Osmond v Highway Traffic Control Pty Ltd
[2017] VCC 1449
•27 October 2017
3
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-15-02300
| TRACEY OSMOND | Plaintiff |
| v | |
| HIGHWAY TRAFFIC CONTROL PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10, 11, 12, 15, 16 May, and 20 June 2017 | |
DATE OF CHARGE: | 27 October 2017 | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1449 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Claim against employer for damages for sexual assault and harassment by co-employee – whether employer vicariously liable for acts of that employee – whether breach of duty of care by employer for failing to appropriately investigate plaintiff’s allegations – whether breach of duty as to the manner in which it treated the plaintiff after she reported the conduct of the co-employee – plaintiff alleges she suffered a Major Depressive Disorder – whether psychological injury reasonably foreseeable in the circumstances – whether employer on notice of risk of psychiatric injury – nature and content of duty of care
Legislation Cited: Accident Compensation Act 1985; Evidence Act 2008 (Vic), s140(2)(c)
Cases Cited:Briginshaw v Briginshaw (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors [1992] HCA 66; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC) (2007) 162 FCR 466; Blake v JR Perry Nominees Pty Ltd (2012) 38 VR 123; Prince Alfred College Incorporated v ADC [2016] HCA 37; Hayward v GeorgesLtd [1966] VR 202; Bayley v Manchester, Sheffield and Lincolnshire Railway Company (1873) LR 8 CP 148; Poland v John Parr and Sons [1927] 1 KB 236; Deatons Pty Ltd v Flew (1949) 79 CLR 370; Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Scott v Davis (2000) 204 CLR 333; New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; Starks v RSM Security Pty Ltd [2004] NSWCA 351; Sandstone DMC Pty Limited & Anor v Trajkovski & Anor [2006] NSWCA 205; Zorom Enterprises Pty Ltd (in liq) v Zabow [2007] 71 NSWLR 354; Ryan v Ann St Holdings Pty Ltd [2006] 2 QD R 486; Trotman v North Yorkshire County Council [1999] LGR 584; Bazley v Curry [1999] 2 SCR 534; Lister v HesleyHall Ltd (2002) 1 AC 215; Morris v C W Martin & Sons Pty Ltd [1966] 1QB 716; Jacobi v Griffiths [1999] 2 SCR 570; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Wearne v State of Victoria [2017] VSC 25; New South Wales v Mannall [2005] NSWCA 367; Taylor v Haileybury [2013] VSC 58; Box Hill Institute of TAFE v Johnson [2014] VSC 626; New South Wales v Fahy [2007] 232 CLR 486; Hegarty v Queensland Ambulance Service [2007] QCA 366
Judgment: The plaintiff’s claim is dismissed. Judgment for the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes QC with Mr C B Thomson | Hymans Solicitors |
| For the Defendant | Mr P J Jens QC with Ms B Myers | Lander & Rogers |
HIS HONOUR:
Preliminary
1 On Friday, 27 and Saturday, 28 March 2009, the plaintiff, Mrs Osmond, alleges a co-worker, Mr Aaron Urquhart, made inappropriate sexual contact with her, made personal remarks and acted in an inappropriate and sexually-related manner. This occurred while she was working for the defendant, Highway Traffic Control Pty Ltd (“HTC”), in rural Victoria in the course of her duties as a traffic controller.
2 Mrs Osmond says the conduct was uninvited and non-consensual. She was distressed as a result of what happened. Mr Urquhart generally denies these allegations. She claims HTC is vicariously liable for his conduct.
3 Further, Mrs Osmond says that HTC failed to properly or appropriately investigate the allegations after the sexually harassing conduct and that she was inappropriately treated by senior management at HTC, in particular as to the nature and type of the work duties she was allocated after she made her complaint. She says that despite being told her complaint was confidential, it was known by others in the workplace.
4 Mrs Osmond says each of these failures constitute a breach of the employer’s duty, as a result of which she says she has suffered a Major Depressive Disorder. She remained at work, and on 7 May 2009, suffered a fracture to her ankle. She kept working, but left work because of the ankle injury in late May 2009. She was certified to return on light duties in November 2009, but says she was unable to do so due to her psychological state.
