Ogden v Bells Hotel Pty Ltd
[2009] VSC 219
•5 June 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7666 of 2007
| SUSAN OGDEN | Plaintiff |
| v | |
| BELLS HOTEL PTY LTD | Defendant |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 21-24, 27-31 October, 3, 5-7, 10-12 November 2008 | |
DATE OF JUDGMENT: | 5 June 2009 | |
CASE MAY BE CITED AS: | Ogden v Bells Hotel Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 219 | |
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NEGLIGENCE –Duty to prevent harm from criminal activity –Plaintiff employee victim of robbery at hotel – Psychiatric injury – Whether breach of employer’s duty by failure to take reasonable security measures - Effect of prior stressors – Subsequent police raid of victim’s home - Improper police behaviour - Causation - Whether police raid a novus actus interveniens – Damages – Whether damages for loss of earning capacity should include compensation for loss of benefit of investment of employer’s superannuation contribution
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Meldrum QC with Mr M. Walsh | Clark Toop and Taylor |
| For the Defendant | Mr R. H. Gillies QC with Ms M. Britbart | Minter Ellison |
TABLE OF CONTENTS
The Claim............................................................................................................................................ 2
Duty of Care........................................................................................................................................ 2
Breach................................................................................................................................................... 3
Causation............................................................................................................................................. 3
Contributory Negligence.................................................................................................................. 4
Damages............................................................................................................................................... 4
The witnesses...................................................................................................................................... 4
The facts............................................................................................................................................... 5
Background.................................................................................................................................... 5
Employment at Bells Hotel.......................................................................................................... 8
Ms Ogden’s duties........................................................................................................................ 9
Security at Bells Hotel................................................................................................................. 11
The “two man rule”.................................................................................................................... 13
The robbery.................................................................................................................................. 19
Ms Ogden’s treatment and progress........................................................................................ 22
The Bells’ relationship with police after the robbery............................................................. 26
The Police raid............................................................................................................................. 27
Ms Ogden’s condition after the police raid............................................................................. 29
Conclusions....................................................................................................................................... 39
Breach............................................................................................................................................ 39
Causation...................................................................................................................................... 43
Contributory negligence............................................................................................................ 45
Damages....................................................................................................................................... 46
Pain and suffering and loss of enjoyment of life...................................................................... 46
Loss of earning capacity........................................................................................................... 46Pre-trial earnings................................................................................................................... 46
Post trial earnings and superannuation............................................................................. 47
Overall assessment..................................................................................................................... 49
HER HONOUR:
The Claim
The plaintiff (“Ms Ogden”) claims damages for injuries which she alleges she sustained as a result of the negligence of the defendant (“Bells”), when she was the manageress of its “Bells Hotel” business and involved in an armed robbery on 23 May 2005. Her alleged injuries are of a psychological or psychiatric nature.
Bells denies that it was negligent. Alternatively, it denies that any negligence on its part caused injury, loss or damage to Ms Ogden. It also says that any injury, loss or damage she did suffer was caused by or contributed to by a police raid upon her home about a year after the robbery and by her own negligent failure to follow instructions in relation to opening the hotel or, alternatively, by her entry into the hotel when aware of the associated risks.
Duty of Care
It is common ground that, in the context of their relationship of employer and employee, Bells owed Ms Ogden a duty to take reasonable care to prevent harm to her caused by criminal activity.[1] The duty was one to provide a safe system of work.[2] It was not a duty to prevent harm per se[3] or a warranty of safety,[4] but rather one to take reasonable care to avoid exposing an employee to an unnecessary risk of injury.[5]
[1]Public Transport Corporation v Sartori [1997] 1 VR 168 at 173; Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070 at [1071], per Sugerman, Asprey and Mason JJA; Ashrafi Persian Trading Co Pty Ltd t/a Roslyn Gardens Motor Inn & Anor v Ashrafinia [2001] NSWCA 243 at [64] per Heydon JA (Mason P and Handley JA agreeing).
[2]Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [110] per Hayne J.
[3]Roads and Traffic Authority v Dederer (2007) 234 CLR 330 at [51] per Gummow J (Callinan and Heydon agreeing).
[4]Rosstown Holdings Pty Ltd v Mallinson [2000] VSCA 166 at [19] per Callaway JA.
[5]Czartyrko v Edith Cowan University [2005] HCA 14 at [12]; (2005) 214 ALR 349 at 353 [12].
Bells, however, emphasised the significance in the determination of the scope of responsibility in the context of the unpredictability and irrationality which may be the hallmarks of criminal conduct.
Breach
There is an issue between the parties as to whether Bells breached its duty of care, but it is common ground that the assessment of the reasonableness of its behaviour must be made from a prospective rather than a retrospective viewpoint.[6]
[6]Roads and Traffic Authority v Dederer (2007) 234 CLR 330 at [65], per Gummow J.
Causation
Bells argues that Ms Ogden has failed to prove that any reasonable steps which it might have taken to satisfy its duty of care would have prevented the robbery. It says that she has failed to establish a nexus, assessed with reference to common sense, between any negligence on its part and the robbery by a person who, it should be inferred, would have been inside the premises at some stage and would have noted the existing security alarms, cameras and other devices.
Bells also contends that the subsequent police raid was a novus actus interveniens, severing the chain of causation between the robbery and some of the damage sustained by Ms Ogden.
The parties agree that the Court should be guided by the observations of Lord Wright in the The Oropesa[7] that:
The mere fact that human action intervenes does not prevent the sufferer from saying that the injury which is due to that human action as one of the elements in the sequence is recoverable from the original wrongdoer …
To break the chain of causation it must be shown that there is something which I will call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic.
[7][1943] P 32 at 37, 39.
Counsel for Bells argue that the manner in which the police raid was conducted as part of the investigation of the robbery was not reasonably foreseeable and was coincidental. The consequences of the police raid were outside the bounds of the loss and damage for which their client should be held responsible. Counsel refer to inexcusably bad or gross medical negligence which has been characterised as a novus actus interveniens[8] and, reasoning by analogy, contend that the grossly improper and unprofessional conduct of police broke the chain of causation.
[8]See: Mahoney v Kruschich (1985) 156 CLR 522 at 530.
Counsel for Bells acknowledge that part of Ms Ogden’s ongoing symptoms are referable to the robbery. They argue, however, that a substantial proportion of her symptoms and disabilities have been caused by the police raid aggravating her condition or giving rise to new and different symptoms.
Counsel for Ms Ogden respond that the police raid was not a novus actus interveniens and that Bells’ negligent breach of its duty of care caused both the injury she suffered as the direct consequence of the robbery and that which was the effect of the raid.
Contributory Negligence
A duty of care relating to a risk to personal safety may be owed by an employee even when the employer has a duty to guard against that very risk; the question is one of fact in all the circumstances.[9] Bells argues that Ms Ogden was negligent in entering the hotel alone, disobeying an instruction described as “the two man rule” (the existence of which she denies). In the alternative, counsel for Bells point to a number of factors indicating Ms Ogden’s awareness of her own vulnerability, arguing that she was negligent in entering the hotel alone in all the circumstances.
[9]Astley v Austrust Ltd (1999) 197 CLR 1 at [21], [30].
Ms Ogden denies any contributory negligence.
Damages
The parties are at odds as to the appropriate amount of any damages to be awarded in the event that Ms Ogden is successful. The issues between them include the age at which she might have retired and whether any amount should be allowed for loss of the profits of any investment of what would have been the employer’s nine per cent contribution.
The witnesses
Ms Ogden gave evidence. She also called:
(a)her children, Ms Eliza Ogden and Mr Ben Ogden;
(b)Mr Ben Ogden’s girlfriend, Ms Nicky Macalister;
(c)Ms Maria Payad, a chef from Bells Hotel;
(d)her friend, Ms Anne Marie Bartholomew;
(e)her treating general practitioner, Dr Andrew Haines;
(f)her treating psychologist, Dr Penny Brabin;
(g)medico-legal expert witnesses, the psychiatrists, Dr Michael Epstein and Dr Edward Cole;
(h)a former police officer and consultant to the security industry, Mr Tony Zalewski; and
(i)Mr Gary Allan, a forensic chartered accountant.
Bells called:
(a)its directors, Mr Bill Bell and Mrs Kaye Bell;
(b)the former head chef at Bells Hotel, Ms Donna Petrie; and
(c)Mr Paul Arthur, Bells Hotel’s former bar manager and current manager.
Counsel for Bells made a strong attack on Ms Ogden’s credit. I, however, preferred the evidence of Ms Ogden, her children and Ms Macalister, Ms Bartholomew and Ms Payad to that of Mr and Mrs Bell and Ms Petrie to the extent of any conflict. I often found Mr and Mrs Bell’s accounts of events unconvincing, particularly when they were attempting to explain documents which appeared to contradict their testimony.
Mr Arthur, on the other hand, struck me as a convincing witness who tried to give an accurate account of events as he remembered them.
The facts
I now turn to my findings of fact in this case.
Background
Ms Ogden was born on 4 April 1960 and educated to Year 11 level at Croydon High School. After leaving school, she worked initially as a receptionist and then as a salesperson at the “Adorna” jewellery business owned by her sister and brother‑in‑law.
In about 1982, she married a man with whom she had had a relationship for approximately two years. Their marriage ended in an amicable divorce after only six months.
On 23 May 1984, just after her 24th birthday, Ms Ogden was the victim of a hold‑up at the Adorna jewellery store. Two men entered after she and her sister had opened the store that morning. They produced a gun and took the women upstairs to a safe. Ms Ogden’s sister was made to open the safe and she and Ms Ogden were forced to lie on the ground, face down and were tied up. Ms Ogden’s sister was subsequently taken downstairs to a larger safe. The robbers were disturbed. They had threatened to kill Ms Ogden and her sister and a gun had been pressed to Ms Ogden’s head during the course of the robbery. At the time, she was conscious of the recent murders of two city jewellers in the course of a robbery of nearby premises. She was very frightened, but felt comforted by her sister’s presence.
After the Adorna robbery, Ms Ogden received counselling, at the suggestion of police, from Dr Ogden, then the Victorian Police Surgeon. Dr Ogden treated her for about three months before they commenced a relationship. Ms Ogden received further counselling from another practitioner for less than six months.
