCT OF MR CHALONER

Preliminary note about fairness

12 It is obvious that Mr Chaloner’s conduct lies at the centre of this case. For obvious reasons, he was not called by News or, for that matter, by Group 4. The result is that he has not had the opportunity to deny or refute the very serious allegations made about him. At the end of the day, however, this is a trial between the parties and not a commission of inquiry. I must deal with the evidence as it is called in this Court. That evidence has permitted but one conclusion about Mr Chaloner’s conduct. But it is upon that evidence that the conclusion rests. What the conclusion might have been had Mr Chaloner been a party or called as a witness is not only speculative but irrelevant. When the substance of the allegations were put to him before his dismissal, he denied all misconduct. I have not given these denials any weight, except that they are part of the narrative of events covering what News did when it discovered what had been happening.

It would be very unfair to regard this judgment as being anything more than a determination as between these parties about Mr Chaloner, his character and his conduct. Any comment about this case that did not mention this qualification would not be fair.

Prefatory comments

13 As the plaintiff’s evidence unfolded, I found it difficult to accept the truthfulness of his account, so extraordinary did his descriptions of Mr Chaloner’s conduct seem and so passive was the plaintiff’s response. However, I have been persuaded that the substance of the plaintiff’s evidence in this regard is not only truthful (in the sense that he believes it to be true) but also by and large reliable. At the same time, I think that it contains some exaggeration and repetition. This is an overall impression and does not fasten on any particular incident; it is a common sense evaluation of the plaintiff’s evidence as a whole. In order to convey the sense of the plaintiff’s evidence and the way in which it was given, I have set out far more of it that one ordinarily would: initial attempts to summarise simply failed to do it justice.

14 Much more difficult to accept has been the plaintiff’s emphatic and unqualified evidence about making frequent complaints to Mr Blinkworth about Mr Chaloner’s misconduct. I have concluded that the plaintiff did not do so, at least in terms. Ordinarily, such a conclusion would have significantly adverse consequences for a witness’s credibility impinging on other aspects of his or her evidence. However, I think that the plaintiff did indeed make some complaints (by no means as frequently as he thinks) of a general kind about Mr Chaloner’s unreasonable demands and has come now to believe that he complained also about his actual misconduct – two aspects of their relationship which the plaintiff now finds it virtually impossible to distinguish.

15 I should concede, in fairness, that I have not been able to explain in a way that I find completely satisfactory the reasons for the plaintiff’s failure to complain specifically about the latter conduct: I am sure they involved fear of reprisal, shame and embarrassment and a sense of subordination and overwhelming powerlessness. To some degree, these explanations must be speculative, since the plaintiff’s insistence that he did complain to Mr Blinkworth naturally prevented questioning that sought to elicit any reasons for not doing so. Yet, bullying behaviour involving grossly improper conduct, including racist and sexist vilification, is notoriously under-reported even in the workplace and the undoubted fact that many victims seem unable or unwilling to take action at least for a considerable period of time shows that such responses are well within the range of ordinary human conduct and we should not be altogether surprised when it occurs. It is a regrettable commonplace of human experience that so often bullies seem to be able successfully to identify their marks.

16 It is perhaps difficult for a judge chosen from a Bar known, if not notorious, for its robust attitude to adversarial confrontation to understand how a person might be reduced to the plaintiff’s profound sense of powerlessness – how and why he remained a victim for so long – and, as I say, I have no satisfactory answer to this question. At the same time, I do not have any real doubt that this is precisely what happened to the plaintiff or that this pitiable condition was both induced, and calculatedly induced, by the misconduct of Mr Chaloner towards him and, what is more, that it resulted in the substantial psychological injury to which I refer later in this judgment.

17 Moreover, I have concluded that so extreme was Mr Chaloner’s behaviour that he well knew, or would have known had he reflected as any reasonable man should have, that prolonged misconduct of the kind he exhibited towards the plaintiff could reasonably be expected to expose him to the real risk of such psychological injury. This is not a matter solely or even mainly within the purview of medical science: it is a matter of common sense and human experience, naturally informed by what the doctors can tell us about it. I do not accept that the plaintiff was a person of significantly more than ordinary sensitivity or his character so outside the range of ordinary fortitude that the serious risk of substantial psychological injury would or should have been discounted, let alone dismissed, as insignificant. To the contrary, I think that the risk of such injury would have been obvious to any objective and reasonable observer.

18 I saw the plaintiff give evidence over a number of days. On many occasions, most not mentioned in the transcript, he became obviously distressed by being asked to recall different aspects of Mr Chaloner’s conduct. I thought that that these emotional responses were genuine and spontaneous. Many of his answers gave me the impression of unconscious reconstruction or even confabulation. At times, he appeared to “switch off”, occasionally in mid-answer. Despite my initial scepticism, I came to accept that that he did indeed suffer from the “flashbacks” which, when asked to explain what he was feeling, he said he was experiencing.

General

19 The alleged misconduct, so far it involved the plaintiff, occurred both inside and outside the work environment. In both contexts it was inappropriate and improper. In short, Mr Chaloner created a structure of oppression that was built on the power that his position with the defendants gave him over the nature and course of the plaintiff’s employment. It is practically impossible to separate the impact which the “internal” and the “external” conduct had on the plaintiff’s illness and I have not thought it necessary to do so. However, the defendants are not responsible in law for all that behaviour, in particular, that which occurred outside the workplace and the sexual incidents, to which I will come in due course.

20 The question whether wilful acts intended to cause injury are actionable torts is a difficult one. Some of the conduct occurring in the workplace alleged against Mr Chaloner might well amount to assaults at common law. Most of his conduct is of a very different character. Almost all comprises words, albeit offensive and demeaning. No single incident was itself productive of injury, nor could it have been reasonable to suppose that it might be. In the result, I have concluded that the conduct as a whole did indeed result in injury of a psychological kind, giving rise to perceptible psychiatric illness and that a substantial cause of this injury was the “internal” – that is to say, workplace related – misconduct, of Mr Chaloner, excluding the sexual incidents. It seems to me that an attempt to fit this pattern of conduct and concomitant injury into the “wilful-acts-productive-of-injury” model of potential liability would be an essentially arbitrary, if not capricious, Procrustean undertaking. If indeed the plaintiff suffered the psychological equivalent of the death of a thousand cuts, demonstrating that each of the cuts was trivial in its direct effect scarcely deals with the true issues in the case: to my mind it would avoid them.

The abuse starts

21 About two weeks before Easter 1992, Mr Chaloner asked the plaintiff what he intended to do over the Easter holiday break and was told that he intended to go up to the Central Coast with his family to look at houses and start building a house on some vacant land that he owned there. Mr Chaloner told the plaintiff that his father was a builder and his brother-in-law was a bricklayer and that he could arrange to build a house for him very cheaply. He said that the plaintiff should give Mr Chaloner sufficient funds to enable him to pay for this work. The plaintiff said that he would discuss the matter with his wife and let him know. He and his wife agreed not to accept Mr Chaloner’s offer. The plaintiff said that when he told Mr Chaloner about this decision “he didn’t sound very happy…[and said], (in an aggressive way) ‘I’m giving you till the end of Friday and I want an answer and I want ‘yes’ as an answer’”. On the Friday night, Mr Chaloner called the plaintiff and asked about the matter and was told, “We are not going to build it and I don’t want you to build it so the answer is ‘no’”. The plaintiff said Mr Chaloner started to shout at him –

“A. He call me a black cunt. He called me a prick. He called me a piker and I said, ‘Why are you saying all this to me?’, and he said, ‘Why are you saying no to me?’, and I said, ‘We don't want to build it’, and he said, ‘Well, my wife is standing next to me and she can't believe that you are saying no. She has always told me not to trust you and she can't understand why have I got you working under me’. Then he turned around and said, ‘I don't know why you have to listen to your wife, that miserable cow’.”

“’Well, if you don't want me to work for you, let me know and transfer me from the site’. He got really abusive on the phone and calling me--

Q. When you say ‘he got abusive’, just exactly what words did he use?
A. The main words he used was, ‘You monkey face. You black cunt. Why did you say no to me?’ He said he will fix me up on Monday. He doesn't want to see me in his office. He doesn't want me anywhere near him and he will talk to Securitas Security and get me transferred from there.

Q. Did he say anything to you about what would happen if you did become transferred or stop working for him?
A. Yes. He said if I ever get transferred – if I ever leave his work he will make sure that I don't get work anywhere in New South Wales in the security industry as he has got a lot of contacts, and he will do me.

22 The plaintiff said that the following occurred when he went back to work on the ensuing Monday –

“A. On Monday morning he called me into his office and the first thing he did was he grabbed hold of my shirt and pushed me towards the end of the wall and he said, ‘Why did you say no to me? I will do you’. I said to him, ‘What have I done wrong?’ He said, ‘I will get you transferred from here.’ I said, ‘I also need to know why am I getting transferred for what I have done wrong?’ He told me – as a matter of fact there was a chair where he was standing and he kicked the chair and the chair came and fell – hit my foot. I was crying but he would not care at all and he told me to fuck off from the room and I went downstairs to my office…”

“I told Mr Blinkworth that Mr Chaloner said that he had spoken to Mr Deegan [Mr Chaloner’s superior and a director of Group 4] and he was getting me transferred from here [meaning the News’ premises] and, ‘could you please tell me what was happening?’”

23 The plaintiff said that he did not think that Mr Chaloner was entitled to demand that the plaintiff should pay him to build his house. His explanation for not making a complaint was –

“Because it was in the same – at the same time, like, but it wasn’t in this conversation, like, when I gave him a call in regards to my transfer.”

24 Shortly after, Mr Deegan called the plaintiff and told him to stay at News because Mr Chaloner had not spoken to him and he knew nothing about any suggested transfer. Shortly afterwards, Mr Chaloner required the plaintiff to attend his office –

“I was told that I am not allowed to make any telephone call outside the building without his authority because he told me that I am not allowed to talk to anyone, which I did again, and he told me that there won’t be any transfer and just go and do your job”.

“Q. Well, what did you understood was meant by that term ‘I will do you’ in terms of you?
A. Well, normally what he does is, like, a few times when he said that downstairs where his office used to be there was no cement wall, it was just a board and he'll just come close and say, ‘I'll do you’ and he'll punch a hole on the wall and tell you that ‘This is what I'm going to do to you’.

25 The plaintiff said that he only told Mr Blinkworth and not Mr Deegan –

“Because Mr Blinkworth was the main liaison officer for our site. First of all, I was very scared to even tell Mr Blinkworth because I didn’t know what was going to happen to me, he was the one who told me I wasn’t allowed to talk to anyone other than Mr Chaloner only.”