5 Apart from a brief attempt to return to work, Mrs Osmond has not worked since. She claims to live a very isolated existence, severely affected by the Major Depressive Disorder.
6 HTC denies it acted inappropriately in relation to the allegations made, either as to the investigation of Mrs Osmond’s complaints, or in relation to the work she was allocated after they were made. Further, HTC says that if there was any inappropriate conduct on the part of Mr Urquhart, which it does not admit, he was acting outside the scope of his employment and it is not vicariously liable. HTC also says that even if it was negligent, the psychological injury Mrs Osmond says she suffered was not reasonably foreseeable in the circumstances.
The alleged sexually harassing conduct by Mr Urquhart
The evidence
7 For simplicity, I will refer to the allegations of sexually harassing conduct over 27 and 28 March 2009 as the “sexual conduct”.
8 Mrs Osmond gave evidence that she commenced with HTC in February 2009 as a casual employee. She undertook an induction course.[1] As a result, she became a probationary traffic controller. There was a subsequent further qualification to obtain a “full open ticket”, which she undertook later in June 2009.
[1]See Exhibit “A”, Traffic Control Training Manual
9 There was a substantial traffic control contract obtained by HTC to carry out work near the Sugarloaf Reservoir close to Yarra Glen in Victoria.[2] HTC employees were required to undertake various traffic control tasks in and around Yarra Glen and other country areas, including Glenburn and Yea (known collectively as the “Sugarloaf Project”). There were about forty HTC employees on the Sugarloaf Project.
[2]See Exhibit “C”, map of the area
10 As a casual, Mrs Osmond (like other workers) would receive a text message in the morning advising her whether she was to work, and on which project.
11 The directors or principals of the company included Mr Paul McRedmond and Mr Rod Gascoigne. One of the more senior traffic controllers employed by HTC at the Sugarloaf Project was Mr Aaron Urquhart. The work at Sugarloaf involved various traffic control duties at different sites. Often the workers would go off in pairs to a site with two-way radios, and direct traffic around construction areas. The work would start early in the morning at 5.00am or 6.00am. According to Mrs Osmond, Mr McRedmond told her that she would be working at the Sugarloaf Project until it concluded. Mrs Osmond’s son worked on site as well. She had obtained employment after her husband met Mr Gascoigne and Mr McRedmond on a social occasion.
12 On Thursday, 26 March 2009, Mrs Osmond was in a work vehicle with another employee, Mr Brett Ford, when they witnessed a car accident. As a result, they had to contact a supervisor, although the accident did not involve any of the HTC workers. The supervisor was not easy to reach.
13 On Friday, 27 March 2009, work started with a toolbox meeting at the principal Sugarloaf site at about 5.30am. Jobs were allocated, but Mrs Osmond’s name was not called out. She was subsequently advised she would be “floating”, and was then allocated to work with Mr Urquhart. She had not met him before. He told her that they were to go to a particular site (known as “B15”) to help set up traffic-control equipment. They drove to this site in a company truck, a fifteen to twenty-minute drive. Shortly after she got in the truck, Mr Urquhart said that it was nice to be working with her. She claims he rubbed his hand up and down her thigh. This happened several times. It was dark at the time. She did not do anything, but maintained a normal conversation. They completed work at the site. Because of the car accident the day before, she asked him for his telephone number so she could contact him if some similar event took place. He gave her two numbers, one of which he said was his “private number”. He suggested she could contact him at any time of day or night. Again, he rubbed his hand up and down her arm.
14 Mrs Osmond said she had concerns about his behaviour, but it was dark and they were in the “middle of nowhere”. His phone rang and they had to drive to another site. Again, he placed his hand and rubbed it against her thigh.
15 At the next site, they set up some signs. They were there a couple of hours. He asked her whether she was staying locally. She replied that she had thought about staying somewhere locally with her son. He offered for her to stay in his caravan which was located nearby. He said he would take her out for dinner and they could have drinks together. She refused, and said that she was going home to her family.