In about 1984 or 1985, Dr Ogden received a Churchill Fellowship and Ms Ogden accompanied him upon his resulting trips to Germany and the USA. The Ogdens married in 1986. They lived at Kallista where they conducted a mail order and cut flower business. Ms Ogden worked in the business with assistance from her husband when he was available. She worked until she was about seven months pregnant with Ms Eliza Ogden, who was born on 4 June 1987. She worked again regularly from when the baby was about four months old until she was about six months pregnant with Mr Ben Ogden, who was born on 3 December 1988.
In about 1987 or 1988, in the course of his duties as Police Surgeon, Dr Ogden was involved in the removal of children from members of the Hamilton‑Byrne sect. This affected Ms Ogden in various ways. She received a false report from a sect member that her husband had been killed during the raid. Threats were made to the family, with the result that police provided them with 24 hour protection for some weeks. A hole in a window at her home was investigated by police as a possible bullet hole; this turned out not to be the case. The sect subjected the Ogdens to unwanted attention for two years and Ms Ogden became very wary and frightened for her family. She and Dr Ogden each received $5,000 by way of compensation for their psychological reactions to the incident.
The marriage broke up in about 1992. Dr Ogden subsequently became bankrupt and the only assets of the marriage retained by Ms Ogden were pieces of furniture. The two children remained with her.
Dr Ogden subsequently made some contributions towards the children’s maintenance, but did not contribute to the cost of their education. Each attended a state primary school. Ms Eliza Ogden was later to obtain a half scholarship to a private secondary school. Her brother went on to attend a private school for one year, before returning to the state system.
Ms Ogden survived on a pension, doing domestic cleaning and working for a short time at a newsagency, during school hours. At about the time of the marriage breakdown, she also suffered the stress of five year old Ms Eliza Ogden contracting meningitis.
When Mr Ben Ogden was in primary school, Ms Ogden became friendly with Ms Anne Marie Bartholomew who was the mother of one of his friends. Ms Bartholomew thought Ms Ogden was an elegant, well-dressed and well-groomed woman who “stood out in a crowd”. They soon formed a close friendship and kept in almost daily contact. They were involved in school committees and in socialising with other mothers. It was Ms Ogden who was the source of ideas for outings with her friend.
Ms Ogden enjoyed an active social life. She was an excellent cook and often entertained friends, including Ms Bartholomew, at dinner parties. She was also heavily involved in her children’s educational and recreational activities; she coped very well as a single parent.
She experienced the significant losses in 1997 and 1998 of both her parents and her partner of some four years. Her partner (whom she had planned to marry) died suddenly and unexpectedly of a heart attack. Dr Andrew Haines, who had been her treating general practitioner since about October 1994, described her as having experienced normal bereavement in each case.
As far as her general health was concerned, Ms Ogden was prescribed temazepam for insomnia around the times of her father’s and partner’s deaths and when her mother was suffering from cancer leading up to her death. She also received some counselling very shortly after her partner died. Otherwise, she experienced what Dr Haines characterised as essentially unremarkable physical health problems. I accept his opinion that her mental health was also normal in May 2005, before the Bells Hotel robbery.
Employment at Bells Hotel
In about 2000, Ms Ogden started working as a nail technician in a Toorak beauty salon. There, she met Mrs Kaye Bell who invited her to work at Bells Hotel as a waitress, with a view to her taking over as manager.
Bells Hotel had been owned by Mr Bell’s family for some 68 years. It stood at the corner of Coventry and Moray streets in South Melbourne. Mr Bell had lived there as a child and he and his mother had run the hotel in partnership after his father’s death in 1964. After his 1974 marriage to Mrs Bell, they had lived at the premises for some 20 years and had run the business together.
Ms Ogden started as a waitress in about September 2001 and was soon promoted to the role of hotel manageress on 20 January 2002. She was excited about her new job and the prospects of advancement it provided. She saw it as an opportunity to better herself and told Ms Bartholomew of her keenness to develop the “functions” side of the business. Ms Ogden gave her friend the impression that she was dedicated to her job and that she continued to cope very well with the demands of being a working single parent.
Before moving on to the subject of Ms Ogden’s duties at the hotel and related topics I note, in relation to personal stressors in Ms Ogden’s life before the robbery, that in about 2002, she was also saddened when her brother was diagnosed with what was thought to be terminal leukaemia.
Ms Ogden’s duties
Ms Ogden was given no written description of her duties or of any Bells Hotel protocols. Mr Bell variously said that she was given a “hands on” training by him, Mrs Bell, the former manager, Ms Mcgergan, and the former bar manager, Mr Arthur.
I do not accept that Mr Arthur was involved in Ms Ogden’s induction in January 2002. He had been employed as a casual barman in May 2001. He was appointed a duty manager about a year later and became bar manager in about 2003. Ms Ogden had been made the hotel manager in January 2002. Mr Arthur also gave evidence, specifically, that he was not present when Ms Ogden was given any instruction about entry to the hotel.
Ms Ogden was required, each morning, to take the electronic till drawers and TAB agency takings out of the hotel’s safe. The safe had both a key and a combination lock. She checked the float moneys in the till drawers, balanced the tills against till tapes, made up the money from the tills and from the TAB agency takings into a banking format and delivered the money to the bank. She also had to open a privately owned ATM machine at the hotel and “top it up” with suitable undamaged $20 notes from the takings.
On a typical Monday morning in 2005, the Friday to Sunday takings would range from $25,000 to about $45,000 and, in the months of November and December, they could amount to $50,000 or $60,000. Ms Ogden also cashed cheques for the hotel wages and brought that money back to the hotel.
There was an informal arrangement in place under which, on Mondays, local police frequently provided an escort in an unmarked car for the larger amounts of takings accumulated over the three previous days. They were rewarded with free drinks provided by Mr Bell or with slabs of beer.
There was no procedure in place for a particular person, or indeed any person, to accompany Ms Ogden to the bank with the takings. Sometimes she went alone. A number of different people did accompany her, including Mr Bell, Ms Petrie, Ms Eliza Ogden and other members of bar or kitchen staff. She often drove and sometimes walked. Ms Ogden occasionally asked Mr Bell if a bartender could accompany her and he refused her request whenever it happened to be an unsuitable busy time.
The evidence did not support Mr Bell’s assertion that there was an invariable rule that Ms Ogden be accompanied to the bank by a male. Ms Petrie and Ms Eliza Ogden both said that they accompanied her on occasion. Further, after the robbery, Mr Bell himself told the industrial accident assessor on 23 January 2006 that Ms Ogden did the banking and “[if] it was a large amount the police would drive her or one of us would accompany her”. Again, over a year later, in a 26 March 2007 statement to another accident investigator, Mr Bell said that, if there were a large amount of money “we would provide her with an escort, that was an employee of the Hotel or a Police member as a courtesy to the hotel.” Mr Arthur also told the industrial assessor on 23 January 2006 that a “two-man rule of banking” had been introduced “after” the robbery.
Mrs Bell did the office work and supervised the presentation of food at lunch times in the kitchen. Mr Bell was involved in all the hotel’s operations. Ms Ogden assisted at lunchtime, taking orders and serving meals. In addition, she rostered floor staff and arranged functions. Sometimes, she also filled in for missing staff. Bells Hotel had some 25 staff members in 2005.
I note at this point that I do not accept the evidence of Mr or Mrs Bell to the effect that Ms Ogden had an overall responsibility for rostering bar and kitchen staff, as well as the floor staff. I prefer the evidence from Ms Petrie and Mr Arthur who each maintained that they drew up the rosters for their own staff, unassisted by Ms Ogden.
Security at Bells Hotel
One of the reasons for Ms Ogden’s promotion to manageress was that there had been some pilfering at the hotel and, as Mr Bell put it in evidence, she was put on to engage in “cash control at the tills”. It was Mr Bell’s view that the jewellery industry had very good security and stock control systems. This made it more probable than not, in my view, that Ms Ogden was telling the truth when she said that she subsequently made suggestions for security measures to the Bells.
In the period before the robbery on 23 May 2005, a number of security measures had been taken at Bells Hotel:
(a)Chubb Security had installed small metal “Reed” security alarms on some of the hotel doors in about the 1970s and infrared movement sensors in the 1980s. The Reed alarms and the sensors were linked to a central alarm system and an alarm pad inside the hotel. The alarm was programmed to allow about 20 seconds for anyone entering the hotel to deactivate it and a similar time for exit, after it had been set.
(b)There was a set of materials produced by the Australian Hotels Association (“AHA”) as an occupational health and safety training programme in about October 2001 which were kept at the hotel, together with some pages of a WorkCover health and safety publication.
(c)Mr Bell had completed a self‑assessment document which was part of the AHA materials noting that:
(i)there was a need for risk assessments to be conducted;
(ii)a staff manual and a staff induction manual were being developed; and
(iii)procedures for fire, evacuation, emergency and holdup policies “needed attention”.
(d)Mr Arthur had printed the AHA document, placing a copy in the bar and had required bar staff to read it.
(e)Every 12 or 18 months, risk assessments were being performed by AON Insurance after inspections of the hotel and recommendations were made. (There was no evidence as to the content of the AON recommendations).
(f)No staff manual or staff induction manual were prepared because the Bells had concluded that better results were achieved by a “hands on” induction process and because of their difficulty in describing staff’s positions in such a small business.
(g)The Bells had concluded that better results were achieved by a ”hands on” induction process than through written manuals, because of the difficulty in describing staff positions in such a small business.
(h)A CCTV camera had been installed in a bottle shop area at the end of a laneway running along the eastern side of Bells Hotel. (By the time of the robbery neither the bottle shop nor the camera were operating).
(i)One operating external CCTV camera had been installed behind a trellis and trained upon an external door opening off the eastern laneway. It was not visible from the lane.
(j)In about 2003 or 2004, internal video surveillance cameras linked to a computer system had been installed. The images captured by the cameras in any lit area of the hotel were displayed on a monitor in Ms Ogden’s office. The cameras were installed at locations recommended by a Mr Black of Fosters Australia, who had advised Mr Bell as to the suitability of the system, and Security World, the firm which monitored the alarm system. (There was insufficient evidence to establish the content of the advice received from Mr Black or CamVics, the firm which installed the cameras, or H&L Computers, which installed the computer system, or Security World.)
(k)Materials comprising posters and a CD ROM produced by the Australian Hotels and Leisure Group, under the “PUBSAFE” banner, were also kept at the hotel. (Mr Bell had been involved in their production.)