26 It is baffling why the plaintiff thought that that meant that he could not or might not be able to talk even to Mr Blinkworth about what had happened, let alone Mr Blinkworth’s superior. His evidence is that, nevertheless, he continuously complained to Mr Blinkworth about Mr Chaloner’s conduct. Although the plaintiff understood that, when he complained to Mr Blinkworth, he was disobeying his instruction not to contact him, he said that Mr Blinkworth did not tell him that he was being disobedient in this respect. He did not seem to appreciate the illogic of this position.

27 The plaintiff thought that he would indeed be transferred (though in fact that did not occur). He said that, following this incident –

“A. The major problems which happened was he always seemed very, very angry with me and he'll call me into his office as soon as he comes in and he'll address me down in calling me a coconut head. If he sees me in the foyer he'll say, ‘What are you doing over there, you black man, you coconut head?’, and he'll show his tantrum by throwing his file on the floor and asking me to pick it up for him and put it on his desk. That's how - basically I started my day, every day.

Q. You said he would refer to you as a ‘coconut head’, were there any other such terms as--
A. Yes.

HIS HONOUR: ‘You black man’ is also a term of abuse in this context.

KENNEDY: Q. Yes, any other terms of abuse?
A. The main terms which were used all the time was coconut head, monkey face, a poofter, piker, a black man, and a black cunt.

Q. And would they be terms he would use of you on a regular basis?
A. Yes, sir.

Q. Would they be on a daily basis or weekly basis or?
A. It was on a daily basis.

28 The plaintiff said that the abuse to which he was subjected made him feel “very little and very, very scared of him…because every time he would threaten me that he will do me and he will kick the chairs, he will throw things and telling me that if I ever leave there I will never have a job, I will never be able to walk”. The plaintiff said that Mr Chaloner, who was a big man, said these things in a very aggressive and physically threatening way. He said that the threats about work would be made almost every day and the threats that he would be unable to walk would be made at least once a week. The plaintiff said that, when he was spoken to in this way, “I used to cry and say to him, why is he saying all that to me. His normal words were, “If you want a job you just do your job and fuck off from the office”.

29 The plaintiff said that Mr Chaloner abused him both in his office and, downstairs in the building, in the plaintiff’s office and in the control room, and that this occurred in the presence of a number of the other Group 4 security officers, namely supervisors Terry O’Dwyer and Fred Jones, senior officer Stuart Windham, and security officer David Panat, also Mr Hassan O’Demis and Mr Francis Ghazawi, those persons being present at different times when the abuse occurred.

30 The plaintiff said that he reported Mr Chaloner’s abuse to Mr Blinkworth on the telephone on a number of occasions. He said that the first occasion that he did this was when Mr Chaloner demanded that the plaintiff get him to build his house on the Central Coast. He said that he told Mr Blinkworth about the abusive names – “black man, a poofter and a black cunt” – which Mr Chaloner used towards him. He said that Mr Blinkworth told him that he would talk to Mr Deegan and “would sort it out for me”. However, Mr Chaloner’s conduct continued. The plaintiff said that he told Mr Blinkworth about Mr Chaloner’s continuous abuse of him, if not every week, every second week or whenever he spoke to him. At this time, Mr Blinkworth was also talking to the plaintiff about Mr Chaloner’s attitude towards him and the Group 4 contract. The plaintiff understood that this contract, relating to the premises of News at Surry Hills and Chullora, was worth close to $1 million a year to Group 4. Mr Blinkworth told the plaintiff that he was continuously reminded by Mr Chaloner that he should comply with all the latter’s requests “because the contract is on a seven day basis and if he does not do what he wants to do then they will lose the contract”. He said that Mr Blinkworth at no stage said anything to him about whether he should report Mr Chaloner’s misbehaviour to anyone else.

31 The plaintiff said that when Mr Chaloner wanted him “to do something for him, he will be very, very nice” but that his mood was very changeable and quickly reverted to his abusive behaviour. The plaintiff said that Mr Chaloner also insulted his wife and that this also upset him very much. The plaintiff, however, responded to these insults by saying to Mr Chaloner that if he dared to talk about his wife in that way he would report him. He said that Mr Chaloner “would tell me to fuck off”. He said that these insults about his wife occurred on a number of occasions. He said that he told Mr Blinkworth about it but that the conduct continued nevertheless.

32 The plaintiff also complained about the hours of work that Mr Chaloner made him undertake. Although his normal hours were supposed to be from 7 am to 4 pm, he used to finish between 10 pm and 11 pm and this meant, when he moved to live on the Central Coast and was commuting to and from Sydney, he would need to catch his train at 4.30 am and would not leave Sydney to return home until about 11.30 pm, arriving back home at some time after 1 am. Moreover, Mr Chaloner required him to work a twelve-hour shift on Sundays as well. The plaintiff said that he recorded the additional work hours he was required to undertake in the Group 4 “sign-on book” but was never paid. He said that he complained about working long hours for which he was not paid to Mr Blinkworth, who responded that he would talk to Mr Chaloner and get back to him but that, when he did so, he said “Well, Lance is the customer and he wants you to do those hours and he is a very difficult customer. For the sake of the contract, please hang on there and I will see what I can do”. However, no payment was ever made. He said that a motor vehicle was eventually made available to him by Group 4 in 1995. He said that until he was given the car he would only have about three hours at home after work before it was necessary for him to go to work again and that this happened every night, Monday to Friday. He said that he found it very difficult, that he would “mostly cry, even on the train going home”. He said that he “never saw my kids growing up and we used to have arguments at home [about it]”. The plaintiff said that from the first day that he was asked to do these “extraordinary hours” he complained to Mr Chaloner because he (Mr Chaloner) was coming in at 10 am and leaving at 6 pm and yet he would call him at 10 pm to see whether he was still in the office.

33 The plaintiff said that despite his numerous complaints to Mr Blinkworth, his hours were never reduced. The plaintiff said –

“I was always very, very tired, extremely tired but because of the threats I was getting that if I leave there I won't get a job anywhere, he'll make sure that I don't get a job. He will do me, that was his normal term to me and he'll make sure that I won't work and he'll hit the wall. He'll hold my shirt, kick the chair, throw the books at me, it always make me scared. I just couldn't do anything else…I was very fearful.”

34 Mr Chaloner’s humiliation of the plaintiff extended also to his use of the

toilet –

“Every time I have to go to the toilet I have to give him a call and get his permission to go to the toilet and when I used to give him a call regardless of where he was then he'll get angry with me saying, ‘Why you calling me to go to the toilet?’ When I remind him that that was his direction then he'll laugh and put the phone down. For example, if he does call the office and if I'm not in the office, if I happen to be in the toilet, then he'll get really angry and he will abuse me and if I'm at work and he's at work, he comes to the office and if I'm not there and if the secretary says that, ‘He's gone to the toilet’, he'll come to the toilet, inside the toilet and yell out my name until I say, ‘Yes, I'm here’”.

35 At one stage the plaintiff said that his wife telephoned Mr Chaloner to complain about his hours of work and that Mr Chaloner said to him –

36 In 1992 Mrs Naidu was admitted to St George Hospital with complications possibly involving her then pregnancy in respect of her second child. Not surprisingly, the plaintiff wished to pick her up from hospital following her admission but Mr Chaloner refused to give him the time to do so. The plaintiff asked Mr Blinkworth for permission and was given it. However, by the time the plaintiff reached the hospital, his wife had already gone home by taxi. The plaintiff went home and called Mr Blinkworth who told him, “Mr Chaloner is very ropeable. He is very, very angry and please do not take any more time off because he wants you at work”.

37 The plaintiff complained of other bizarre behaviour on Mr Chaloner’s part –

“Q. Were there occasions when Mr Chaloner would ask you to find files or documents or things?
A. Yes.

Q. What was the position as far as when you carried out your search?
A. He would - he'll have either contractors or someone he knows, an outsider, someone not from News Limited, he'll have them sitting there. He will hide the file either underneath his desk or he'll put it somewhere and he'll ask me to find that file. Obviously I won't be able to find it and what he will do is he will then call me ‘a black man’, ‘a poofter’, ‘you don't know what you're doing’. He'll throw the other files and tell me to pick it up in front of others and then laugh at me and then say to them, ‘This is how you control your staff’.

Q. Is that something that happened on an isolated occasion or did it happen on some regular basis?
A. It happened a lot of times.

38 In September 1993 Mr Chaloner and a Mr Wentworth spoke to the plaintiff about entering into a new salary package. The hours of work specified were from 7 am to 4 pm but the plaintiff declined to sign it because the salary was less than that which he was currently receiving and other security officers were getting paid more than the offer. He said that Mr Chaloner abused him for refusing to sign the new contract.

39 The plaintiff said that Mr Chaloner was involved in a security company known as Euro Alliance in late 1990 and that, in 1991, Mr Chaloner got him to do some work also for Euro Alliance on perhaps five or six occasions. He complained to Mr Chaloner that this was inconsistent with Group 4’s arrangement with News and that he (the plaintiff) was not permitted to work for another company. He said that Mr Chaloner threatened him in words to the effect “If you don’t do it you haven’t got a job”. The plaintiff understood that in 1992 News became aware of Mr Chaloner’s involvement with Euro Alliance and he did not further work for that firm after that time.

40 In the latter part of 1992 or early 1993 another strange incident occurred involving Mr Chaloner –

“Q. Was there an occasion in the latter part of 1992 or early 1993 when you had dropped Mr Chaloner at a meeting at Five Dock?
A. Yes, sir.

Q. Did that involve you attending a fire system training?
A. Yes.

Q. At Chullora as well?
A. Yes. What happened was I was supposed to go for fire training at Chullora and I had to drop Mr Chaloner at one of the subcontractors' office for a meeting. On my way back from Chullora prints site I was five minutes late to pick him up and he got very, very angry with me, called me a black man, a poofter, a black cunt, no good for nothing, and then he came and sat in the car and he started hitting the dashboard of the car, and we were driving along Parramatta Road and there was many other cars and people were watching when he was just punching the car, kicking the dash board of the car and just yelling and abusing me.

Q. What did you do, did you try and get away from there or do something?
A. I could do nothing in the car but as soon as we reached Surry Hills I said to him that I want to go home.

41 The plaintiff said that there was a strike at the Cumberland newspaper offices at Parramatta in the latter part of 1993. There was need for increased security and the plaintiff, together with other officers, was required to live at the premises for a week or so. Mr Chaloner was there every second day and night. The plaintiff’s account of his abusive behaviour reached its most extreme in the following evidence –

Q. Did he give you any directions about you having to wake him up in the morning?

A. I looked away from it, and then he was singing a song, I can't remember which one it was, but then he came close to me and he grabbed my private part and squeezed it.

A. I pushed him away and he said, "Why, don't you like it, you black men?" I started crying. Then he came back and with his right hand he just slide it through my private part, and then walked away to have a shower.

Q. Were you clothed when this occurred?

…

SHORT ADJOURNMENT

KENNEDY: Q. You mentioned when you went outside and saw Mr Windham and Mr Jackson, is that right?