16 Mrs Osmond said at one point he left her on the highway for about an hour while he went to another site. She was not meant to be on her own. When he returned, she got back into the truck. He told her that she was good looking, that he had an open relationship with his partner, and while on the Sugarloaf Project, he could “do whatever he liked”. She said that she was going home to her husband and daughter. When he had returned, the interior of the truck was hot because the heater had been on. She said that he had unbuttoned his shirt and was wearing a white singlet underneath. She said he had adjusted the centre console in the front seat so there was nothing separating them. She said he tried to put his left arm around behind her and adjusted the seat into a reclining position. She said she moved as far away as possible, panicked, and got out of the truck to have a cigarette. At that point, his telephone rang for them to go to another site. She reluctantly got back into the truck. He offered to take her to lunch in Yea, towards which they were headed. At the next site, known as “She Oaks”, another employee, Mr Peter Shields, was there, and out of concern for being alone with Mr Urquhart, she asked Mr Shields to accompany them to lunch. The three of them went to lunch in Yea. During the lunch, she kept her distance from Mr Urquhart. After lunch, she was sent to another site to relieve another worker. She had no further contact with Mr Urquhart that day. She made no complaint to anyone at HTC about his conduct.
17 The next morning, Mrs Osmond was assigned work at the Sugarloaf Project. She was paired again with Mr Urquhart. He wanted her to walk with him to a rear compound, a ten-minute walk, to pick up a utility vehicle. She refused to walk with him, but stood near a security guard. On this occasion, the utility was smaller than the truck used the day before. As they drove away, he told her he had arranged with the supervisor for them to be together that day. She said this terrified her. She said he lifted her jacket and started touching her again. She said she had a cold and pulled it down. She said she felt she could not escape him. Later, she told him that her husband knew the owners of the company. He left some time after that. That was the end of the sexual conduct.
18 Mr Urquhart gave evidence as to what had occurred. He started work for HTC in about March 2008. He said all the employees of HTC working at the Sugarloaf Project were casual. The project finished in December 2009. He left it in November 2009, although returned to carry out some “defects work” the next year. He said, on the first day, a supervisor, Brad Phelps, paired him up with Mrs Osmond. There were a number of vehicles, including a Mazda BT-50 and a Toyota Hilux, which were both utilities. There were also a couple of trucks on site. Altogether, there were twelve or fifteen vehicles. He denied anything untoward occurred on either day. He said his parents owned a caravan which he parked at Lilydale, which considerably reduced the time of the journey to the Sugarloaf Project. The caravan had two separate sleeping areas. He had told a number of other workers, including female workers, that it was available for those who wished to sleep the night to reduce fatigue caused by travel to Melbourne. He could not recall exchanging telephone numbers with Mrs Osmond, but said that could have occurred. He may have said for Mrs Osmond to call him day or night. He denied, absolutely, stroking her on the thigh or anywhere else at any time. He denied telling her that she was attractive, or that he was in an open relationship with his partner and could do what he liked when at Sugarloaf. He said he may well have offered for her to stay in his caravan, but it conveyed no sexual connotation.
19 Mr Urquhart denied telling Mrs Osmond that he wanted to work with her permanently.
20 Mr Urquhart could not recall whether he had invited Mrs Osmond to lunch at Yea, or whether Peter Schultz attended. He said it was usual for people who had been assigned to work together to go together to pick up a vehicle, which would be four or five minutes away, at the most. He denied asking her how she got the job, and said that that would not have come up.
21 Mr Urquhart admitted he may have been called away to another site, but denied that when he came back he would have unbuttoned his shirt to the waist. He always wore a singlet. He did not recall pulling back the centre console to make a bench seat. He denied putting his arm behind Mrs Osmond, or attempting to cuddle her. He denied, again, rubbing her thigh on the second day, or attempting to affectionately hold her. He denied complimenting her on her looks, or telling her that she had low self-esteem. He accepted such comments were entirely inappropriate in the workplace.
22 After a complaint was made by Mrs Osmond, Mr Urquhart said he was asked by HTC to provide a written statement, which he did.[3] He thought he provided that on the Tuesday after the alleged events.
[3]Exhibit 5
23 Mr Urquhart said that after the allegations were made he sought statutory declarations from a number of other workers, both male and female, to whom he had offered accommodation in the caravan.
24 Mr Urquhart said, in March 2009, he was engaged to his current wife. They married in December of that year. At the relevant time, she would come up to stay in the caravan about twice a week.