(l)Mr Arthur had put up some of the PUBSAFE posters, relating to workplace safety issues, in appropriate places at Bells Hotel and had shown the CD ROM to staff including Ms Ogden at Mr Bell’s direction.
(m)Members of the Armed Robbery Squad and an unidentified security company had advised Bells Hotel staff in relation to armed hold‑ups. (There was no evidence as to what seminars were held or what staff were told.)
The only evidence of a written “hold-up policy” was of a one page document on Bells Hotel letterhead. It had been adapted in 2005 by Mr Arthur, at Mr Bell’s direction, from the 2005 AHA package stored on the hotel computer. The hold-up policy document essentially instructed staff to co‑operate with an offender, to make appropriate observations and to be aware of the location of alarms. Despite Mrs Bell’s evidence to the effect that Ms Ogden was involved in the preparation of the hold‑up policy document, I am not satisfied that this was the case or, indeed, that the document was produced before the robbery. Mr Arthur was unsure whether he had created the document before or after the robbery.
The PUBSAFE materials stated that the process of risk control included risk identification, and assessment and the implementation of measures to deal with risk by staff training and clear written definition of all work procedures. Enforcement and demonstrated ability to identify non‑compliance were necessary parts of the risk control process.
The “two man rule”
There was a change to a significant factual issue between the parties as to whether or not a “two man rule” was in operation as a security measure at Bells Hotel as at the date of the robbery on 23 May 2005. The alleged content of the rule was variously described as requiring that two people be rostered on to open and close the hotel together, that the hotel only be opened and closed by two or more staff members and that one person could open up, as long as an inside light indicated another person’s presence.
The various arrival and departure times of Ms Ogden and other staff members were relevant to my determination about the existence of any such rule. I am satisfied that the Bells and the Bells Hotel staff arrived at various different times from before 8.00 am on different days of the week. Individual arrival times appear to have depended upon travel arrangements and what was going on at the hotel on any particular day.
Bells Hotel’s contract cleaners arrived at about 5.00 or 6.00 am and had left by about 7.15 or 7.30 am. They re-set the alarm and locked the premises before leaving (presumably only if no‑one else had arrived). Ms Payad was the second chef, but did cleaning work as well for a time. Her fellow cleaner was often at the hotel when she arrived. Nevertheless, she had a key and was unaware of any reason why she should not go in on her own.
Ms Petrie, the head chef, arrived at work between 5.00 and 7.30 am about three times a week in 2005, when she was driven to work by her transport driver partner. Her partner would come into the hotel with her, stay for half an hour and leave. Ms Petrie would then turn out the light and sleep soundly until other staff arrived at around 8.30 am. Occasionally, she would leave a light on to indicate that she was inside. According to her, Ms Ogden, Mr Arthur, Mr Bell or Ms Payad might be next to arrive. On the remaining days of the week in 2005, Ms Petrie caught the train from Sunbury. Sometimes she reached work at about 8.00 am or 8.30 am, but generally arrived at about 8.45 am and usually found the hotel open.
After Ms Payad stopped cleaning, she said that she did not open the hotel because Ms Petrie, the head chef, was always there before her. According to Ms Payad, Ms Ogden normally arrived before she did as well. Ms Payad said that she always arrived between 9.00 and 9.30 am whereas Ms Petrie’s account was that she and Ms Payad always had a cup of coffee at about 8.30 or 8.45 am and that she usually met Ms Payad at the front of the hotel. Ms Payad’s evidence suggested that Ms Petrie was already inside when she arrived. I am not persuaded that she usually met Ms Petrie outside the hotel.
Generally, kitchen staff were not rostered on before 9.00 am, but Mr Arthur’s evidence suggests that, at least on those Fridays when a television racing show was filmed at Bells Hotel, they may have been present when he arrived as early as 8.00 am. Mr Arthur himself fitted in about 50 hours of work a week and was sometimes the first to arrive at the hotel. He had no official starting time.
Mr Bell said that he might arrive at 6.30 or 7.00 am to attend to a maintenance task. Otherwise, he arrived between 8.30 am and 9.30 am.
Ms Ogden arrived at different times on different days, depending on what she needed to do. As she faced some three hours’ work on Monday mornings, when reconciling three days’ takings, she needed to start work between 7.30 and 7.45 am. She normally arrived at work between 7.30 and 8.00 am, but might be as early as 6.45 am and as late as 9.30 am. Some days each week, she arrived first and opened the hotel.
Mr Bell made two statements to the WorkCover investigators, one on 23 January 2006 and another a year later on 26 March 2007. On 23 January 2006, he said that Ms Ogden generally came in the Coventry Street entrance, turned off the alarm and went to talk to the chefs who might be there already. He also said that the cleaners might be there when she arrived. He said that he knew that she had adjusted her hours to commence at 8.30 am and that she might arrive even earlier. He said that Ms Ogden had come in at 7.45 am on 23 May 2005 “approximately a lot earlier than usual, my assumption is she wanted to get away early.” He expressed no surprise that she had made such an arrangement unilaterally. In his 26 March 2007 statement, Mr Bell said, “Susan had keys to the Hotel. She would open the Hotel in the morning although that was normally in company with another employee. The Hotel doesn’t open to the public until about 11.00 am although there is normally a Chef, or a contract cleaner, who would be here before her.”
Mrs Bell told the investigator on 23 January 2006 that Ms Ogden would generally commence around 8.30 am. She too described her as having been in “earlier than normal” on 23 May 2005 and reported that Ms Ogden “did not say why”. On 26 March 2007, Mrs Bell said that Ms Ogden was “never at work at 8.00 am.” She described her being there as very odd and said that it was not necessary for her to be there at that time.
Mr Arthur described Ms Ogden’s hours as being from 8.00 am to 3.00 pm on Mondays to Fridays, with breaks at her discretion. He said, “She would generally be first in”. In his 26 March 2007 declaration to an investigator, Mr Arthur said that Ms Ogden would open by herself when the chefs or cleaners weren’t there. Under cross-examination, he qualified that, stating that it happened on very, very rare occasions and that no-one was permitted or encouraged to go in alone.
Mr Arthur said that he knew about a “two man rule” for opening the hotel. According to him, it required that there should always be two people to walk through the door together. Although he was sure he had been informed about it, he could not specifically recollect the instructions and had not been told the reason why the rule existed. He did not follow the rule, however, being too impatient to wait outside. His impression was also that Mr Bell did not usually worry about the matter.
Ms Petrie was found at the hotel by Mr Bell shortly after her partner started driving her there early in the morning. Mr Bell asked her “how the hell” she had got in. After being assured that her partner had come in with her, Mr Bell told Ms Petrie that she should not enter the hotel alone. Ms Petrie said that she waited outside the hotel for someone else to arrive if she got there before the lights were on. She assumed that everyone else knew of a rule requiring two people to go in together, but had not been instructed to tell anyone about it.
Neither of the Bells told the assessor on 23 January 2006 that Ms Ogden had broken any hotel rule by entering alone on 23 May 2005. Indeed, Mrs Bell stated that day that, “[we’re] [sic] since introduced two people to open together and Bill has organised some other security enhancements such as deadlocks et cetera”. I was not persuaded by Mrs Bell’s evidence that she did not make a statement in those terms to the investigator and must not have read the document properly before signing it. Mrs Bell struck me as a competent, careful person who played a significant role in the management of Bells Hotel business. Mr Bell trusted her to fill out necessary forms and she had worked as a legal secretary in the past. I consider it unlikely that the investigator would have inserted such a statement unless it had been made by Mrs Bell. Even though there are some obvious grammatical errors in the statements, I consider it unlikely that Mrs Bell would not have picked up such a significant error, had it been made. Further, in her 26 March 2007 statement, Mrs Bell said:
There would always usually be more than one member of staff to open up and if there would usually be a few staff members due to start at the same time. At that time of the morning the cleaners would have not long left the premises.
Under cross‑examination, Mrs Bell gave a most unconvincing explanation for her statement: to the effect that “usually” meant “always” to her.
There was a register of Occupational Health and Safety committee meetings held at Bells Hotel. Mr Bell, Mr Arthur and Ms Petrie were members of the committee in 2005. I consider that the register entries made after the robbery provide little support for Bells’ assertion that there was a “two man rule” in existence at the date of the robbery. The robbery itself is recorded without mention of any breach of an entry rule. The register record of the 6 June 2005 meeting lists “Suggested changes” including “2 man Rule – in effect”. A 4 July 2005 entry notes as a “Suggestion from last meeting placed in effect”, “2 man rule” and, under the heading, “New issues” (apparently raised by Mr Bell) “2 People to be on duty whenever cash transactions are taking place or on morning entry to hotel”. On 1 August 2005, under the heading “Review of last month”, “Suggestions of Bill Bell” there was an entry “2 man rule – in effect”. The entries rather support the conclusion that there was no such rule operating at the date of the robbery.
Mr Bell also completed a WorkCover Worker’s Claim Form on 19 June 2005. He declared that Ms Ogden had not injured herself by “violation of any statement or other regulation” or by “misconduct or breach of any safety/work standards”. Mr Bell explained his failure to refer to any breach of a “2 man rule” by Ms Ogden on the basis that he had signed the form, which had been completed by Mrs Bell, without reading it.
In his 23 January 2006 statement to the investigator, Mr Bell indicated that it was Ms Ogden who would generally turn off the alarm; he did not refer to any rule requiring her to wait for anyone else. By 26 March 2007, Mr Bell had received and was responding to particulars of negligence in Ms Ogden’s statement of claim. One of the particulars was Bells’ alleged failure “to ensure that at least two employees … were present at the time of the opening of the subject premises”. He responded in his statement to the investigator that “all staff were informed not to enter the premises alone” and stated that Ms Ogden did not obey this instruction. He expanded on this as follows:
Susan was not supposed to ever open up the Hotel on her own. I had given all staff the instruction not to ever open the Hotel on their own. They normally used to wait in the car park if they were the first one here and wait for another staff member to arrive. If the cleaners were inside then they would come in, there was no problem with that.
I am not satisfied that Ms Ogden was told that she should roster two staff on to open the hotel or that she should not enter the hotel alone unless a light indicated the presence of another or that there had to be two people present to open the hotel. I am not persuaded that such a rule would have been communicated to her by Mr Bell entering with her whilst cleaners were present in the hotel, as he suggested. Nor am I persuaded by Mrs Bell’s evidence that she had been present when Mr Bell told Ms Ogden of a rule that she was not to enter the hotel unless there was another person present.