A. Yes, sir.

Q. Did you mention anything to them about what had transpired in the shower area?

A. No, sir.

Q. Why was that?
A. I was too embarrassed.

Q. You mentioned in your evidence that you were out at Cumberland for seven days and Mr Chaloner was there for six days?

A. Yes, sir.

Q. Is that correct?
A. Yes, sir.

Q. You gave some evidence about five to ten minutes ago in relation to what happened out there on the first morning, I take it, is that correct?

A. Yes.

Q. In relation to the second day, did anything untoward occur in relation to anything of sexual impropriety?
A. Yes, he will come into the shower area and demand that I stand near the doorway and guard it so that no-one else can come in. He will do exactly like every - like the first day; he will take his clothes off and he will fondle or play with his private parts, and he will not come and squeeze my private part, but he will come and touch it and walk away laughing at me.

Q. That was the second morning, was it?
A. That's how it was for the rest of the time.

HIS HONOUR: Q. Sorry, Mr Naidu, to ask this question which will perhaps embarrass you, but when you say he would play with his genitals, can you be more precise about what he actually did?
A. He will fondle with his private part in a – I don't know how to explain it, but as if--

Q. How long did it go on for?
A. At least two to three minutes. It is like masturbating himself, that's how he will be doing it.

Q. Did he ejaculate?
A. I don't know, sir.

Q. Did you turn your back on him?
A. Yes, sir.

Q. How did it come about therefore that you saw him masturbating or playing with himself?
A. He will come and stand in front of you regardless of you are turning your back, and say, ‘Why, don't you like it, you black man’.

KENNEDY: Q. You mentioned two mornings when Mr Chaloner was taking a shower; what was the position, if any, as regards any of the other days?
A. The other days was similar to this, apart from like I said the first morning, where he squeezed my genitals, he didn't do that.

Q. Was that only done on the one occasion, that was on the first morning?
A. The squeezing of my genitals, yes.

HIS HONOUR: Q. As I understood you, any touching in that part of your body only occurred on the one occasion?
A. No, sir, the genital, he squeezed it only on the first morning and the first morning he touched it.

Q. He rubbed his hands?
A. Yes, and that's what he used to do all the other time, and play with himself in front of me.

KENNEDY: Q. How did you feel about these things that you observed in relation to Mr Chaloner in this shower area at Cumberland Press?
A. I felt very sick, I felt like a numbness in me and I just didn't know what to do. I was just crying my head off because I just didn't know what to do because I didn't know who to turn to, who to talk to about it.

Q. Did Mr Chaloner have any discussion or conversation with you about what you should or should not do in relation to what you had observed at Cumberland Newspaper?
A. Yes, he said to me on numerous occasions that if I do happen to mention that to anyone he will kill me.

Q. Did you mention these occurrences to Mr Blinkworth?
A. No, sir.

Q. Why was that?
A. First of all I was very embarrassed and ashamed and at the same time, because of all the other things which Mr Chaloner did to me, I was complaining all the time and nothing ever happened. So whether I was right or wrong, but I thought if I go and tell this it's going to fall on me as if I am lying, or nothing ever will happen and how am I going to face everyone.

Q. What were your thoughts, if any, about him saying to you that if you told anyone he would kill you?
A. I was scared that he will definitely, I mean I don't know if he could have killed me or not, but definitely he meant it.
Q. What was, to your knowledge, Mr Chaloner's background in terms of occupation prior to obtaining his position with News Limited?
A. All I know is that according to him he came to Australia playing soccer and he was a black belt in martial arts and a boxer.”

42 At the time of these incidents, the plaintiff said that he mentioned to a Group 4 security officer, a Mr Silan, Mr Chaloner’s sexual harassment –

“I was on that night, I was crying because I could not stop crying, and he saw me and he said, ‘What is wrong?’ Because he was not security officer, like he wasn't a regular security officer for us, he never work with us, apart from that strike, I did tell him that Mr Chaloner sexually harassed me. And he got very angry and he said, ‘Why don't we go and bash him up?’, I think he said, and I told him not to. I said, ‘Because you will not only lose your job but I will lose my job and he is a very dangerous man’.”

43 During the strike, security officers at Cumberland Press were paid in cash and it was necessary to accompany Mr Chaloner and the financial controller of Cumberland Press, Mr Graham Cutler, to the bank to get the cash. The plaintiff was involved in providing information about the hours worked and he (the plaintiff) was responsible for counting the money and paying the workers. This was done daily. As I understand it, these cash payments were in addition to the ordinary wages received from Group 4. When the plaintiff raised this question Mr Chaloner, he said, called him racist names and threw his money on to the floor of the van for him to pick up.

44 Another specific occasion that the plaintiff recalled when he was the subject of racist abuse from Mr Chaloner was when he allowed a Group 4 security officer to use Mr Chaloner’s vehicle in the course of his duties whilst he (Mr Chaloner) was in Perth and did not need it at all events. This abuse was extended, occurring not only during a telephone call when Mr. Naidu told Mr Chaloner what he had done but also when Mr Chaloner returned to Sydney. The abusive terms included, “a black man, a poofter, a black cunt, monkey face, coconut head, a piker”. The plaintiff said that he informed Mr Blinkworth of Mr Chaloner’s abuse and the reason for it but Mr Blinkworth said no more than that he would talk to Mr Chaloner.

45 On another occasion, the plaintiff said the following occurred –

“Mr – he was – Mr Chaloner was interstate and he, like, he went there for three days but he happened to come back. The next day he gave me a call to pick him up from the airport. When I went to pick him up he looked very, very angry but didn't say anything to me in the angry way or whatever but he looked very, very angry and very upset, and while I was on my way I said to him – I mean, normally when he's angry I don't say anything because being scared he's going to blow me apart, okay, but as we were driving along I asked him how come he's back so early and that's when he said to me that he received a phone call from his wife and money had been stolen from his house, and I can only say of what he told me, the amount was $70,000 cash, and he said Steve Paine knows about it, he has already told him and he is not coming to work; as soon as we go to Hall Street he's going to go straight home, and if he hears I have told anyone about this he will do me.

”HIS HONOUR: Q. Well, did you tell anyone about it?
A. No, sir.

Q. Why?
A. Because I was scared that he might do something to me.”

46 The first holiday which the plaintiff took whilst he was working under Mr Chaloner’s direction occurred in 1995. He had not had a holiday for three years. He went to Fiji with his family. Mr Chaloner insisted that he should telephone every day to see whether there was any issue which needed to be discussed. This entailed the plaintiff driving fifteen kilometres from where he was living to an available telephone. During these conversations Mr Chaloner pressed the plaintiff to return, saying that he had mentioned the matter to Mr Stephen Paine (a superior officer at News) and Mr Blinkworth, who had approved his early return and would reimburse him for the loss of his holidays. The plaintiff refused to return, despite Mr Chaloner’s threats that if he did not comply, he would lose his employment. When the plaintiff asked Mr Chaloner for reimbursement for the cost of the telephone calls and travel to and from the telephone, he was told to “fuck off”. He said that he did not put in a claim to Group 4, to Mr Blinkworth, because Mr Chaloner was the one who had said that he would be reimbursed for these expenses. The plaintiff said that when he returned from his holiday, the situation was becoming worse –

“A. He will – it came to a stage where it became like every day things; he will come to work and the first thing he will have to do is he will have to abuse me behind the closed doors, and then, once he sees me crying, then he will talk very, very nicely to me and say: ‘Why can't you take it, you black man’, and then ask me to go and make him a cup of coffee, and this was his usual way then and until he needs something then he will be the nicest person you could have ever seen or found, and once it's done then it's a sudden change, and every time you think it might change him, it might be better because, like, he's like this now, but then all of a sudden it's different.

Work at Mr Chaloner’s house

47 The plaintiff gave the following evidence –

“Q. Do you recall there was an occasion in 1994 when he asked that you meet him at a residence at Kenthurst?
A. That, that was in 1995.

Q. 1995 was it? Yes?
A. When I came back from my holidays from Fiji, I had one week left because I took five weeks off because I wanted to spend one week at home. He called; he wanted me to go to work and I told him: ‘Sorry, I'm not going to come to work because I have got a week and I have got so many things to do at home’, and he said – he didn't say anything, he put the phone down.

Then he called back again saying that he has spoken to Mr Blinkworth and it is okay by him for me to come back and I said: ‘Well, I'm sorry, I'm not going to come back and I will talk to Charles about it’, and he then yelled at me on the phone calling me ‘a black man, black cunt, no good for nothing’, and he hung up on me; and then the third time he called again and he said he has just gone and seen Steve Paine and he wants me to come and just do this one thing and then go back, and I called Mr Blinkworth and I told him, I said: ‘This is what Lance has said to me’, and he said: ‘Dave, he has not spoken to me and, please, he is a very difficult customer but, please, just go once and just do that for us.’

Q. So did you go along?
A. Yes, I did.

Q. That was still in the holiday period?
A. Yes.

Q. And that additional week you have referred to, did you have some additional plans in relation to that week?
A. Just doing general work at home.

Q. So you went into Surry Hills?
A. Yes.

Q. Did you see Mr Chaloner?
A. I went to Surry Hills; I think it was, if I am not wrong, round about 6 o'clock or just after 6 o'clock in the morning. He was not there. Whatever he wanted me to do the files were in my office. I explained everything to his secretary and then I came downstairs to the network control area.

There was some problem with the alarms and I was fixing that and things; that's when he gave me a call and the time was somewhere close to 9.30 or 9 o'clock and he said to me he's on his way to work and I went to see him and I said to him: ‘I'm sorry, I can't stay back, I have already done whatever you wanted me to do and I would like to go home’, and he said, then he raised his voice and I heard other officers standing there while he raised his voice.

HIS HONOUR: Q. Other officers standing where?
A. In that area where he gave me a call in the control room.

Q. You heard their voices?
A. Yes, they could hear him.

Q. Sorry, they were in your company?
A. Yes, sir.

KENNEDY: Q. Was this a personal discussion or a phone communication?
A. Yes, personal.

HIS HONOUR: Q. But these other officers were in your company?
A. Yes.

KENNEDY: Q. What was the outcome of this?
A. He abused me but I still didn't stay there, I went home, and then on my way home he called me on the phone and abused me again and then said to me: ‘There's something to do with the contract of, of Group 4’, and he wanted to see me urgently and he said he cannot discuss it at work but it's something to do with the contract and Group 4 is, not Group 4, is looking at cutting the budget of the cost cutting and they are thinking of removing you from this site and he said: ‘I need to see you urgently’ and he said: "I need you on Friday’, so at 7 o'clock in the morning at his home address, he gave me his home address --.

