New South Wales v Mannall - [2005] NSWCA 367

CITATION:
STATE OF NEW SOUTH WALES v MANNALL [2005] NSWCA 367

HEARING DATE(S):
30 and 31 May 2005, 1 June 2005

JUDGMENT DATE:

28 October 2005

JUDGMENT OF:
Mason P at 1; Giles JA at 171; Tobias JA at 172

DECISION:
Appeal dismissed with costs.

CATCHWORDS:
NEGLIGENCE - workplace negligence - employer's duty of care - psychiatric injury - appointment as Team Leader - victimisation, harassment, humiliation, abuse by co-workers - actions and inaction of supervisor - vicarious liability of employer - foreseeability of risk of injury - preventative measures - enquiry - reliability of plaintiff's testimony - foreseeability of injury - reasonably practicable means - causation - EVIDENCE - business record - s69(3)(a) Evidence Act - discretion under s135. (ND)

LEGISLATION CITED:
s69(3)(a) of the Evidence Act

CASES CITED:
ASIC v Rich [2005] NSWSC 417
Australian Securities and Investments Commission v Rich [2005] NSWCA 152
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Czatyrko v Edith Cowan University [2005] HCA 14, 214 ALR 349, 79 ALJR 839
Koehler v Cerebos (Aust) Ltd [2005] HCA 15, 214 ALR 355
Mannall v State of New South Wales [2001] NSWCA 327
New South Wales v Seedsman [2000] NSWCA 119, 217 ALR 583
O'Leary v Oolong Aboriginal Corp Inc [2004] NSWCA 7, Aust Torts Reports §81-747
Ringrow Pty Ltd v BP Australia Ltd (2003) 130 FCR 569
State of New South Wales v Heins [2005] NSWCA 258
Tame v New South Wales (2002) 211 CLR 317
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Whisprun Pty Ltd v Dixon [2003] HCA 48, 200 ALR 447

PARTIES:
STATE OF NEW SOUTH WALES v Marilyn MANNALL

FILE NUMBER(S):
CA 40511/2004

COUNSEL:
Appellant: P Deakin QC/ J Wynyard
Respondent: B Toomey QC/ J Sainty

SOLICITORS:
Appellant: Gillis Delaney Brown
Respondent: Walsh & Blair, Wagga Wagga

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 19/1998

LOWER COURT JUDICIAL OFFICER:
McLoughlin DCJ

CA 40511/ 2004

MASON P
GILES JA
TOBIAS JA
Friday 28 October 2005

STATE OF NEW SOUTH WALES v Marilyn MANNALL

JUDGMENT

1 MASON P:

Overview

2 Following a trial in the District Court spanning 4 weeks in mid 2003 the respondent recovered a verdict of $339,722 for psychiatric injury stemming from workplace negligence. Judge McLoughlin gave lengthy reasons in a judgment delivered on 13 May 2004.

3 The respondent had alleged that, following her appointment in May 1994 to the position of Team Leader, Clerk, Grade 7/8 Wagga Wagga within the Department of Housing, she was subjected to victimisation, harassment, humiliation and abuse in the workplace causing her to suffer psychiatric injury. It was further alleged that the risk of injury was or should have been recognised by her employer, with steps being taken to prevent or ameliorate the situation that triggered it.

4 According to the opening portion of the appellant's written submissions, the only issues arising for consideration in this appeal are liability issues, namely:

(a) whether the trial judge was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 367
Decision Date: 28 October 2005

CaseChat Overview and Summary

The New South Wales Court of Appeal considered a claim by Ms Mannall against her employer, the State of New South Wales, for psychiatric injury allegedly suffered as a result of workplace bullying and harassment. Ms Mannall alleged that her appointment as Team Leader exposed her to victimisation, harassment, humiliation, and abuse by her co-workers, and that her supervisor's actions and inactions contributed to her injury. The State of New South Wales was therefore alleged to be vicariously liable for the harm suffered by Ms Mannall.

The central legal issues before the Court of Appeal were whether the employer breached its duty of care to Ms Mannall by failing to take reasonably practicable steps to prevent the foreseeable risk of psychiatric injury arising from the workplace environment, and whether such a breach caused Ms Mannall's injury. The Court also considered the admissibility of certain business records under section 69(3)(a) of the *Evidence Act 1995* (NSW) and the exercise of discretion under section 135 of that Act.

The Court of Appeal upheld the primary judge's findings, concluding that the risk of psychiatric injury to Ms Mannall was foreseeable and that the employer had failed to implement reasonably practicable preventative measures. The Court found that the evidence supported the conclusion that the employer's inaction, particularly in relation to the supervisor's conduct, contributed to the hostile work environment and the subsequent psychiatric injury. The reliability of Ms Mannall's testimony was accepted, and the admissibility of the business records was affirmed, with no grounds found to exercise discretion to exclude them.

The appeal was dismissed, and the State of New South Wales was ordered to pay Ms Mannall's costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	STATE OF NEW SOUTH WALES v MANNALL [2005] NSWCA 367
HEARING DATE(S):	30 and 31 May 2005, 1 June 2005
JUDGMENT DATE:	28 October 2005
JUDGMENT OF:	Mason P at 1; Giles JA at 171; Tobias JA at 172
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	NEGLIGENCE - workplace negligence - employer's duty of care - psychiatric injury - appointment as Team Leader - victimisation, harassment, humiliation, abuse by co-workers - actions and inaction of supervisor - vicarious liability of employer - foreseeability of risk of injury - preventative measures - enquiry - reliability of plaintiff's testimony - foreseeability of injury - reasonably practicable means - causation - EVIDENCE - business record - s69(3)(a) Evidence Act - discretion under s135. (ND)
LEGISLATION CITED:	s69(3)(a) of the Evidence Act
CASES CITED:	ASIC v Rich [2005] NSWSC 417 Australian Securities and Investments Commission v Rich [2005] NSWCA 152 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Czatyrko v Edith Cowan University [2005] HCA 14, 214 ALR 349, 79 ALJR 839 Koehler v Cerebos (Aust) Ltd [2005] HCA 15, 214 ALR 355 Mannall v State of New South Wales [2001] NSWCA 327 New South Wales v Seedsman [2000] NSWCA 119, 217 ALR 583 O'Leary v Oolong Aboriginal Corp Inc [2004] NSWCA 7, Aust Torts Reports §81-747 Ringrow Pty Ltd v BP Australia Ltd (2003) 130 FCR 569 State of New South Wales v Heins [2005] NSWCA 258 Tame v New South Wales (2002) 211 CLR 317 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 Whisprun Pty Ltd v Dixon [2003] HCA 48, 200 ALR 447
PARTIES:	STATE OF NEW SOUTH WALES v Marilyn MANNALL
FILE NUMBER(S):	CA 40511/2004
COUNSEL:	Appellant: P Deakin QC/ J Wynyard Respondent: B Toomey QC/ J Sainty
SOLICITORS:	Appellant: Gillis Delaney Brown Respondent: Walsh & Blair, Wagga Wagga

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 19/1998
LOWER COURT JUDICIAL OFFICER:	McLoughlin DCJ