I am satisfied that Mr Arthur and Ms Petrie had each been made aware, at some point, that they should not open up the hotel alone, unless there was a light on to indicate that someone else was inside. I am not, however, persuaded that they were told to roster two people on for the purpose of opening or closing or that there was a hotel rule or policy to that effect.
Mr Arthur gave the only evidence about any procedure for closing the hotel. As duty manager from about 2002, he was responsible for closing the hotel at night. He was uncertain who had shown him the procedure for locking up, but he believed that it was another staff member. He had received no documentation setting out procedures. He was quite often the last person to leave, after having made a rough count of the day’s takings and having placed them in the safe, together with the till drawers and the money from the ATM at the hotel.
He set the alarm, checked exit doors and turned out the lights, after having made an “idiot check”, to see if there was a drunk person asleep or unconscious in toilet areas. Generally, staff were cleaning up at the time and, for his own safety, Mr Arthur always made sure that there was someone with whom he could leave the hotel and go out into the dark in Moray Street. Sometimes, staff would leave together after having shared a drink at the end of the night. It was Mr Arthur’s belief that they waited because of a shared reluctance to depart alone.
I am, however, satisfied that Ms Ogden suggested to Mr Bell that two people be rostered on to open and close the hotel and that she made an alternative suggestion that a security guard be employed for that purpose. I accept her evidence that both suggestions were rejected on account of their cost. The likelihood of her account of having made security related suggestions being correct is supported by the evidence that she was employed in part because of her expertise in security matters in the jewellery business and by Mr Arthur’s evidence that she had taken relevant action at one point by arranging for cameras to be moved to focus on tills when there had been pilfering.
The robbery
I turn now to the circumstances of the robbery on Monday 23 May 2005.
Ms Ogden had arrived at work at about 7.45 am that day and had parked in the driveway beside the hotel. As she was walking towards the hotel she saw a man approaching Coventry Street down a lane directly opposite the driveway in which she had parked. When she put the key into the Coventry Street front door, she suddenly noticed someone behind her and felt him to be close and breathing on her. She turned and saw a man with a beanie pulled down to near his eyes. He was unshaven, stocky and strongly built. She had the sensation that he was engulfing her. She thought that the man pushed her slightly. He told her to get inside, to get the alarm off and to move quickly. He also told her to be sensible, to do things properly and she would not get hurt. She was terrified and felt as though she was about to have a heart attack.
Ms Ogden opened the door and moved quickly inside the hotel, deliberately taking a path around a pillar in front of an electronic sensor, in the hope of setting off the alarm which she knew she had only about 20 seconds to disarm. The alarm was not triggered and before she disarmed it, the robber repeated a couple of times his instruction that she should “get the alarms off”.
The robber who had pulled the balaclava down over his face upon entry, then told her twice to “get to the safe”. He followed her into the short corridor‑type area in which the safe was housed in a cupboard. He told her to open the safe and to be very sensible and she would not get hurt. She opened the wooden door in front of the safe and heard a rustling sound. She turned instinctively to the robber who said “don’t look at me”. She saw that he was pulling on rubber or plastic gloves and that his hands were solid and large. He thrust a bag in front of her and said a couple of times “fill the bag”. She reached into the safe and took the takings out and when she hesitated, he said “and the TAB money”. She then took the tin of TAB money out and put it and the bags of money into his bag. The takings stored on 23 May 2005, the morning of the robbery, amounted to approximately $43,000.
The robber told her to get down onto the floor and instructed her to cross her hands in front of her behind the leg of a table in the area. He taped her hands to the desk and then taped her mouth and halfway round her head across her hair. He said “I hope that’s not too tight” and left.
The videotaped footage from the hotel surveillance cameras shows a man on a mobile phone as he moves towards the front door on Coventry Street to exit.
Ms Ogden spent the next few minutes twisting the tape to loosen it and biting it. She then called for help, hoping that workers in the back lane at the rear of the hotel would hear her. They did not, but she was able to bite through the tape on her hands and free herself. She ended up with splinters in her hands from her efforts to free herself. She was unsure whether the robber was still in the hotel. Eventually, she pressed the hold-up alarm near the safe. Crouching down on the floor, she called the Bells at their Toorak home from the telephone at the front bar.
I note at this point that there was a good deal of cross-examination to the effect that the whole incident was actually less traumatic for Ms Ogden than she had made out. It was essentially put to her that the videotaped surveillance images of the event did not bear out her account of the proximity of the robber when she opened the door or the relative speeds at which they entered the hotel or her levels of fear and distress. Indeed, it was put to her, in effect, that she was shown to be co-operating calmly with the robber’s instructions and that she was not deprived of the requisite composure to open the safe by manipulating the sensitive combination lock. (The thrust of this cross-examination reflects the tenor of the opinions expressed by Mr Bell in his 26 March 2007 statement to the industrial accident investigator.)
I do not doubt the truth of Ms Ogden’s account of the trauma she suffered at the hands of the robber. Having regard to the angles involved, the videotaped surveillance camera footage did not, in my view, bear out the suggestion that she did not sense the intruder in such a way as to justify her description of her feeling that he was breathing hotly on the back of her neck, or that he was close behind her or her impression that he pushed her as she entered.
I accept Ms Ogden’s evidence that she feared for her life during the robbery and her account as to the relative intensity of that fear. Her fear was heightened by her consciousness of her responsibilities as a single mother of two children.
Ms Ogden was obviously distressed when Mr Bell and others arrived at the hotel. Mrs Bell comforted her and accompanied her to first the St Kilda Road Police and then the South Melbourne police stations. She made a statement at South Melbourne, telling police that she was often the first person to arrive at the hotel, and that she always used the Coventry Street door. She said that she would turn off the alarm before taking cash from the safe downstairs into her upstairs office to reconcile it. Mr Arthur later drove her home.
On the same day, Mr Arthur assembled the video surveillance material and watched it with Mr Bell several times. I found Mr Bell’s evidence that he saw very little of the videotaped surveillance camera footage that day of the robbery unconvincing and do not accept it.
An emergency meeting of the Occupational Health & Safety committee was held on about 23 May 2005 in relation to the robbery. Mr Arthur made an entry in the register, describing the robbery using information from Mr Bell and from the video surveillance footage.
Ms Ogden’s treatment and progress
Ms Ogden consulted a Dr Leibowitz at Dr Haines’ practice on 24 May and then attempted to return to work on 25 May. She experienced a panic attack and went home. She worked on Friday 27 May and experienced panic attacks and felt anxious and fearful. She had nightmares, flashbacks and panic attacks over the weekend and sought treatment on Monday 30 May from Dr Penny Brabin, the psychologist recommended by the Victoria Police Victims Advisory Unit. Dr Haines subsequently provided her with referrals to Dr Brabin.
Ms Ogden saw Dr Haines regularly after the robbery. She reported on 2 June 2005 being back at work but not coping. He gave her WorkCover certificates. She made a number of subsequent attempts to return to work and continued to suffer from a variety of symptoms including insomnia and headaches. She complained of lack of support from her employer, reporting that she felt feeling let down and upset about the loss of her job.
On 12 August 2005, Dr Brabin wrote to Dr Haines, recommending that Ms Ogden not return to Bells Hotel because of her employer’s failure to uphold the guidelines of a Graduated Return to Work Programme.
On 23 August 2005, Ms Ogden was seen by Dr Paul Kornan, a psychiatrist, on behalf of the insurer. Dr Kornan did not give evidence and no report from him was tendered. Dr Haines, however, reported on 31 October 2005 that Dr Kornan had felt that Ms Ogden was significantly anxious and depressed and had recommended the antidepressant, Cipramil, which she had started on 11 October 2005. She had been certified as unfit for work for a month.
Dr Brabin reported to Allianz Workers’ Compensation on 16 September 2005 that her letter to Bells Hotel, pointing out Ms Ogden’s need for workplace support, had gone unheeded. Ms Ogden had reported being increasingly ignored by Mr and Mrs Bell and senior staff and had said that her role was being displaced. She felt that her reaction of what Dr Brabin described as “understandable acute trauma” was being regarded as an inconvenience and she was the only senior staff member not to receive a pay rise. The attitude of her employers was that she should “just get back to work and get on with it”. Dr Brabin reported also that friends and family also took the view that Ms Ogden’s reaction to the robbery was out of place and that she was rorting the system. That judgment was further impacting on her ability to deal effectively with her traumatic experience and it was not shared by her treating practitioners or the WorkCover psychiatrists, according to Dr Brabin.
Ms Ogden found various incidents at work intolerable and did not cope emotionally. The rehabilitation provider, Dr Brabin and Ms Ogden decided, with support from Dr Haines, that she should retrain through WorkCover and obtain alternative work. Dr Brabin concluded that Ms Ogden was experiencing post-traumatic stress disorder as a result of the robbery and, consequently, had no current capacity to return to her usual work. She considered that she might be able to undertake more menial part-time work within three months, before returning to her usual managerial role.
On 31 October 2005, Dr Haines reported to the insurer his opinion that Ms Ogden was still unable to return to work because of post traumatic stress disorder and an adjustment disorder due to the robbery. He stated that she had no pre-existing symptoms and he considered her present ones to be entirely due to the robbery. He was unable to say how long her incapacity would continue, but expected her to improve on recently introduced medication and after some re-training. Dr Haines did not think that she would have a permanent impairment at that point.
The results of Ms Ogden’s condition were also being felt by her family and, early in 2006, Ms Eliza Ogden left home. She was unable to cope with her mother’s demands that they remain in constant contact and the many other manifestations of her emotional distress and inability to live on her reduced income. Ms Ogden said that her mother had lost interest entirely in her appearance, was incredibly nervous and anxious, engaging in compulsive cleaning and cooking bouts as well as ironing excessively and being “pedantic” about routine tasks. She now had “very little room” for her daughter emotionally and Ms Eliza Ogden felt she lost her sole parent.
Mr Ben Ogden described his mother after the robbery as having initially stayed in bed for some days and then for approximately a week an a half, after trying to go back to work at Bells Hotel. She was teary throughout that period. She seemed depressed and anxious and didn’t like answering the door or phone and was shaking. Her confidence had gone and she didn’t want to go out. She had good and bad days, but got gradually worse. Once or twice a week she would have a burst of cooking and make far too much for the family to eat or freeze. He would help her shopping or make small purchases using his bicycle. His mother stopped having her hair cut and ceased wearing make-up. She generally stopped grooming herself and took to wearing track suit pants.