Q. Was that 8 Murray Park Road, Kenthurst?
A. Yes, sir.

Q. He asked you to go to that address on that day?
A. Yes, on a Friday.

Q. Did you go?
A. Yes.

Q. Why did you go?
A. Because he said it was in regard to the contract he wanted to see me.

Q. You went out to his residence, is that right?
A. Yes.

Q. Did he say something to you about what he wanted you to do?
A. As soon as I went in there he was at the doorway, he had his son and a few of his friends and a few others. He asked me to come in and said to me: “I need you to come and help me here in doing the brickwork, the cement work, and doing the fencing in the seven acre block”, and I said to him, I said: "I'm not going to do that." I said: "You asked me to come here to discuss about the contract", and he said: "Why I thought all you black men can all do that work. Why can't you, aren't you tough enough to do it", and --.

“Q. Had you ever done any of that sort of work he was asking you if you might do before?
A. No.

Q. Had you any training?
A. No.

HIS HONOUR: What does it matter? If it happened it was totally unjustified.

WITNESS: No, sorry, I never did.

KENNEDY: Q. What was the position so far as his premises at 8 Murray Park Road, Kenthurst?
A. He forced me to stay there and got me to go and help him in digging holes to put the poles, poles for the fencing of the seven acre block.

HIS HONOUR: Q. You say he forced you?
A. Yes, sir.

Q. What do you mean by that?
A. He came close to me and he said: ‘If you don't help you haven't got a job’, and he basically said that: ‘And if you go and tell anyone I will make sure you are not around’, and I was, I was in tears, and his kids and his other friends they were all laughing at me in there and I couldn't, I just couldn't start doing it. I was just completely helpless.

KENNEDY: Q. Did you do any of the digging of the holes that particular day?
A. Yes, I did.

Q. Well, for how long did you do it for?
A. I happened to be there till midday and then I went home.

Q. Did you stay at home there for the balance of the holiday period you had organised?
A. That was the last day of my holiday, Friday.

Q. And the premises that you were out there for was that a completed house?
A. No, it was getting built.

Q. Now, did he make a further request of you to go to those premises and carry out work?
A. Yes, he did. I went.

Q. What was your response to that request?
A. That no, I will not do it, and what he did was when I came to work on Monday he said, all he wants me is for that following Saturday; he said he has got a few people to come and see what he was doing. He said: I don't want you to help me, I don't want you to do anything, to just come along and see what is happening there, and I went and when I went there there was another staff member from News Limited, his name was Hitham Kamaladine, of News Limited, he was there, and there was another managing director of a company which was doing security contractual work, Mr Ian Phillips, he was there as well with Mr Chaloner and his kids, and that day he said to me, he said: ‘I want you to cut this and use a brake [sic] saw’ and, well, I never used it, and he said: ‘Come on, you black man’ in front of everyone: ‘Why can't you do it, just go and cut it’, and he went there, he spoke to me, he said: ‘This is the way you cut it’, and when I cut it, it was done wrong, and he picked it up and threw it down on my foot.

Q. Prior to going out and doing that work on that occasion, had Mr Chaloner spoken to you at all about having spoken to Mr Paine?
A. That, after that Saturday on the following weeks, yes, he did.

Q. What had he said about that?
A. He said to me that he has spoken to Mr Steve Paine in regard to me going an helping at his place doing the work and, according to Mr Chaloner, Stephen Paine said it's okay for me to go and help him provided it does not interfere with my work because he is doing the same thing with the builder, according to Lance he is also getting the help from the builders Stephen and O'Neill, who were contracted to Surry Hills, News Limited.

KENNEDY: Q. This occasion when the incident involved in the block occurred was on the Saturday?
A. Yes.

Q. How long did you spend out there at those premises on that day?
A. I was there till approximately four o'clock in the afternoon.

Q. What time had you gone there?
A. Between 7 and 8.

Q. Did he also ask you to do some work with a cement mixer and wheelbarrow?
A. Yes, he did.

Q. What did he ask you to do?
A. That was mixing the cement, like, getting sand and putting the wheelbarrow and read the - I think he was telling me to mix some oxide in it.

HIS HONOUR: Q. Sorry?
A. I had to mix some kind of an oxide to give some colour to some water.

KENNEDY: Q. Why was it you were prepared to go and do this work that seemed to be totally unrelated to your job, why did you do it?
A. I never knew it was going to carry on like that because he said on the Saturday just to come in, just to have a look. There were a few people in there; he said: ‘Just have a look at what we're doing.’ For that reason I went there that Saturday.

Q. Did you go on subsequent Saturdays?
A. Yes, because he told me Mr Paine has told him it's okay for me to go and help him.

Q. What was your wife's reaction to you going off, working these long hours and going off on Saturday to Mr Chaloner's property to do work?
A. She was not happy at all. She gave a call to Mr Chaloner on the first Saturday and I had the other fellow in the car, I was taking him home. She gave him a call and asked why is he doing that to me and she's going to report it to Group 4 and according to her Lance said he will not do that and he will not have me there at his place helping me and --.

Q. And did Mr Chaloner say anything to you about what conversation, if any, he may have had with your wife?
A. Yes, he gave me a call on the mobile phone, which was hands free. He said to me: ‘You fucking black cunt, why can't you black men - something like that - rule your wife the same way as we white men do?’

Q. How did you feel about him referring to your wife in those terms?
A. I said to him: ‘You've got no right to talk about my wife like that and the only reason she has called is I'm not supposed to do this’, and he said: ‘Well, I don't like that miserable cow, that fat bitch, and you tell her not to call me again.’

Q. In relation to this matter of you going off to Mr Chaloner's property to do this work, did you ever raise that with Mr Blinkworth?
A. Yes, after that Saturday when I went back to work on the Monday he said to me --.

HIS HONOUR: Q. Who?
A. Mr Lance Chaloner, when he came to work he always comes around about 10 or 10.30. He went round and sees Steve Paine, that's the first thing he does. He came back and took me into his office and he said to me he has spoken to Steve Paine and Steve Paine has said it's okay for him to take me to his place to help him out, so he took me to his place because I was in my car, he was in his car, and I called Mr Blinkworth and I reported it to him.

Q. What did you say to Mr Blinkworth?
A. I told him Lance is taking me to his place to do hard labour - that was the word I used to do hard labour - and he said, he has said to me that Steve Paine has authorised it.

Q. Did you say to Mr Blinkworth I don't want to or I shouldn't have to go or any words like that?
A. He has forced me and he takes me there. He said he will talk to him and said --

KENNEDY: Q. The first time you appear to have gone to Group 4 was during a working week?
A. Yes.

Q. Then there were occasions --.

HIS HONOUR: The first time he went was on his holidays

KENNEDY: Yes.

Q. After that initial period where you went on Saturday, did you continue to go?
A. Yes.

Q. Why did you go?
A. Because I was employed with the job and I had no other choice because I have already notified Mr Blinkworth and nothing happened.

HIS HONOUR: Q. The day upon which you had this conversation with Mr Blinkworth that was a working day?
A. Yes.

Q. A week day?
A. Yes.

Q. He said to you I will talk to whom, Mr Chaloner, after --?
A. He said he will talk to Mr Chaloner and he will get back to me.

KENNEDY: Q. Did he get back to you?
A. Yes, he did, not on the same day.

Q. What did he say about --?
A. He said to me: ‘He's a very difficult customer. As you can understand, we have got a very big contract’, and he said: ‘Sorry, mate, just hang in there and I'll see what I can do for you.’

Q. So from that time on did you go to those premises on different days to do work?
A. Yes, it was at least two or three times on weekdays and I think around about three times I think he took me there for a continuous, like, whole week.

Q. Did you go on Saturdays?
A. Yes.

HIS HONOUR: Q. What happened to the sign on/sign off book when you went out to Kenthurst?
A. I was on a salary at that time.

Q. So you didn't have to sign on and off?
A. No.

KENNEDY: Q. You were going out to these premises sometimes during the working week, is that right?
A. Yes.

Q. Was that as a result of Mr Chaloner telling you to do so?
A. Yes.

Q. Did you feel compelled --.

HIS HONOUR: I don't think you should lead that, Mr Kennedy.

KENNEDY: Q. What was your feeling about these instructions you were given?
A. He was angry and upset but just because he was mentioning his superior's name I could not go and ask his superior. If I said that --

Q. In relation to the weekdays when you were going out doing this work, how was it you were able to attend to your normal duties?
A. From what he said to me he has called Group 4 and notified them I was, I am doing special project for News Limited and News Limited he has told them I am doing special project for Group 4. As far as the security officers were concerned, Mr Chaloner didn't know the security officers knew I was working at his place.

Q. Who.

HIS HONOUR: Q. How did they know?
A. I told them that's where he was taking me and "if you need anything you'll have to call me on my mobile".

KENNEDY: Q. Would you go there --?
A. At his house?

Q. Yes.
A. No, he would come and take me from work in different cars.

Q. Would you go together?
A. In different cars.

Q. Would he do work as well as you?
A. Yes, he would, and at the beginning he was giving me his clothes to work, to do the job.

Q. Well, did you receive any remuneration from him in relation to occasions when you went out there on the weekend?
A. No, I didn't.

Q. Did you ask for some?
A. All I said to him is that ‘I am not allowed to do this’, and he said to me: ‘If you don't do it you haven't got a job’, and that was it.

Q. Did you value the job you did?
A. Yes, I did.

Q. Did you see there may be opportunity for advancement as far as your job was concerned?
A. Yes, I have always wanted to progress further. I went to do courses because I wanted to progress further in the security industry but never had an opportunity.

Q. When you were out at Chaloner's property at Kenthurst doing some of this work you have referred to?
A. Yes.

Q. And you were not at News Limited doing your security tasks?
A. Yes.

Q. How did you get your normal work done during the course of the working week?
A. The three weeks he had me ten --.

HIS HONOUR: Q. You mean five days a week?
A. Five days a week, yes, at that time I had to go from his place to Surry Hills and pick up all the work that was left there and do whatever I can there and take the rest home and bring it back in the morning.

Q. Bring it back where in the morning?
A. Surry Hills and the rest of the time because I was going from work so he made sure the work was done over there.

48 The plaintiff said that when he was at Mr Chaloner’s residence, as well as members of his (Mr Chaloner’s) family and his friends, who were also working there, on one occasion Mr Haitham Kamaledine, News’ architect, who drew the plans for the work and a Mr Ian Phillips, also a News’ employee, were there. He said that Mr Chaloner abused him for not coming back to work on a Sunday, in the presence of Mr Kamaledine on one or two occasions. On the occasions when he was abused –

“I would feel very little and it would make me very angry and I will have tears in my eyes and because he will say in front of his kids who are just not even eight years old and they would laugh about it, that made me angry”.

49 During this period, that is between May 1995 and November 1996, Mr Chaloner required the plaintiff to work on his property frequently for three days a week during the ordinary working week and the usual working hours. Mr Chaloner told him that he had approval from his superior, Mr Stephen Paine, whom he told that the plaintiff was doing a special project for Group 4 and he told Group 4 that the plaintiff was doing a special project for News. Mr Chaloner also, the plaintiff said, told him that he said to security officers at the Surry Hills’ premises only to contact the plaintiff when it was otherwise because he was undertaking a “special project”. The plaintiff said that the officers knew, however, that the plaintiff was working at Mr Chaloner’s house. The plaintiff said that, whilst he was working at the house he did not get any lunch breaks with the possible exception of two occasions and when the builders said to Mr Chaloner “Why don’t you give him a break?” Mr Chaloner replied, “He’s only a black man, don’t worry about him”. These things were also said in the presence of Mr Ian Phillips. The plaintiff said that being referred to in these terms, “would really hurt me and I will feel very, very small and I couldn’t do anything”.

50 Eventually, the plaintiff said that he was not getting paid for doing work on Mr Chaloner’s property at Kenthurst and that he would not do it. He said that he had only done that work because Mr Chaloner had threatened him with physical violence, had abused him and said that he would lose his work. If he happened to be a few minutes late, Mr Chaloner would subject him to racial abuse and this occurred regularly throughout the period. The plaintiff said that working on Saturdays on Mr Chaloner’s property occurred from May 1995 to November 1996 with only a couple of exceptions.

The plaintiff’s mother is unwell

51 In July 1995 the plaintiff was informed that his mother in Fiji had a stroke and it was thought that it might well be fatal. The plaintiff said that he raised this matter with Mr Chaloner and told him that he needed to go to Fiji to see her. Mr Chaloner suggested that this was unnecessary, but the plaintiff insisted. Mr Blinkworth told the plaintiff that, although Mr Chaloner advised him not to let him go, he gave permission for him to undertake the trip. Mr Chaloner insisted that the plaintiff should be back in three days and, when through his wife, he enquired from Mr Chaloner if he could take a few extra days off, she was told (falsely) that if he needed his job he would need to come back because Mr Paine and Mr Blinkworth were unhappy about his being away and thought that he had invented his mother’s ill-health and was taking a holiday. Accordingly, The plaintiff came back after three days. Whilst the plaintiff had been making arrangements for staff to take over some of his duties, he was abused further by Mr Chaloner.

52 On his return, Mr Blinkworth told him that he had not suggested to Mr Chaloner that the trip was unjustified in any way and Mr Paine simply asked how his mother was and expressed surprise at his early return. On the following day Mr Chaloner required the plaintiff to go out and resume work on his property. Although the plaintiff protested at first he agreed to go when Mr Chaloner told him that he had spoken to Mr Paine who had given his approval. On his way to Mr Chaloner’s house he telephoned Mr Blinkworth and said, “Charles, is this why Lance called me back so early from Fiji, he is now taking me back to his place to do the hard labour”. The plaintiff said that he said that Mr Blinkworth responded, “I can’t believe how he can get away with all this” and said that he would talk to him. The plaintiff said that this was his usual response to his complaints.

53 On one occasion, Mr Chaloner wished the plaintiff to forge Mr Paine’s signature on an invoice for some work which was being done at one of News’ sites. The plaintiff refused. The plaintiff did not say that any particular insult or abuse followed this refusal.

54 It is clear that Group 4 had a very substantial security business not only in New South Wales, but in other states, in looking after News’ sites and that a threat to the plaintiff to exclude him from that work would have been very worrying.

The plaintiff has an accident

55 In February 1996 the plaintiff was involved in a motorcar accident that required hospitalization and some time off to recover. He said that, on the morning after his release from hospital, a car was sent for him to return to work but he told Mr Chaloner that he was not feeling well and could not work yet. When he said this to Mr Blinkworth, Mr Blinkworth told him that Mr Chaloner “is very, very angry and he thinks you are doing all this to have more time off and please get well soon and come back to work”. As a result of this he attempted to go back to work before he was well but was unable to do so because of pain. When he informed Mr Blinkworth of this he was simply told to try to get well as soon as possible because Mr Chaloner “is giving them a very hard time”. As a result the plaintiff did return to work to perform urgent tasks, whilst he was unwell.

56 On an occasion after his return to work Mr Chaloner visited him at his home –

“…He came to my place with the sub-contractor Mr Ian Phillips.

He knocked at the door and my wife opened the door. He came inside and as my wife went to make a cup of coffee he said “I have got a present for you” and he went into the car and then he came back and gave me a packet of condoms.

Q. Did he say anything about why he was doing that?
A. He said “You can use it while you are at home”.

Q. How did you feel about that?
A. I threw it and I said to him “Why you doing this” and Ian Phillips was there and he just shook his head.

HIS HONOUR: Q. Who shook his head, Mr Chaloner or Mr Phillips?
A. Mr Phillips.

57 Whilst he had been recuperating Mr Chaloner rang him continuously to abuse him about taking time off and suggesting that both Mr Paine and Mr Blinkworth thought that he was faking his illness. When the plaintiff returned to work it was necessary for him to have regular physiotherapy but Mr Chaloner prevented him from going to his appointments after the first three weeks, claiming that he had too much work to do. The plaintiff complained about this to Mr Blinkworth who said to him, “I can’t believe he’s doing that to you and how can he get away with it and please, Dave, hang in there, I will see what I can do” but nothing was done and he was unable to complete his course of physiotherapy.

Further pressure

58 In September 1996 Mr and Mrs Naidu opened a restaurant at Budgewoi on the Central Coast, which was run by Mrs Naidu. Mr Chaloner and Mr Blinkworth were informed of this fact. Mr Chaloner first said to him that the plaintiff was not allowed to have another business whilst working for Securitas at News but the plaintiff told him that he had obtained permission from Securitas to do so. Later on, Mr Chaloner pressed the plaintiff to permit him to take a 50% interest in the business, continuously wanting to know about the takings and coming over to the restaurant. A conversation along these lines was conducted in Mrs Naidu’s presence at the restaurant on one occasion and Mrs Naidu emphatically rejected Mr Chaloner’s proposal. On the following day, Mr Chaloner told the plaintiff that he should tell his wife that she was not to call him (the plaintiff) at work, adding gross insults about her.

Investigation

59 Towards the end of November 1996 Mr Chaloner’s conduct was the subject of investigation by News as a result of complaints about sexual harassment made by two female employees. At this time the plaintiff was staying at home and came back to work shortly before the Christmas holidays. He worked with Mr Chaloner for a week at this time and then for another week or so early in January 1997. During this time Mr Chaloner’s conduct changed in that his use of abusive and insulting language stopped, no doubt attributable to the fact that he was under investigation.

60 In the latter part of 1996, the plaintiff became aware that two female employees (Ms Samantha Hunter and Ms Megan Moyle) commenced proceedings against Mr Chaloner in the Anti-Discrimination Commission. He was informed of this by Mr Paine and he was aware of the identity of the employees. Indeed, he said that Mr Chaloner had abused him on a number of occasions in their presence. The plaintiff himself was present at times when Mr Chaloner made inappropriate sexual remarks about Ms Hunter.

61 The Human Resources Manager for News was a Ms Sandra McDiarmid. The plaintiff said that Mr Paine came to his office and said that Sandra McDiarmid wanted to talk to him about the allegations made by the female employees and accompanied him to her office. The plaintiff said that either before he saw Ms McDiarmid or afterwards – he was not sure which – Mr Paine told him that if he was asked whether he was aware of any of the allegations made he should say that he was not aware of anything. Of course, the character of this suggestion is very different if it was made before he spoke to Ms McDiarmid, when it suggests he should not disclose what he knew or made after he spoke to her, which merely suggests, in effect, he should keep the matter confidential. In the result, I am not prepared to accept that the plaintiff’s recollection about the precise terms of this conversation is completely reliable. I am not, therefore, prepared to infer that Mr Paine gave the plaintiff any improper direction or attempted inappropriately to influence him.

62 The plaintiff said that when he entered Ms McDiarmid’s office she told him, in substance, that a number of allegations had been made against Mr Chaloner and that he must cooperate with the enquiry and tell the truth or else he would be in trouble. Mr Blinkworth was there at the time. A telephone call came for Ms McDiarmid and she asked the two men to go into the next office, talk about the matter and return. When they got to the office the plaintiff said that Mr Blinkworth said to him, “Dave, this is the time to spill it all out” adding that he should make sure that the plaintiff did not mention his name as he wasn’t aware of anything. The plaintiff said that he did not say anything in reply.

63 The plaintiff said that when he and Mr Blinkworth returned to Ms McDiarmid’s office, she said that she had already interviewed a few of the security officers mentioning a number of them including Mr Stuart Windham and Mr Terry O’Dwyer in connection with the allegations made by the female complainants and that these persons had also mentioned that he had been harshly treated by Mr Chaloner. She asked him to tell her about it. The plaintiff commenced telling her about some of Mr Chaloner’s abusive behaviour. He said that Ms McDiarmid became tearful (she confirmed this happened) and said that she would speak to him later. The plaintiff said that he asked her “Please do not mention this to Mr Steve Paine, as I was scared as I feel that he is close to Mr Chaloner and it will be very difficult for me to work there with Mr Chaloner in the office”. The plaintiff said that Ms McDiarmid said to him that sooner or later she would have to inform Mr Paine about the matter but assured him that she would tell the plaintiff before she did so. The plaintiff said that Ms McDiarmid appeared to be taking a note of what he said to her.

64 The plaintiff said that, following his conversation with Ms McDiarmid, when he returned to his office, Mr Paine walked past, saw him in the office and telephoned to ask him to go for a walk. As they were walking, Mr Paine asked the plaintiff, “How did you go?” The plaintiff told him that, “Everything went OK…Then I told him that I was not aware of anything and he patted me on the back and he said, ‘Good on you, mate, go back to your office’.” I am not sufficiently confident of the accuracy of the plaintiff’s recollection to infer that Mr Paine said anything to the plaintiff that was improper.

65 On the afternoon of the interview with Ms McDiarmid and the conversation with Mr Paine, Mr Chaloner told the plaintiff that Mr Paine had advised him to remove all the diaries and papers which he (Mr Chaloner) had in the office, from the office and he instructed the plaintiff and Mr Windham to place them in the boot of his car. The plaintiff said that whilst this was being done, Mr Paine was also in the car park and saw them there, smiled and left. The diaries were just the usual News’ diaries used regularly by Mr Chaloner. On the next day Mr Chaloner told the plaintiff that he burnt these diaries in his backyard and buried the remains.

66 In early 1997 the plaintiff spoke to Mr Blinkworth at Mr Paine’s request at Mr Blinkworth’s home. The plaintiff said that they discussed “all the things which Lance was doing to me”. He said that Mr Blinkworth said, “He’s sorry that he could not help me before but he will make sure that nothing like that happens to me again”.