Ms Ogden was obliged to return to the hotel after leaving to collect her pay, despite the distress that caused. Mrs Bell explained that Bells Hotel’s normal procedure was for money to be collected.
On about 19 January 2006, testing by Dr Brabin showed that Ms Ogden was suffering from mild depression and that she was trying to “pick herself up and get going”. Although she had shown positive signs, Dr Brabin did not feel that she was improving sufficiently. They were discussing Ms Ogden returning to work, but Dr Brabin was concerned that she was not ready to work despite the elevation in her mood. Dr Brabin thought that she was still suffering symptoms of Post Traumatic Stress Disorder. Ms Ogden was able to go to the local supermarket but couldn’t go to Chadstone Shopping Centre, which she found too stressful. Dr Brabin was encouraging her to extend her social contacts in this way. It was Dr Brabin’s opinion that Ms Ogden’s family and friends were finding her difficult, probably because of her depression and the confusion which was making it harder for her to recover.
At about this time, she commenced a computer course with Dr Brabin’s encouragement. She was keen to obtain some retraining. She did not find attending the course easy.
Ms Ogden resigned on about 20 January 2006.
At about the end of January 2006, when she was feeling unable to live on 75% of her former income, she tried to return to work as manager of a Carlton restaurant, Il Primo. Dr Brabin thought that it was too early, but her very supportive friend, Ms Bartholomew, encouraged her to get some normality back in her life.
Ms Ogden felt distressed by the number of people in the vicinity at the restaurant and did not perform adequately. On the busy Friday on which she last worked, Ms Ogden felt “so scared and terrified” that she lost control of her bladder and was forced to go home. She could not recall why she had been so terror stricken. She was disappointed that she was unable to cope with the job because of her feelings that she lacked support and was uncomfortable in the work environment. She resigned and described the experience as a “disaster” to Dr Haines. Her Lovan dose was increased on 1 February 2006. By 16 February 2006 she felt better generally on the Lovan, but still scared at times and Dr Haines recorded a diagnosis in his notes of “anxiety/depression”.
Ms Bartholomew noticed no improvement in Ms Ogden’s emotional state between January and March 2006. She spoke to her every or every second day. Ms Ogden gave her the impression of being unable to move on from the experience of the robbery. She was no longer dressing smartly and was emotionally fragile. The house was all locked up and if they were inside together, Ms Ogden would look out if she heard a car outside; sometimes she was irrationally frightened about answering the telephone. Ms Bartholomew said that there was no chance of getting her out socially as she felt unable to cope in a social situation.
Ms Ogden was reinterviewed by police and her ex-husband, Dr Ogden, was also interviewed by them, before she saw Dr Haines on 28 March 2006. She told Dr Haines of her distress at being considered a suspect. Her symptoms had worsened and she had increased anxiety and Dr Haines prescribed her temazepam for sleeping and increased her dose of the anti-depressant Lovan.
It was in the context of Ms Ogden being considered a suspect that Dr Brabin tested her using a Millon Clinical Multiaxial Inventory (MCMI-III) test on 30 March 2006. Dr Brabin was concerned to do something to indicate that it was unlikely that Ms Ogden had committed the crime. The test involved screening for personality disorders and inherent and reasonably stable aspects of personality, as opposed to clinical traits such as depression and anxiety which can change over time. The test results identified consistent truth telling on Ms Ogden’s part, as well as the tendency to be negative about herself. Dr Brabin said that Ms Ogden was often very placating and had a profile totally the opposite to that of a person likely to commit a robbery.
In her 22 June 2007 report, Dr Brabin noted results of the test which:
… reflected a great concern for others’ good opinion of her, that she is fearful as being viewed as irresponsible, is a person who values discipline, conscientiousness, prudence and loyalty, who is devoted to her work and to meeting her responsibilities with strong need to go out of her way to impress her superiors.
The Bells’ relationship with police after the robbery
Mr Bell was on friendly terms with local police and members of the Armed Offenders Squad, including a Mr Dabb. Since Mr Bell’s boyhood, Bells Hotel had had the informal arrangement I have described under which local police provided an escort to the bank for large transactions.
Between the date of the robbery and the police attending Ms Ogden’s home on 3 April 2006, Mr Dabb and Mr Bell had met at least six times and had discussed the robbery a couple of times. Mr Dabb had told Mr Bell several times that police considered Ms Ogden to have been involved. Mr Bell was also told that police held the view that the offender shown on the video was a man named John Drivis, with whom Ms Ogden had been having a relationship at the time. Mr Dabb informed Mr Bell of his suspicions about Mr Drivis some time after Ms Ogden made an Identikit image of the offender on the day of the robbery.
At some point in time, police had also explained to Mr Bell that their suspicions were founded on their observations that Ms Ogden had avoided alarms and deactivated the hotel alarm, as well as from her demeanour during the offence.
On 2 April 2006, Mr Dabb telephoned Mr Bell and asked him to tell Ms Ogden that police had a suspect and were making raids on people they believed could have been involved in the robbery the next morning. I do not accept the evidence Mr Bell gave at one point to the effect that neither he nor Mrs Bell suspected Ms Ogden’s involvement before that call. I do not accept his evidence to the effect that Mr Dabb had simply told him during their conversations that “investigations were proceeding” and that police were considering a person from Queensland. I also reject his evidence to the effect that his suspicions arose after he saw the complete video of the robbery only after Ms Ogden had been questioned by police.
The Police raid
On 3 April 2006, members of the Armed Offenders Squad arrived at Ms Ogden’s house when she was asleep in bed, at 6.30 a.m. They stated that they had a search warrant and were looking for $50,000 and a gun.
In the course of the search that followed, a flower decoration which police had put on the floor, fell over and drawers in a bureau and cushions on a couch were disarranged. The linen closet contents were pulled out onto the floor. Police were at Ms Ogden’s house for about an hour before taking her for questioning.
Ms Ogden had been told to get dressed and had felt humiliated and degraded when a policewoman would not let her visit the toilet without inspecting her used sanitary pad. Ms Ogden described the police conduct at the house as very distasteful.
Seventeen year old Mr Ben Ogden was present during the raid. His mother was handcuffed and driven away in the police car. He said that the police officers who attended were “confronting” in the sense that they were dressed in suits and seemed “more official” than a normal policeman; they were also wearing side arms.
Mr Ben Ogden did not, however, find the police aggressive, intimidating or frightening and disagreed with the proposition that they burst into the house. He denied that they acted in a threatening manner towards him, but they did warn him that he would not see his mother for ten years and said that she was under arrest. He was upset by seeing his mother led off in handcuffs and when the police told him to say goodbye to her because he would not see her for ten years. He could also see that his mother was very upset. He did not understand what was happening because he did not believe she had committed the robbery. He then rang his father, Dr Ogden, for help and advice.
A number of additional, inappropriate things subsequently happened to Ms Ogden. On the way to the police station, she was asked whether she had a psychological problem and police laughed. She was told she would go to gaol for ten years and that police would extract a confession from her by the end of the day, using means available to them. During her interrogation, she was informed that she was stupid and brainless and that a robber who had been sitting in the same chair had “gone away” for about 40 years and that the same thing would happen to her. Police spoke to her in a derogatory manner. They accused her of theft. They frightened her and she found them threatening and verbally abusive. They repeatedly put it to her that she was involved in the robbery and should tell them about it.
Ms Ogden was terrified and suffering from panic attacks and a high level of anxiety. She had not taken her prescribed medication that morning and asked police repeatedly to give it to her from her handbag, before it was provided. She felt very thirsty and, although police gave her drinks, she felt that her thirst had not been quenched.
The manner of the interrogation was aggressive and police pounded the table with their fists. They led her to believe that they were interviewing Mr Drivis and intimated that she and he had been involved in the robbery together. She gained the impression that they were suggesting Mr Drivis had made admissions to that effect and that she might as well do so too. Ms Ogden was also told that if she attempted to complain about police conduct or about “Billy Bell’s Hotel”, she would be charged with robbery. She believed that threat. Police also said that they would get back at her, by ensuring that her children lost their driving qualifications for some reason.
Ms Ogden was eventually released without charge at about 4.30 p.m. As she was walking out, a policeman accompanied her, bashing his hand along lockers in the hallway. He asked “Do you like the sound of that, Sue?” and “Look at this, Sue, look what I can do”. She regarded that as bullying. She also thought that police would try to frame her for the robbery, even though she knew that it could not happen. She agreed with the proposition under cross-examination that police behaved like a pack of animals towards her and that they gave her no prospect of a “fair go”.
Ms Ogden’s condition after the police raid
On 7 April 2006, Ms Ogden told Dr Haines that she felt shaky and anxious. His diagnosis was of anxiety, secondary to the arrest, and he prescribed the anti-anxiety medication Xanax.
After the raid, Dr Brabin rang Ms Ogden’s Allianz case-worker to seek permission for extra sessions. She received a very hostile reception and was told that Ms Ogden was being charged with the crime.
Dr Brabin informed Ms Ogden’s solicitor on 12 April 2006 of her opinion that Ms Ogden’s stress levels had already increased as a result of the initial investigations over the preceding weeks before the raid and that she had begun to take antidepressant medication. She also noted the addition of the anti-anxiety medication, required to reduce her constant high level of arousal. Dr Brabin said:
She is currently suffering from chronic severe PTSD and severe clinical depression. Now unable to stay alone for long and barely functioning, Sue is terrified to answer the telephone and doorbell for fear of further attempts to incriminate her, simply struggling to wash, clean and re-sort her furnishings and contents of cupboards that were upended in the Police search of her home.
I have serious concerns about Sue’s likelihood of any return to work in the foreseeable future.
Dr Brabin explained in evidence that, after the raid, Ms Ogden felt that not only might a robber come up to harm her from behind, but that people in the community who were meant to care for her were going to harm her. Dr Brabin thought that the raid brought about a significant deterioration in her condition and agreed, under cross-examination, that it had constituted a major psychological assault.
Ms Bartholomew saw Ms Ogden on the day of the raid. She found her friend upset as a result of what had happened that day, but said that she was used to seeing her anxious, nervous and upset. Ms Bartholomew continued to see Ms Ogden daily or every second day and said that she remained as she had been before the raid, looking tired, drained and unkempt.