67 On or about 21 January 1997 Mr Paine informed the plaintiff that Mr Chaloner had left News.

68 The plaintiff said that one way or another, he complained continuously to Mr Blinkworth about Mr Chaloner’s conduct towards him, except so far as the sexual assaults were concerned. He said that Mr Blinkworth’s response was invariably to the effect: “I can’t believe how he can get away with it. He’s a very difficult customer. He’s threatening us with the contract all the time. Please, Dave, hang in there and I will see what I can do.”

69 The reference to the contract was, of course, the contract between News and Group 4 in respect of the security work, which was obviously a significant part of Group 4’s security business.

(2) …”

Workers Compensation Act

258 At the forefront of the submissions of the defendants is the evidence concerning the loss of certain News records. Mr Biokka, the Group Employee Relations Manager for News since March 1998, gave evidence that he had attempted, upon receipt of an appropriate subpoena, to obtain News’ records relevant to the case including Mr Chaloner’s employment history and files. Those files could not be located. The subpoenas had been issued in 2002.

259 The question, in substance, is the same under both limitation provisions, namely, whether “it is just and reasonable” to extend the limitation period to the date upon which these proceedings commenced.

260 So far as any delay is concerned, it is evident that no action for negligence arose until about the plaintiff commenced to suffer from major depression which was reported by Dr Butler on 25 June 1997 to Dr Phadke as having been present and worsening over “at least the last few months” and, in a later report, as having been in existence since, at least, November 1996. For obvious reasons, where psychiatric illness is the gravamen of the cause of action, when the illness – ie the injury – has been caused is a difficult matter to determine. Such illnesses will often be of gradual onset, a point emphasised by Dr Butler’s phrase “at least”. The first complaint noted in Dr Phadke’s notes suggestive of psychological injury was made on 30 May 1997. PTSD was diagnosed in about November 1998. It is fair, however, to note that the plaintiff could scarcely be taken to have known that he suffered from a psychological illness until Dr Butler’s report of 25 June 1997.

261 In brief, the evidence of Mr Carney and Mr Sparks as to how the matter unfolded is sufficient to persuade me that delaying the commencement of proceedings until March 2001 was not unreasonable. I note that, in respect to the plaintiff’s PTSD, which was not diagnosed until late 1998, it may be that the action is not statute barred. However, I think that this diagnosis should be seen, as should the diagnosis of major depression, as recognition of an injury (albeit a psychiatric injury) that had been inflicted at a much earlier time. It seems plain that the principal reason for delay in the commencement of proceedings was the time it took for the plaintiff’s psychological injury to become evident.

262 Having regard to the close connexion between News and Group 4 concerning the misconduct of Mr Chaloner towards the plaintiff, as evidenced in particular by the contents of the proffered Deed of Release, it seems reasonable to infer that News investigated well prior to the commencement of proceedings the nature of Mr Chaloner’s misconduct so far as it was then discoverable and was likely to have been made aware of the plaintiff’s condition at least in general terms as disclosed to Group 4. No suggestion is made that the delay has prejudiced the medical cases sought to be maintained by either party. At all events, such a submission could not in my view be sensibly maintained. Prior disclosure – when the plaintiff was still working as Mr Chaloner’s subordinate – would have been significant for obvious reasons.

263 It is this problem that brings into prominence the only major issue posed by s60E(1) facing the plaintiff. There are two specific points that need to be made in this regard. As it happens, they are touched on by s60E(1) (e) and (f). The first is that it is the plaintiff’s evidence that he frequently complained to Mr Blinkworth about Mr Chaloner’s misconduct. I have found that, although it is likely that he did make some complaints from time to time to Mr Blinkworth, they were not such as to convey more than the use offensive remark or conduct, let alone that they were part of a continuing course of racist vilification. On the other hand, I have found that Group 4 should have been aware by 1994 or early 1995 from its employees on the News site of some racist abuse and bullying behaviour that should have alerted the company to the likelihood, in the circumstances and what Mr Blinkworth himself knew of Mr Chaloner’s way of dealing with staff (himself, not least), of significant breaches of its obligations to protect the plaintiff from wilful misbehaviour by Mr Chaloner calculated to cause at least considerable distress and potentially, if continued for a period and at an intensity well within reasonable likelihood, some psychological damage. So far as News is concerned, my findings as to Mr Kamaledine’s disclosure to Mr Paine of misconduct towards the plaintiff by Mr Chaloner are significant. Moreover, both defendants, one way or another, placed the plaintiff in the position where he felt completely under Mr Chaloner’s thumb and found it very difficult (in the result impossible – as I find despite the plaintiff’s evidence to the opposite effect) to make explicit complaints about his misconduct.

264 The major proportion of the conduct complained of occurred in the period between mid-1992 and late 1996.

265 On 4 March 1998, Tempo Services Pty Ltd of which Group 4 was a wholly owned subsidiary, received an application from the plaintiff for workers’ compensation. The company, which undertook supervision of such claims against its subsidiaries, noted that its insurer undertook an investigation that resulted in the claim being accepted and compensation being paid. The claim was for psychiatric injury sustained in the course of employment as a result of sexual, verbal and physical harassment. Compensation was continuously paid from an early date to the date on which this action was commenced. In March 2001 Group 4 issued a subpoena directed to News and discovered that News’ records concerning the allegations against Mr Chaloner were missing. However, it is not true to claim, as Mr Little, counsel for Group 4 submitted, that his client was prevented from identifying the News’ employees who may have known about the allegations against Mr Chaloner’s conduct and shed light on both that conduct or the results of any investigation.

266 It should have been obvious from the plaintiff’s workers compensation claim that Group 4 may have been at risk of further action. Its relations with News were close. Not to have investigated the circumstances of the plaintiff’s complaints – which, after all, concerned an important question of workplace safety, and why (if this were the case) the problem had not been disclosed either to or by its own employees – indicates such a significant disregard of its own obvious interests as an employer (quite apart from being a potential defendant) that it is difficult to take altogether seriously its present complaints of prejudice arising out of the plaintiff’s delay in commencing proceedings. Such inquiries could easily have been made and the relevant employees easily identified. Their recollections would not have been as reliable as contemporaneous accounts, of course, but I am sceptical that the loss of the records was a significantly intervening prejudicial occurrence. There is no suggestion that Group 4’s records are missing.

267 It is further submitted that Group 4 was prejudiced by the information given by the plaintiff to the investigator, Ms Phillipa Moss, on 13 March 1998, that he now claims to be false, that he did not inform Group 4 of Mr Chaloner’s misbehaviour at the time it occurred. In this respect Mr Blinkworth is the major witness for Group 4 and it followed that he was being asked to recall events, so far as they concerned him, going back many years. However, he evinced no real difficulties of recollecting important matters: this problem in the end was more hypothetical than real.

268 I have borne in mind the important consideration that a party might be prejudiced in ways it might not know. Having regard to the evidence as a whole, I am satisfied that this risk is very low in this case. News relies principally on its missing file or files as demonstrating actual significant prejudice. However, it was aware of the nature of the plaintiff’s allegations against Mr Chaloner from the time of the interview with Ms McDiarmid. Those allegations were very serious. They were investigated by News and verified to a degree sufficient for Mr Chaloner to have been dismissed. Acting properly, they would have been investigated virtually to the same degree as would or should have occurred if proceedings had been commenced. I am prepared to conclude that the papers were missing because of some organizational failing. They were papers the importance of the preservation of which was obvious, for reasons entirely distinct from the possibility of impending litigation. That is no doubt why they were kept in Ms McDiamid’s office. News’ lawyers had been consulted at an early stage and had every reason to ensure safe retention of the material. I think it may well have lost even if the plaintiff had commenced litigation before the limitation period expired.

269 The plaintiff gave evidence about his consideration of the question of commencing litigation and called evidence about it from Mr Niall Carney, a barrister, and Mr George Draca, solicitor. Mr Carney said that he first met the plaintiff in December 1997. The plaintiff complained to him about harassment and discrimination in his workplace and gave some details. He said that he had been dismissed in June 1997 and had been asked to sign a deed of release concerning the alleged misconduct of Mr Chaloner. The plaintiff wanted advice on whether he should sign it. Not surprisingly, Mr Carney advised him not to do so. The plaintiff also told Mr Carney about other events, including his treatment by Dr Butler for depression. Mr Carney asked the plaintiff to obtain a medical report and give him a “complete resume of what the story was about.” (I have already discussed this account in the context of its omitting to mention relevant complaints.)

270 Mr Carney said that the plaintiff was still employed, though he was on compensation, and therefore thought the only potential actions, for workers’ compensation or “employment law issues”, had not arisen. The position was made clearer when he obtained Dr Butler’s report of 2 April 1998 and he sent the plaintiff to see Mr Sparks, a solicitor. Mr Carney saw the plaintiff again on 19 February 1998 when he complained of having major depression and discussed his work for Group 4. Mr Carney said he sounded as though he liked his work as a fire control officer designing systems and wanted to get back to it. The plaintiff told him he was still receiving worker’s compensation. On 22 April 1998 Mr Carney attended a meeting at Messrs Minter Ellison, News’ solicitors, at which also were the plaintiff, Ms McDiarmid, Mr Paine and members of the firm. The purpose of this meeting was to obtain the plaintiff’s execution of the deed of release to which I have already referred. Mr Carney did not inform the plaintiff that he had a cause of action about the conduct to which he had been subjected, because, as he saw it, he thought he did not have any.

271 Mr Draca, the plaintiff’s solicitor in the present proceedings, first met the plaintiff in late 1999. There was a brief consultation. The plaintiff was asked to provide a detailed statement of his allegations of mistreatment. This statement was provided in about March 2000. Mr Draca undertook other enquiries, such as obtaining medical reports and witness statements. That material had not been collected until late in the year. He said that he first discussed the issue of possible common law actions with the plaintiff in January 2001. Mr McAuley of counsel had been briefed to advise.

272 Dr Butler reported to the plaintiff’s solicitors in October 2001 that the plaintiff’s psychiatric condition did not impair his ability to obtain and understand legal advice about his position. Dr Butler reported the plaintiff as having told him in September 2001 that he thought that the period of limitation ran for three years from the date of termination of his employment in 1998 and that he thought that it was most likely that a friend had told him this. He believed that this information was correct until he was told otherwise at a recent meeting with his lawyers.

273 On 25 January 2000 the plaintiff’s solicitors wrote to Group 4 to advise that they had been retained by the plaintiff to advise on his workers’ compensation rights and requesting certain particulars. Although the letter did not say so, it must have been obvious that the plaintiff would have sought advice or, at least, should have been advised about his common law rights, if any. Mr Draca said that he did not recollect any discussion with the plaintiff about any potential common law action until investigations had been completed in late January 2001.