On 12 April 2006, Ms Ogden was reviewed by Dr Kornan. The psychiatrist, Dr Michael Epstein, reports that she told Dr Kornan that, after the police raid, she had been “set back enormously”. She had been unable to walk out of her house, had become shaky and terrified if she heard a car door slam or other sudden noises. She had been told that everyone in the hotel industry knew that she had been charged and her reputation had been destroyed. She was terrified and upset when seeing police. Dr Kornan considered that she had Post Traumatic Stress Disorder and an Adjustment Disorder with associated disturbance of emotion. He thought her psychiatric state was noticeable and worse after the police raid. She had suffered a return of her previous emotional difficulties. Dr Kornan thought she would need to have psychological treatment weekly for at least six to 12 months and should remain on psychotropic medication. He thought her psychiatric state prevented her from working and that she had no capacity to return to pre-injury duties and remained unfit for any employment. Dr Kornan was of the view that as a result of the raid, she would be unfit for at least the following 12 months.
On 20 April 2006, Dr Haines noted that she was settling down and repeated his pre-raid diagnosis of anxiety and depression, continuing her Lovan, Xanax and temazepam and recommending increased psychological counselling.
On 14 July 2006, Dr Stephen Stern, a consultant psychiatrist for the insurer, provided a report. Dr Stern did not give evidence, nor was his report tendered. Dr Epstein also records Dr Stern’s opinion that Ms Ogden was suffering from a Post Traumatic Stress Disorder related to the robbery and aggravated by the police raid. Dr Stern thought Ms Ogden’s pre-existing Post Traumatic Stress Disorder in 1984 would have predisposed her to her current condition, although she had totally recovered from that disorder many years earlier. He, too, thought that she needed continuing psychological treatment and antidepressant medication. He considered her psychiatrically incapacitated for all work at that time and that her condition had stabilised. He thought her social and leisure activities had been reduced.
It was on 18 July 2006 that Ms Ogden saw Dr Epstein with regard to her WorkCover claim. He had read Dr Brabin’s 16 September 2005 and 12 April 2006 reports. He noted that Ms Ogden had lost weight and was sleeping poorly, without medication, as well as suffering from nightmares and flashbacks, both of the hold-up and the police raid, at least on a weekly basis. She was coping poorly and unable to manage the housework. She had recently been able to shop by herself but had frequent panic attacks and was fearful of being away from home. She exhibited signs of anxiety and felt distressed by the effects of the attempts to involve Mr Ben Ogden who had been very upset by the experience. She smoked cigarettes and used Xanax, temazapam and Lovan. She was seeing Dr Brabin weekly and Dr Haines monthly.
Dr Haines saw her on 31 July 2006 and on 8 August 2006. He found that her anxiety since the raid was improving, but that there was still limited scope for her to go out. She remained totally unfit for work.
In his 4 August 2006 report, Dr Epstein, like Dr Brabin, Dr Kornan and Dr Stern concluded that Ms Ogden was suffering from Post Traumatic Stress Disorder. Dr Epstein described it as “severe” and as being associated with Panic Disorder with Agoraphobia and he considered that her combined symptoms had led to a major Depressive Disorder. He thought she had been very traumatised by the police raid and that her symptoms had worsened since. He thought she had no current work capacity and was unlikely to improve in the foreseeable future. He considered that the police raid had had a significant effect on her symptoms and it was too early to determine whether her impairment was permanent.
On 1 October 2006, a Medical Panel provided an opinion in relation to Ms Ogden’s condition. The Panel considered that she suffered from a Chronic Post Traumatic Stress Disorder with associated features of Panic and Agoraphobia relevant to the accepted injury that occurred on 25 May 2005. The Medical Panel considered that her psychiatric impairment of 40% comprised 30% impairment from the robbery and the balance as a consequence of other factors. The Medical Panel concluded that her impairment was “permanent” within the meaning of the Accident Compensation Act 1985.
Dr Haines thought it quite reasonable (when it was put to him under cross-examination) that the Panel had concluded that three quarters of Ms Ogden’s condition was the result of the robbery and one quarter the consequence of the raid. His own assessment, at that time, was that the robbery was the predominant problem and that the raid had exacerbated it.
Ms Ogden was forced to move house in about December 2006. Dr Haines considered that a stressor and noted her depression and anxiety before and after the move. She continued to need temazepam for insomnia.
The Bells made their statements to the investigator on 23 January 2006, criticising Ms Ogden as a demanding, authoritarian, difficult woman with no wish to return to work.
On 23 February 2007, on review, Dr Kornan (according to Dr Epstein) took a history of unchanged symptoms and suicidal thoughts, without any suicide attempts. Ms Ogden reported little confidence and rarely leaving the house except to shop and see a girlfriend. She had lost most of her friends and suffered from memory and concentration problems. Her panic attacks had continued, she had gained weight and was having trouble sleeping. She was using Lovan, temazepam for sleep and Xanax. She was on edge and continued to have unpleasant nightmares. Dr Kornan confirmed his previous diagnosis. He thought her injuries consistent with the robbery and compounded by the police raid. He thought her incapacitated for all work as a result of her psychiatric condition. He considered her prognosis uncertain.
The Bells and Mr Arthur made their further statements to the investigator on 26 March 2007. They each gave the impression that they suspected that Ms Ogden was involved in the robbery. (I note this was a view Mr Bell expressed in evidence during the trial.) Mr Arthur was also critical of Ms Ogden, describing her as an ineffective manager, without much dedication to her role.
By April 2007 Ms Ogden had apparently received the statements made to the investigator before the first conference relating to the settlement of her WorkCover claim. She described them to Dr Haines as “vitriolic”.
Dr Haines noted her ongoing anxiety and depression and total unfitness for work in May 2007. He noted that she continued to be very restricted, as far as her ability to go out was concerned. He also referred to her weight gain.
On 22 June 2007, Dr Brabin reported to Allianz that since the police raid, Ms Ogden’s recovery had “reversed”. Dr Brabin provided an update to her psychological assessment in her 15 September 2006 report, stating :
At this stage, Ms Ogden’s condition had deteriorated significantly since the previous report as a result of a litany of experiences associated with the robbery that have continued to impact upon her. She has required regular support to address the continuing incidents of surveillance, the impact of the raid at her home and the insulting and abusive treatment at the hands of the police, the allegations she has had from the Bells and from her Allianz case worker, Andrea, that she was being “charged” with the crime, the continuing impact of these events on her children and her reaction to them, the impact of having to read a further litany of what she reports as unkind, incorrect and unsupportive allegations of her former employers and staff who appear to be supporting the attempts of the now-dismissed officers of the Armed Offenders Squad to accuse her of the crime. As a devoted and hard-working employee Ms Ogden struggles to manage to survive this continuing ordeal. Afraid for her life during the robbery she now had no sense of any viable future as a result of the allegations made against her that are so contrary to her general approach to her work.
As far as his mother’s condition after the police raid was concerned, Mr Ben Ogden said that it had become worse, but had subsequently returned to what it was. He disagreed with the suggestion that Ms Ogden’s distrust of other people dated from the police raid, rather than the robbery, citing her fear of people coming up behind her and her being scared to answer the door after the robbery and having a general distrust of the abnormal.
Ms Bartholomew saw Ms Ogden on the day of the police raid, finding her upset as a result of what had happened. She continued seeing Ms Ogden daily or every second day and considered her to be in the same state as she had been in before the raid. She continued to look tired, drained and unkempt.
Dr Brabin also noted that Ms Ogden was further stressed by her children’s reactions to her experiences. Mr Ben Ogden was significantly distressed trying to support her and Dr Brabin had concerns about his then current emotional state.
Dr Haines saw Ms Ogden in May 2008, after she had been classified as totally and permanently disabled for superannuation purposes. This classification had made her more depressed, according to her general practitioner, because she saw herself as someone who worked and would have liked to have retuned to a productive working life. Dr Haines noted that her depression had worsened in the lead up to the litigation and he increased her anti-depressant Lovan to what he said was a reasonably high dose of 50mg, in an effort to stabilise her mood.
In his oral evidence, Dr Haines expressed the view in evidence that Ms Ogden’s chances of returning to work were probably “not that great”, but thought that she might have some chance, if she made a new start living elsewhere, and he noted that she had discussed the possibility of her moving to Warrnambool. He thought her currently unfit for work some three and a half years after the robbery. He said that she had been significantly affected in social terms, having changed from a vivacious outgoing woman to someone withdrawn and virtually housebound.
Dr Brabin said that she would hope that Ms Ogden would make some improvement after the resolution of the litigation process, but she expressed her own grave doubts, as the suffering Ms Ogden had experienced had become very deeply ingrained. Dr Brabin thought that where Ms Ogden lived would make little difference to her emotional experience. Dr Brabin also noted her impression that Ms Eliza Ogden was perhaps a little more difficult to live with than her brother and doubted the wisdom of Ms Ogden living with her daughter.
Dr Brabin said that Ms Ogden had “such intense fear socially” and had made so little progress in that area that she could not foresee a major improvement in the foreseeable future. She could not imagine that she would socially be able to perform her duties in a workplace. Dr Brabin thought it highly probable that she would not work again.
Dr Brabin expressed the opinion that there was every reason to think that, had Ms Ogden experienced the raid but not the robbery, she would have recovered from its effects within two or two and a half years. Because she had been the victim of the robbery, the raid had had the effect of “re-traumatising” her experience of that event. This was apparent because her flashbacks afterwards were to the robbery and not the raid. She experienced flashbacks of her mouth being taped and her intense feeling that she was going to die. She pointed out that fear of death was a necessary basis for a diagnosis of Post Traumatic Stress Disorder.
In effect, Dr Brabin also attributed greater impact to the raid because it occurred in circumstances in which, Ms Ogden, the employee involved in the crime, had been suspected of it and when she had previously had good relationships with police through her role at Bells Hotel.
Dr Epstein saw Ms Ogden again on 6 June 2008. He provided an 11 June 2008 report, noting her belief that her reputation had been destroyed as a result of the police raid because she had been implicated in the hold‑up. He considered that her coping capacity, which had been very poor after the robbery, had worsened after the raid and that she had developed some compulsive cleaning behaviour usually associated with high levels of anxiety. He repeated his diagnosis of severe Post Traumatic Stress Disorder, Panic Disorder with Agoraphobia and a Major Depressive Disorder caused by her exposure to the robbery and exacerbated by the police raid. He thought Ms Ogden severely disabled, with no capacity to return to her previous work or to undertake any similar manual‑type activities. He thought she had no capacity for any employment.
In evidence, Dr Epstein agreed with the proposition that Ms Ogden’s behaviour in throwing out the clothing she had been wearing during that raid, some three months afterwards, was consistent with it having had quite a severe impact on her psyche and constituting an ongoing source of misery for her. He said, however, that if she had shown evidence of dysfunction in terms of employment, recreational and social activities in the preceding period, and those effects of the robbery had been continuing for many months, then he would have been more pessimistic about the ultimate prognosis, leaving aside the raid.
Dr Epstein’s experience was that the majority of people suffering from Post Traumatic Stress Disorder recovered. However, those with high level of symptoms which require treatment and profoundly affected work capacity, relationships and recreational enjoyment, did not improve greatly if their symptoms continued over 12 months or two years. He said that Ms Ogden’s level of functioning was very low and that she did not seem to be progressing towards mental health. She engaged in a lot of fruitless activity and was at the more severe end of the spectrum with a poor prognosis. He foresaw Ms Ogden probably leading a rather hermit‑like existence with a very limited lifestyle; she would be less distressed, but her level of function might not significantly improve. Her level of symptoms might be reduced but the underlying disability might not be improved. Dr Epstein did not exclude the hypothetical possibility that she would improve sufficiently to return to work, but stated that he would be extremely surprised if that occurred.
Dr Edward Cole, a psychiatrist, saw Ms Ogden at her solicitor’s request on 12 September 2008. He provided a report on 18 September 2008 and a supplementary reported dated 8 October 2008 and gave evidence at the trial. He too concluded that Ms Ogden was suffering from chronic Post Traumatic Stress Disorder with features of Panic Disorder with Agoraphobia. He described her condition as moderately severe. He attributed it directly to the robbery and considered that it had been aggravated by the police raid. Dr Cole thought Ms Ogden incapable of working and that there was a distinct possibility that she would never work again. The finalisation of the litigation might bring about a modest improvement in her condition, but he would be agreeably surprised if she ever worked again.
Dr Cole thought Ms Ogden had been rendered more vulnerable to the effects of the robbery by her history of panic attacks after the Adorna robbery. The obviously distressing circumstances of the police raid would have aggravated her earlier condition, by drawing attention to the circumstances of the robbery. If they had been themselves the cause of Post Traumatic Stress Disorder, he would have expected flashbacks to those events and nightmares about them which might replace the symptoms due to the robbery. He thought her mistrust of people and police was a significant, rather than substantial, part of her disability, but concluded that Ms Ogden’s current symptomatology was clearly still related to the robbery.
Ms Ogden’s weight has ballooned since the robbery and she buys clothes from an opportunity shop. She continues to do excessive and unwanted washing and cooking when she visits Miss Eliza Ogden in the country. Her daughter does not think she would be capable of caring for her mother, if she were to move there. In her opinion, her mother would be lost without her primary carer, Mr Ben Ogden, and her friend, Ms Bartholomew.
Mr Ben Ogden now drives his mother everywhere and says that she needs to be repeatedly informed about his activities. He and Ms Macalister often shop for Ms Ogden and continue to assist with household tasks and cooking.
Ms Bartholomew still sees her friend about three times a week and often accompanies her to medical appointments because she does not like to go alone.
Ms Ogden feels unable to walk alone in the street. She suffers from depression and feels suicidal about once a fortnight. She suffers from panic attacks and anxiety to the point where, if she has missed her medication, she has the sensation that her head might explode. She can now answer the telephone, but is not confident about answering the door. She reacted typically when a man rang the doorbell and she rolled onto the floor so that he could not see her, a week before the trial.
Ms Ogden feels that she has failed Ms Eliza Ogden as a mother, with the result that she has gone to the country to live. She says that her son, Ben, should be out enjoying himself instead of acting virtually as her unpaid carer. He drives her around because she fears panic attacks and she has asked him to remain at home at night on occasions when she has not felt safe. She is embarrassed about her reliance on him.
Ms Ogden feels now most comfortable when the curtains are closed and the doors locked and she lies on the couch, during the day as well as at night.
I note, finally, that Bells admits that it conducted surveillance of Ms Ogden but has not adduced any evidence of that surveillance to challenge the evidence Ms Ogden and others have given about the extent of her disability.
Conclusions
Breach
I am satisfied that Bells breached its duty to take reasonable care to prevent harm to Ms Ogden as a consequence of the robbery.
Relevant expert evidence was given by Mr Tony Zalewski, a member of Victoria Police between 1973 and 1990 who had served as senior detective and detective sergeant in the Armed Robbery Squad from 1980. Mr Zalewski is the chief executive officer of his company, Australian Institute of Public Safety, which provides training and education in areas of public and workplace safety, security and related areas. His relevant qualifications as an expert in relation to security at licensed premises and security risk management are extensive. Bells did not challenge Mr Zalewski’s evidence with testimony from any expert of its own.
Mr Zalewski identified three core principles for robbery prevention (assuming rationality on the robber’s part):
(a)target hardening (making access more difficult);
(b)increasing visibility of potential offenders (by surveillance and like measures); and
(c)reduction of rewards (removing inducements, such as cash).
In Mr Zalewski opinion, the robber’s rationality was demonstrated by him tackling Ms Ogden when she was alone, at a known access point, at a predictable time on a Monday. The robber apparently knew of the alarms and the cash which included TAB money in the safe. The target was “soft”.
The lack of an external surveillance system reduced the robber’s visibility, allowing him to approach and leave without a disguise.
No measures, such as deposits into drop or time-release safes, collection by armed security guards or clear statements that little accessible cash was kept on site had been adopted to reduce the reward.
Bells’ system was reactive, lacking risk minimisation strategies requiring positive action which were common business practice, in Mr Zalewski’s experience. Bells Hotel was easily accessible, it lacked security features and there was a system of work in which an individual staff member had a predictable routine and accessed the hotel in clear view. In Mr Zalewski’s opinion, there was a predictable risk of a preventable robbery in all the circumstances. Internal deterrence, rather than a preventative strategic approach was the focus of security measures.
Mr Zalewski would have expected the following preventative measures to have been taken at Bells Hotel :
(a)Signage at entrances and elsewhere indicating a “security focussed” environment with minimal cash kept and time delays on safes etc.
(Mr Zalewski considered that the measures should start outside the premises, as the first “zone of control” or layer of security).
(b)An operational, overt, external and internal CCTV system to catch offenders at relevant places including hidden spots, such as parking areas.
(In Mr Zalewski’s view, the system should be operational because of the potential for insider information.)
(c)An access control strategy to overcome the obvious weakness of individuals entering alone at predictable times and on predictable days.
(Mr Zalewski said that, whilst it was common industry practice in a hotel of Bells Hotel’s size for one employee to open, risk minimisation measures such as awareness training, physical security measures, procedural guidance and rules for access, safety and security were also common. A “two man rule” was good practice, if accompanied by training as to respective roles in opening. In the absence of training for one person to enter whilst the other kept watch, a “two man rule” could add to confusion and increase risk.)
(d)Appropriate, site‑specific risk awareness and management training for asset protection and dealing with high risk incidents.
(Mr Zalewski said that appropriate training would relate to the employee’s approach to the hotel, parking position and awareness of people loitering, sitting in vehicles or approaching, or anything unusual. Site-specific risk factors included the Housing Commission flats on the corner opposite to Bells Hotel. Such a building could provide an observation vantage point for Bells Hotel and monitoring of cash handlers.
General business in an area did not provide sufficient protection because many robberies were committed in busy locations. Hotel patrons also had extended opportunities to observe cash handling methods and the amounts involved. It was insufficient to rely on posters to present information.)
(e)A prominently displayed internal monitor showing externally captured images.
(Mr Zalewski pointed out that, once inside, a victim could be forced to disable a purely internal system.)
(f)Height markers on access or exit doors to assist in establishing an offender’s relative height.
(g)A written policy and staff training about risk, safety, response and behaviour and the dangers of working alone, predictability in work activity in relation to matters such as access, reviewable by employees considered at risk (especially in cash handling environment).
(h)A system to note and review adherence to the written policy.
The Court must determine what measures Bells ought reasonably have taken in response to the recognised risk, taking into account their expense, difficulty and inconvenience.
Bells, through its directors was aware of the risks of a robbery at Bells Hotel. An internal alarm system had been installed and the possibility of an individual being targeted on entry contemplated. The Bells knew of the substantial amounts of cash accumulating at the premises over the weekend period and must have been aware of the attractiveness of the reward to a successful robber. Bells’ response was inadequate. Mr Bell’s “security consciousness” and the other measures it relied upon did not suffice.
As far as the expected “target hardening” measures are concerned, apart from the informal instructions about entry given to Ms Petrie and Mr Arthur, Ms Ogden and other staff members were not trained to recognise or act to minimise risks associated with their times of arrival, parking habits, the need to be aware of the environment and generally keep watch, or their method of entry. I am not satisfied that Ms Ogden knew of the instructions to Mr Arthur and Ms Petrie, even though she may have enquired of Ms Petrie from time to time as to when she would be arriving at work. In any event, there was no evidence of the instructions given to Mr Arthur or Ms Petrie being enforced.
Further, in terms of equipment, there was no visible external CCTV camera apparently monitoring the Coventry Street door and the area outside it. There were no external signs of surveillance measures, nor any indication that only a small amount of cash was kept on site. Indeed, there was no process to reduce the significant amount of cash in the safe on Monday mornings, by means such as note drops into overnight or weekend safes at banks.
The fact that Mr Bell would have followed any advice to install an external CCTV camera and the additional fact that a police officer had mentioned to him that external surveillance was only required for premises with late licences and the potential for street trouble do not make it reasonable for Bells not to have taken that step.
Nor was it reasonable for Bells to have relied upon the relative business of the corner, passing commuting drivers or pedestrians or couriers frequenting the café across the road to maintain surveillance of the hotel on its behalf or to deter a would‑be robber. It could not rely upon a “two man rule” which was not communicated to Ms Ogden.
In my opinion, Bells breached its duty of care to Ms Ogden by failing to take at least the following steps, with a view to preventing the harm caused to her by a predictable robbery in all the circumstances:
(a)training her in relation to the manner of her arrival at the hotel, her approach to it and her entry when alone on Monday mornings;
(b)having visible external CCTV surveillance of the entrance, with signage or other indications of its presence; and
(c)reducing the amount of cash held on the premises after weekend trading and TAB activity, indicating by signage or otherwise that it had done so.