274 In February 2000 Mr McAuley of counsel advised amongst other things that, on one view of the facts, the limitation period applicable to actions that might be brought against the defendants might have expired and leave this required to enable any such actions to proceed. The advice suggests a number of enquiries needed to be made but it does not condescend to propose with any reasonable precision what the causes of action might be. This is no criticism of counsel. The matter was very much at its tentative beginnings and much needed to be gather before any action could be commenced and the applications for leave to proceed prepared. In the result counsel (to whom Mr McCauley had passed the brief) provided a draft statement of claim and Part 33 particulars on 6 December 2000, advising retainer of eminent senior counsel. He also advised that the statement of claim should” if possible…be filed prior to Christmas”.

275 Amongst other significant issues, the question of costs loomed large since it was clear that the plaintiff could not afford to pay any substantially legal fees. The solicitors were entitled to move with a degree of circumspection for this reason as well. Briefs to advise and appear were sent to Mr Barry QC in January 2001 and, in February 2001, to Mr Semmler QC. Mr Semmler emphasised the need to commence proceedings urgently and, in substance, advised (what I might call) the precautionary filing of a statement of claim. He pointed out that the application for extension of time required “comprehensive affidavits”, noting the not insignificant problem that an “enormous amount of work” needed to be done to obtain material directly relevant to the form and substance of the proposed actions, not only for the purpose of drafting satisfactory claims but supporting the applications for leave. It was clear that this must be an expensive undertaking.

276 It should be noted that this activity was occurring in a context where both defendants had been well and truly made aware of the risk of litigation in connection with alleged misconduct by Mr Chaloner which of itself called for thorough investigation which, it appears, had either occurred or was in the course of being undertaken.

277 Of course, the plaintiff should have acted with alacrity. But he was, as I have found, not insignificantly disabled by his illness. Of course, his solicitors should not have delayed even for a short time without good reason. But even in well-run firms matters can be overlooked under the pressure of work. The delay in this case towards the end of 2000 and at the beginning of 2001 should not have occurred but is not substantial and not, I think, culpably careless or deliberately tactical.

278 It is necessary to give due weight to the fundamental consideration that the plaintiff’s causes of action (with the possible exception of the action for negligence in respect of PTSD) had expired by the time he commenced the proceedings. The ultimate question is whether it is “just and reasonable” to extend the limitation period to permit the plaintiff to sue. This test is indistinguishable from the test applying to s151D(2) of the Workers Compensation Act, which is whether “it is fair and just that leave should be granted”: Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530 per Gleeson CJ; Itex Graphic Pty Ltd v Elliott [2002] NSWCA 104 per Ipp AJA at [87]. In applying this test, a number of factors must be considered. They are by no means limited to the issue of actual or potential prejudice to a putative defendant in the conduct of the time-expired proceedings. Amongst the prejudicial effects of delay from the community’s point of view is that of the desirability that possible parties to litigation be able to organise their affairs on the basis that claims have lapsed and they have no liabilities beyond a definite period. There is also the public interest in the rapid settlement of disputes. Of course, there is also the public interest in permitting cases to proceed even where the limitation period has expired if it is fair and just to do so, an interest which is explicitly recognized by the jurisdiction given by the legislation to the Court to grant leave where such is the case. But it is obvious that such cases constitute exceptions to the general rule preventing such litigation from being undertaken: see, eg, Ipp AJA ibid at [89-90] and cases there cited. The overriding requirement is that the applicant “show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554 per McHugh J.

279 Having regard to the circumstances as a whole, including especially the nature of the plaintiff’s case depending upon the gross misconduct of Mr Chaloner who was a senior employee of News and the day-to-day actual supervisor of the plaintiff to the knowledge of and as agreed to by Group 4, I consider that the plaintiff has established that it is just and fair that he be given leave to proceed. There are some unexplained gaps in the delay in commencing action once the basis of the action became clear enough to advise its undertaking but I do not think these to be of such significance as to qualify the appropriateness of granting leaving on the circumstances taken as a whole.

280 Nor do I consider that the defendants have been unfairly prejudiced in the preparation or presentation of their cases by virtue of the delay in commencement of the proceedings.

DAMAGES

Apportionment

281 News has submitted that it should be indemnified by Group 4, in the event that the plaintiff’s evidence on reporting his complaints to Mr Blinkworth was accepted. I have not so found. Otherwise, the defendants have not made substantive submissions on this point. It is complicated by issues of aggravated and exemplary damages as well as the different impacts of Division 3 of Part 5 and s151Z of the Workers Compensation Act 1987. Broadly speaking, I would assess the differing contributions to the plaintiff’s injury as 65% attributable to News and 35% attributable to Group 4. This represents, in large part, a reflection of the fact that Mr Chaloner was News’ employee and that Mr Kamaledine reported some of his conduct to Mr Paine. Having regard to my findings on several heads of damages, however, the way in which this apportionment works its way out in the ultimate judgment needs to be further considered by the parties and I will give them an opportunity to be heard on the issues raised.

The extent of the plaintiff’s incapacity

282 I have concluded that, from the time the plaintiff was dismissed from his employment with Group 4 he has been, for all intents and purposes, completely incapacitated for any form of paid employment. I also consider that he is likely to remain so incapacitated for the foreseeable future. There is nevertheless some reasonable possibility that he might become well enough for some work, though he will be able only to undertake casual work that does not impose significant demands of compliance with timetable or achievable goals. I assess this likelihood at 15%.

Out-of-pocket expenses

283 The Group 4 workers’ compensation insurer has paid the plaintiff’s expenses to $111,403.12. Other out-of-pocket expenses have no doubt been incurred since evidence was completed. I leave this item for the parties to agree and, failing agreement, to mention the matter and obtain a date for determination.

Future medical expenses

284 Dr Klug thought that the plaintiff needed to be under the care of a psychiatrist to oversee his treatment and a competent psychologist for therapy. He thought that this should occur “frequently”. Dr Klug also thought that the plaintiff might require intermittent inpatient treatment both for treatment of any exacerbations of his conditions and for family respite. Dr Butler thought that that the plaintiff would continue to need supportive psychotherapy. He was seeing the plaintiff every three weeks but the doctor would like that reduced to perhaps every four to six weeks if he showed any improvement. His anti-depressant medication (Avanza) needed to be continued. Dr Butler charged $178 a session. The cost of the medication was between $21 and $23 a box, which should last a month. Dr Bokor also thought that the plaintiff would benefit from seeing a psychologist such as Ms Bokor. Ms Bokor considered that the plaintiff should continue to obtain therapy from a psychologist fortnightly “for a long time”. The relevant rate is $160 an hour.

285 It is not surprising that there is no specificity about the plaintiff’s need for future care. I am satisfied that it is substantial and that it will continue for many years. It seems to me that the best estimate that I can make is that, overall, the plaintiff will need to see a psychiatrist for supervision, both medical and pharmacological, every six weeks and that the relevant rate is $178 a session. He will need to see a psychotherapist every two weeks at $160 a session. An allowance of one week every two years for hospitalization should be made, plus three weeks a year inpatient care for respite care. Anti-depressant medication at $23 a month should also be allowed. This care should be calculated over the plaintiff’s life expectancy. The chances of improvement are so speculative that I do not think that it is fair to discount the present value of these costs. Moreover, the increasing pressures of age and illness may rather increase the plaintiff’s need for help rather than suggest any reduction.

286 I invite the parties to agree to an appropriate sum to reflect these findings, in the absence of which the matter can be set down before me for determination.

Economic loss

287 As at the date the plaintiff’s employment was terminated by Group 4, his gross salary was $60,000pa, net after tax $39,205. It is submitted that on his behalf that a fairer comparable salary was that of Mr Chaloner who, at the time of dismissal, was paid $85,200pa. On the other hand, it is submitted that the plaintiff’s salary was artificially high by virtue of the “accident of history” that he was employed at the News site, the contract for which was subsequently lost by Group 4 and that, if he went to work at other sites for Group 4, his salary would have been comparable to that of other site security managers – employed at major city sites – whose salaries in 1997 were $40,000 and $30,000 pa. These salaries are so much lower than that of the plaintiff, I am satisfied that their responsibilities could not have been truly comparable.

288 In my view, the measure of plaintiff’s economic loss must start at his earnings as at the date of dismissal. The evidence does not permit me to be satisfied to the relevant degree that he was capable of earning at the rate paid to Mr Chaloner, as contended by the plaintiff, who submits that he would have been able to undertake work at the management level represented by Mr Chaloner. I have profound doubts that this is the case. His demonstrated and claimed responsibilities were at a somewhat lower level of competence, although there is no contradiction of his evidence that Mr Chaloner took credit for some significant parts of his systems design work at various News sites. Moreover, the plaintiff’s ability to develop his work skills and management experience was seriously handicapped by the disabling effects of Mr Chaloner’s treatment of him.

289 The plaintiff’s evidence that he was doing much more than merely acting as Mr Chaloner’s assistant on the Surry Hills site was uncontradicted and is sufficient, I think, to show that the plaintiff’s true earning capacity was not sufficiently recognized by his employer and reflected in his salary.

290 I assess the appropriate figure at the gross salary of $70,000pa. I think that this would have placed the plaintiff at close to the top of his level of competence, experience over time aside. In the absence of further evidence on likely progression, I can make no assessment as to whether this was reasonably likely or what salary he might have earned. I would hold that the plaintiff would, more probably than not, work to the age of 65 years.

291 I leave to the parties the responsibility of agreeing this element of the plaintiff’s damages, failing which, I will hear further argument and determine the matter.

Interest and

Fox v Wood

292 Interest is agreed at 2%. It should be payable from the date of dismissal, 9 November 1998. The Fox v Wood figure is agreed at $10,430.99.

Vicissitudes

293 As mentioned, an allowance of 15% for the normal vicissitudes of life, should be made, together with a further allowance of 10% in respect of the chance that the plaintiff will recover somewhat and be able to undertake paid employment once more – a total of 25%.

General damages

294 These proceedings were commenced on 20 March 2001 and, accordingly, before s151G of the Workers Compensation Act 1987 in its present form applied to prohibit the award of damages for non-economic loss. The form of that section that applies to this case requires damages under this head “to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded…in a most extreme case”, that amount being $204,000: s151G(2) and (3).

295 The plaintiff has suffered serious psychological injury. Accepting, as I do, Dr Butler’s opinion about the aetiology of the plaintiff’s illness, that injury was present since at least November or December 1996. It was as at this date that the plaintiff’s action for negligence crystallized. It is for the psychological injury that he is to be compensated. Accordingly, I do not see that it is possible for damages to be awarded under this particular head for the suffering that he undoubtedly underwent to this point, the cumulative effect of which caused the injury.