It would have been a reasonable response to the known risk of robbery for each of these measures to have been adopted, bearing in mind their likely relative expense and the probable level of associated difficulty and inconvenience.
Causation
I am not persuaded by Bells’ argument that none of the commonly employed preventative measures it should reasonably have taken would probably have prevented the robbery, bearing in mind that the robber’s behaviour demonstrated that he was aware of the security systems in place.
The robber had been able to plan the crime, apparently knowing of Ms Ogden’s relatively predictable routine on a Monday morning and the likely significant amount of the potential reward. There was little to suggest that this was an opportunistic crime committed on the spur of the moment. The robber had been able to approach his “soft target”, without wearing an obvious disguise, in the absence of any visible camera recording his approach and discouragement by signs indicating that the entrance was under surveillance or that the reward would be minimal. Ms Ogden was vulnerable, being alone and lacking training in self protective behaviour. She had not been told of any “two man rule” of entry applying to her or to others.
I am also satisfied that there was the requisite causal nexus between the robbery and Bells’ breach of duty. The robbery would probably have been avoided had Bells not failed to take the reasonably appropriate measures described[10].
[10]See: English v Rogers & Anor [2005] NSWCA 327 at [73] per Mason P (Santow JA and Brownie AJA agreeing).
I am also persuaded that Ms Ogden suffers from a severe chronic Post Traumatic Stress Disorder with the features of Panic Disorder with Agoraphobia and Depression as a consequence of the robbery and aggravated by the police raid.
She had previously experienced a significant number of stressful events including and in particular, the Adorna robbery. I am satisfied that she had recovered from the effects of any resulting Post Traumatic Stress Disorder and that her mental health was good at the time of the robbery, even though she might have been more vulnerable than others to the effects of the robbery and the police raid. I am not persuaded that any of her current symptoms are relevantly attributable to her pre-existing condition.
I am satisfied that, as a result of her severely disabling psychiatric condition, it is highly likely that Ms Ogden will never work again. Not only has her ability to work been affected by her condition, but she has suffered other devastating consequences in terms of her personal life, social interaction and family relationships. She is virtually an isolate, supported by her children and, in particular, by her son who has, in effect, become her carer. She is completely different from the confident, energetic, outgoing, well-groomed person she was before the robbery.
Ms Ogden has suffered the additional burden of being suspected of involvement in the crime of which she was the victim. Dr Brabin described her as someone who cares very much about her reputation and is eager to please. For her to bear suspicion has been particularly difficult. It was, nevertheless, a reasonably foreseeable consequence of a crime committed in the circumstances of the robbery that its victim might be suspected of involvement by her employer, fellow workers and police and that fellow workers and employers might describe her in critical terms.
On the other hand, notwithstanding any closeness between Mr Bell and police and his discussions with them about Ms Ogden as a suspect, I do not regard the manner in which the police investigation was conducted as a reasonably foreseeable consequence of the robbery. In my opinion, in the circumstances, the police raid is properly characterised as a novus actus interveniens, to the extent that it resulted in the aggravation of Ms Ogden’s condition.
Mr Zalewski refused to characterise the police conduct as any more than “unprofessional” or “improper”, but I regard the police misconduct as falling within Lord Wright’s description of an “unreasonable or extraneous or extrinsic” event.[11] I agree with Bells that, whilst it was clearly foreseeable that police would investigate Ms Ogden’s involvement, it was not reasonably foreseeable that they would behave in the highly improper manner they adopted both when dealing with her at home in front of her son and later at the police station. Given the nature of her previous connection with police through her husband and her general loss of trust after they misconducted themselves, the impact of the police reprehensible misbehaviour had a forceful impact on Ms Ogden.
[11][1943] P32 at 37, 39.
The question is as to how much of her current condition and symptomatology is causally connected to the raid itself. I am satisfied that the major part of her current condition is attributable to the effects of the robbery. I also accept the evidence to the effect that the impact of the police raid upon her was greater than it otherwise might have been, because of the fact that she had been the victim of the robbery and it re-traumatised her in relation to that event.
Counsel for Bells argue in effect that 33% of Ms Ogden’s current condition is attributable to the raid. In all the circumstances, and bearing in mind the additional impact of a police raid made in the context of the earlier robbery, I attribute 20% of the responsibility for Ms Ogden’s condition to the effects of the police raid and 80% to the robbery and its foreseeable consequences which included her being considered a suspect and treated as one.
Contributory negligence
I am not persuaded that Ms Ogden breached any “two man rule” known to her requiring that she enter the hotel in company with another person or to first determine that someone else was inside. So, she has not failed to take reasonable care for her own safety in that way.
Bells then submits that Ms Ogden failed to take reasonable care for her own safety, in any event, by entering the premises alone when she was aware of her vulnerability in all the circumstances. As a matter of commonsense, counsel contend, she should not have done so. I do not agree. Ms Ogden had suggested that there should be two people rostered on to open the hotel and also that a security guard be engaged for that purpose. She was a single supporting parent, with relatively few skills, who valued her job and her suggestions had not been taken up by her employer. Bells has not established that Ms Ogden was guilty of contributory negligence in this case.
Damages
Pain and suffering and loss of enjoyment of life
Counsel for Ms Ogden contended that the range of an appropriate award of damages for Ms Ogden’s pain and suffering and loss of enjoyment of life was between $280,000 and $350,000.00. Counsel for Bells submit that an appropriate award would be $150,000.
In my opinion, given what I have found to be the robbery’s serious consequences in terms of her pain and suffering and Ms Ogden’s loss of enjoyment of life, damages of $300,000 should be awarded to her under these heads in relation to the effects of the robbery and the police raid. As 80% of her condition is attributable to the robbery, the award should be $240,000 against Bells.
Loss of earning capacity
Pre-trial earnings
Mr Allan calculated Ms Ogden’s past loss of earnings on the assumption that there was little impact on her earnings between 23 May 2005 and the end of the 2005 financial year. Applying percentage movements in the Index of Average Weekly Earnings for Victoria, he calculated her after tax earnings to 31 October 2008 at $122,011. After deducting her estimated earnings from employment at Il Primo restaurant of $788, he concluded that her lost pre‑trial earnings were $121,223. I accept Mr Allan’s evidence in this regard.
I am satisfied that it is appropriate to apply a five per cent discount to that total, to allow for contingencies and for the effects of the police raid, bearing in mind that the robbery occurred only a relatively short time before trial, Bells Hotel remained in business, Ms Ogden’s job was performed by Mr Arthur and she had a long history of employment, all of which indicate the high probability that she would have kept her job between the robbery and 31 October 2008. I would calculate past loss of earnings at $115,162.
The parties are agreed that the Fox v Wood[12] component is $23,510.
Post trial earnings and superannuation
[12](1981) 148 CLR 438.
I think it probable that Ms Ogden would have worked to the age of 65 when she would have qualified for a pension. She was an active, enterprising, single supporting parent who valued her job and had coped very well in the more difficult circumstances confronted when her two children were younger. The job was attractive in that it involved social contact and was not one which required physical activity beyond an older person’s capacity. It would be likely that she would have wanted to consolidate her financial position by staying in a job she enjoyed.
I agree with counsel for Ms Ogden that Mr Arthur’s evidence as to his wages should determine the basis for the calculation of loss of future earnings. $900 should be the net figure for the weekly earnings (after deduction for tax of $292 and work related expenses calculated with reference to Ms Ogden’s past expenses and averaged at $100). The parties agree that the relevant multiplier to reflect a six per cent discount for a woman of her age to age 65 is 552.95. Ms Ogden’s net loss of earnings between 1 November 2008 and her 65th birthday on 4 April 2025, discounted by six per cent, would therefore be approximately $497,655.
Mr Allan calculated Ms Ogden’s loss of employer nine per cent superannuation contributions to 30 June 2008 at $11,636. On the basis that lost employer’s contributions are to be calculated on the gross salary of $1,292 per week thereafter, she would have foregone net weekly contributions of $98.84, totalling $86,090 relating to the additional period of 16 years and nine months before her 65th birthday on 4 April 2025. Her total lost contributions would therefore have amounted to approximately $97, 726.
Ms Ogden also claims 11% after tax earnings on her lost past and future superannuation contributions on the basis of Mr Allan’s conclusion that such an estimate was appropriate after reference to the average net returns for the immediate past five years. Mr Allan acknowledged his lack of expertise in economics or financial planning, but considered the figure prudent from his perspective as a chartered accountant to make the estimate on the basis of the average return five years before the robbery.
I am satisfied that Ms Ogden should receive compensation for the loss of earnings the total amount which would have been invested and inaccessible to her before retirement because to do otherwise would be to underestimate her loss.[13] Doing the best I can taking into account the current economic climate and Mr Allan’s opinion, I consider it appropriate to allow for a five per cent return on the lost employer’s contribution. Again, doing the best I can with Mr Allan’s calculations, I would calculate those lost earnings at $103,057. The total retirement benefit to Ms Ogden at 65 would on this basis have been the sum of her lost contributions of approximately $97,726 and $103,057, namely $200,783. After deducting the $579 which it is anticipated Ms Ogden would be entitled as superannuation benefit in relation to her employment since the robbery, the total estimated benefit would have been $200,204. Discounted by six per cent per annum,[14] that amount would have been approximately $76,878.
[13]See RTA v Cremorna [2001] NSWCA 338 at [80] – [95] per Sheller JA (Priestley and Stein JJA agreeing); Luntz Assessment of Damages for Personal Injury and Death, 4th ed, Butterworths 2002. at [5.3.6].
[14]See RTA v Cremorna [2001] NSWCA 338 at [80] – [95].
The total amount attributable to Ms Ogden’s future loss of income ($497,655) and superannuation entitlements ($76,878) is therefore $574,533. I would discount that amount by 20 per cent to $459,626, for vicissitudes and to reflect the effects of the police raid in relation to her incapacitation for employment.
Overall assessment
The total damages for the past and future effects of Ms Ogden’s loss of earning capacity calculated in this way would be $598,298. Adding $240,000 damages for pain and suffering and loss of enjoyment of life the total is $838,298.
Overall, noting the potential for overlap between the various heads of damage, I consider an award of $825,000 to be reasonable in this case.[15]
[15]See : Montfroy v Roads Corporation [2005] VSC 320 at [134] per Gillard J.
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