296 At the same time, the infliction of that conduct in the workplace was in breach of the plaintiff’s contract of employment with Group 4 and it seems to me that he is entitled to compensatory damages of a non-economic kind for these breaches. Division 3 of Part 5 of the Act applies “to an award of damages in respect of…an injury to a worker…caused by the negligence or other tort of the worker’s employer even though the damages are recovered in an action for breach of contract or in any other action”: s151E(1)and (3). Accordingly, it seems to me that s 151G does not apply to damages for breaches of a contract of employment where the damages are awarded for suffering falling short of the compensable injury. To use the metaphor previously mentioned, the Division seems to me to apply to the death but not to damages for the preceding thousand cuts, however painful they might have been, because the “cuts”, being to the plaintiff’s psyche only, are not compensable without resulting psychological illness.

297 This issue was not the subject of specific submissions by the parties and I do not think that I should determine it in the absence of giving them an opportunity to do so. It is obvious from my account of Mr Chaloner’s “internal” misconduct – which excluded the sexual assaults – that the breaches were unremitting and represented a serious interference with the plaintiff’s work satisfaction as well as causing undue and continuous anxiety and pain. If the tentative view expressed by me is correct, I would award the sum of $150,000 under this head in respect of over four years of malicious mistreatment at Mr Chaloner’s hands. However, I will first give the parties the opportunity to address this aspect of the case.

298 News was not the plaintiff’s employer and is not liable for breach of any contract of employment.

299 In respect of general damages, I note that the plaintiff’s enjoyment of life, including his ability to undertake and enjoy worthwhile employment has been substantially, if not entirely, destroyed by his illness. He may make some recovery but it will, in all probability, be relatively slight. Associated with his depression is significant anxiety. He still feels badly demeaned and suffers from intense feelings of humiliation. His ability to enjoy his family and friends except episodically has been taken from him. He is emotionally fragile and friends are not likely to be easily made or remain long-suffering. He is physically well but will be an emotional cripple for the rest of his life.

300 Had it not been for the Act, I would have awarded general damages of $200,000. News’ liability in tort to the plaintiff is unaffected by the Act (subject to the effect of s151Z). As to Group 4, this is not a most extreme case, but it is close. In respect of the liability of Group 4, I would award the sum of $150,000.

Aggravated and exemplary damages

301 I have held that News is vicariously liable for the acts of its employee, Mr Chaloner. Mr Chaloner held a senior management position within the company. I have also held that, more probably than not, Mr Paine, his superior, was made aware of at least one occasion of grossly improper conduct by Mr Chaloner. Although this latter finding does not exclude the reasonable possibility that Mr Paine was, in fact, not so informed, it seems to me that I am bound to deal with the question of damages on the basis that he was so informed.

302 In Gray v Motor Accident Commission (1998) 196 CLR 1, Gleeson CJ, McHugh, Gummow and Hayne JJ said -

“[15] In considering whether to award exemplary damages, the first, if not the principal, focus of the enquiry is upon the wrongdoer, not upon the party who was wronged. (The reaction of the party who is wronged to high-handed or deliberate conduct may well be a reason for awarding aggravated damages in further compensation for the wrong done. But it is not ordinarily relevant to whether exemplary damages should be allowed.) The party wronged is entitled to whatever compensatory damages the law allows (including, if appropriate, aggravated damages). By hypothesis then, the party wronged will receive just compensation for the wrong that is suffered. If exemplary damages are awarded, they will be paid in addition to compensatory damages and, in that sense, will be a windfall in the hands of the party who was wronged. Nevertheless, they are awarded at the suit of that party and, although awarded to punish the wrongdoer and deter others from like conduct, they are not exacted by the State or paid to it.

…

[20] If, as we have earlier suggested, the remedy is exceptional in the sense that it arises (chiefly, if not exclusively) in cases of conscious wrongdoing in contumelious disregard of the plaintiff's rights, at least two further questions arise: are exemplary damages available where the plaintiff's claim is for damages for negligence rather than some intentional wrong, and is the award of exemplary damages a matter of right or does it depend on the exercise of a discretion informed by some identifiable criteria?

…

[22]… For present purposes it is enough to note two things. First, exemplary damages could not properly be awarded in a case of alleged negligence in which there was no conscious wrongdoing by the defendant. Ordinarily, then, questions of exemplary damages will not arise in most negligence cases be they motor accident or other kinds of case. But there can be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff or persons in the position of the plaintiff. Cases of an employer's failure to provide a safe system of work for employees in which it is demonstrated that the employer, well knowing of an extreme danger thus created, persisted in employing the unsafe system might, perhaps, be of that latter kind...No doubt other examples can be found.”

303 It cannot seriously be maintained that Mr Chaloner’s conduct does not fully justify the award of substantial exemplary damages. In light of his senior position, in which his unremitting abuse of the plaintiff occurred when he acted on behalf of his employer, I consider that it follows that News must be accountable also for the payment of such damages. If this be doubtful, it seems to me that my conclusions concerning Mr Paine’s probable knowledge – though limited, but which should have led to further inquiry – lead to the same conclusion and strengthen the link between Mr Chaloner’s misconduct and the corporation that employed him. After all, a corporation can only act through its agents and employees. I note that it was not sought to argue that the learning concerning the “mind of the company” that applies to criminal responsibility also applies to the liability to pay exemplary damages. I have not felt it necessary to make any findings in this regard.

304 The purpose of exemplary damages is to punish the wrongdoer and deter repetition of the wrongdoing. In my view, the gravity of Mr Chaloner’s conduct was so grave and its consequences so serious that an award of $150,000 is called for. To make things clear, I have not punished News for the sexual misconduct of Mr Chaloner or for the “external” abuse.

305 In respect of Group 4, the abuse of the plaintiff occurred essentially because of the failure of the company to ensure that its employees – however junior – understood what they should do if they witnessed the kind of conduct that they saw occurring to the plaintiff at Mr Chaloner’s hands. This was rather by way of omission than a contumelious disregard of the plaintiff’s rights, albeit that it occurred in the workplace and the plaintiff was placed by Group 4 in practical subjection to Mr Chaloner’s control. Accordingly, it seems to me that I should reject the claim for exemplary damages against Group 4. For the same reason, I would not award aggravated damages against Group 4. At all events, it seems to me that s151R of the Act prevents an award of exemplary damages against Group 4.

306 As to aggravated damages, several problems arise to which submissions have not been directed. The first arises in respect of Group 4 from the terms of 151G of the Act (as it was) and poses the question whether aggravated damages are covered by that section and, if so, to what extent. I have already decided that, at all events, I would not order Group 4 to pay aggravated damages so – to that extent – the question is hypothetical. At the same time, it seems to me that, against the risk that I may be mistaken about that conclusion, this matter needs to be considered. It might also impact upon the effect of s151Z on the ultimate contributions payable by the defendants. This is a matter of complexity upon which the assistance of counsel is necessary.

307 The second, and more fundamental, problem is posed by the decision in Hunter Area Health Service v Marchlewski & Anor [2000] NSWCA 294 in which Mason P (Stein and Heydon JJ agreeing) held (at [120]) that “the law relating to pure psychiatric injury precludes recovery of a separate component of aggravated damages to compensate for the hurt, humiliation and indignation stemming from the manner in which…[the defendant] responded to the crisis it had created”. That was a case of nervous shock but, on the face of it, the principle referred to by the President applies in the present case to both defendants.

308 It seems to me that, in this respect also, I should give the parties the opportunity to make further submissions.

ORDERS

1. I give judgment in favour of the plaintiff against the defendants.

2. News is to pay the plaintiff $150,000 in exemplary damages.

3. Otherwise the matter is stood over for agreement or further submissions and determination as indicated.

**********

28/06/2005 - Added "Anti-Discrimination Act 1977" to the cover sheet - Paragraph(s) 184

Citations

Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618

Most Recent Citation

Cases Citing This Decision

12

Nationwide News Pty Ltd v Naidu (No 2) [2008] NSWCA 71

Nationwide News Pty Ltd v Naidu [2007] NSWCA 377

New South Wales v Rogerson [2007] NSWCA 346

Cases Cited

12

Statutory Material Cited

4

Hunter Area Health Service v Marchlewski [2000] NSWCA 294

Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104

New South Wales v Lepore [2003] HCA 4

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CITATION:	Naidu v Group 4 Securitas Pty Ltd & Anor [2005] NSWSC 618 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	24/5/04-28/5/04, 31/5/04-4/6/04, 7/6/04-10/6/04
JUDGMENT DATE :	24 June 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	1. Judgment in favour of the plaintiff against the defendants; 2. News is to pay the plaintiff $150,000 in exemplary damages; 3. Otherwise the matter is stood over for agreement or further submissions and determination as indicated; 4. Costs reserved

CATCHWORDS:	Negligence - wilful acts of vilification - breach of contract of employment - resulting psychiatric illness - employee placed under authority of customer's manager - misconduct by manager - misconduct prohibited - liability of manager's employer - liability of employee's employer - effect of failure to complain - vicarious liability of each employer - aggravated and exemplary damages
LEGISLATION CITED:	Anti-Discrimination Act 1977 Limitation Act 1969 s60C Racial Discrimination Act 1975 Workers Compensation Act 1987 s151D
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Bugden v Rogers (unreported, NSWCA 23 November 1993; BC 9302234) Canterbury Bankstown Rugby League Football Club Limited v Rogers; Deatons Pty Limited v Flew (1949) 79 CLR 370 Gordon v Tamworth Jockey Club Inc [2003] NSWCA 82 Gray v Motor Accident Commission (1998) 196 CLR 1 Hunter Area Health Service v Marchlewski & Anor [2000] NSWCA 294 Itex Graphic Pty Ltd v Elliott [2002] NSWCA 104 Janvier v Sweeney [1919] 2 KB 316 Kooragang Investments Pty Limited v Richardson & Wrench Limited [1982] AC 462 Lister v Hesley Hall Limited [2002] 1 AC 215 Lloyd v Grace, Smith & Co [1912] AC 716 Morris v C W Martin & Sons Limited [1966] 1 QB 716 New South Wales v Lepore & Ors [2003] HCA 4; 2003 112 CLR 511 Salido v Nominal Defendant (1993) 32 NSWLR 524 ; per Ipp AJA Starks v R S M Security Pty Ltd & Ors [2004] NSWCA 351 Tame v NSW (2002) 211 CLR 317 TNT Australia Pty Limited v Christie & 2 ors; [2003] NSWCA 47 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Devandar NAIDU (Plaintiff) Group 4 Securitas Pty Limited (First Defendant) Nationwide News Limited (Second Defendant)
FILE NUMBER(S):	SC 20188/01
COUNSEL:	Mr D T Kennedy SC, Mr B Slowgrove, Mr M McCarty (Plaintiff) Mr G F Little SC, Mr G Parker (First Defendant) Mr S E Torrington (Second Defendant)
SOLICITORS:	Albert A Macri (Plaintiff) P W Turk & Associates (First Defendant) Wootton & Kearney (Second Defendant)