The credibility of Mrs Osmond
25 Mrs Osmond regularly became upset in the course of her evidence, frequently becoming inconsolable and required breaks. The mention of Mr Urquhart’s name, or the events of 27 and 28 March 2009, often caused her to shake and become visibly distressed. She held a crystal supplied to her by her psychologist, which she used for comfort. She had to be constantly asked to keep her voice up.
26 Mr Jens submitted Mrs Osmond was not a reliable witness and the Court should be cautious in accepting her evidence. He noted instances where Mrs Osmond’s evidence was inconsistent. First was her evidence regarding her prior psychological difficulties. Mr Jens submitted that she had denied, or minimised, any prior psychological history to a number of doctors,[4] yet the records of the Duff Street and Stirling Medical Clinics revealed multiple attendances in 2005 for stress, poor sleep, tearfulness, lack of energy and prescriptions for Zoloft and Temazepam. Further, there were attendances from August 2008 for headaches and insomnia due to work stress and depression in September 2008. There was evidence of an attendance on psychologist, Dr Petrulis, in November 2008 for severe depression, anxiety, stress, insomnia, a mild eating disorder and lack of energy.
[4]Including Doctors Heffernan Scanlon, Triggs, Jager, Paoletti and Mendelson – see defence submissions, page 10
27 Mr Jens submitted that the plaintiff failed to give evidence of any prior psychological difficulty in examination-in-chief. He said her only evidence in this regard was that she attended grief counselling after the death of her mother and said she was bullied towards the end of her dental nursing placement in 2008. She said she saw a general practitioner, and a psychologist for one day, and that he had wanted to give her antidepressants but she refused to take them. The plaintiff disputed the entries of the Stirling Medical Clinic in 2005 when it was recorded she had taken Zoloft. She said she may have received, but did not fill, the prescription. Similarly, she gave evidence that she did not fill the prescription for Zoloft by Dr Zhou in 2008.
28 Secondly, Mr Jens took issue with Mrs Osmond’s evidence as to her psychological difficulties between 14 April and November 2009. She said she complained to her general practitioner at the Duff Street Medical Clinic between these dates, of psychological difficulties arising from the sexual conduct. Mr Jens said the clinical records made no mention of any such symptoms. Had she made those complaints, it was likely it would have been recorded. Furthermore, Dr Williams, her general practitioner, gave evidence that the WorkCover Certificates of Capacity for the period May to November 2009 did not mention any stress condition, and were related exclusively to problems with Mrs Osmond’s fractured ankle.
29 Although Mrs Osmond accepted she injured her back in August 2015, she was reluctant to admit the severity of the injury. Mr Jens said her evidence as to the other circumstances/conditions that had incapacitated her since 2009 was not credible. He said she downplayed her back injury in particular in saying her enjoyment of a cruise to Tasmania in January 2016 was a result of her psychological injury whereas Ms Anderson, her friend, said in evidence, it was the back pain that restricted Mrs Osmond’s participation in shore excursions while on the cruise.
30 Mr Jens noted the difference between paragraph 10 of Mrs Osmond’s affidavit where she swore she was grateful for Mr Urquhart leaving her, and her oral evidence, where she described being scared, left alone on the side of the highway.
31 Mr Jens said only Mrs Osmond and Mr Urquhart were present at the time of the sexual conduct and their evidence as to what happened was contradictory. Further, Mr Jens submitted it was relevant that Mrs Osmond did not take any of the available opportunities to tell anyone of Mr Urquhart’s behaviour. She spoke to Mr McRedmond at the end of the day on 27 March 2009 but did not tell him of the sexual conduct. The first people she told, according to her evidence, were her husband and sister, neither of whom were called to give evidence.
32 Mr Jens submitted that the allegations concerning the sexual conduct against Mr Urquhart were grave and, in essence, criminal offending, and that I ought to apply a higher test to the Briginshaw[5] standard as contemplated by s140(2)(c) of the Evidence Act 2008 (Vic).
[5]Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2
33 In response, Ms Forbes, for the plaintiff, said the credibility of the plaintiff was not undermined. She noted that while there may be a record of prescriptions being given to Mrs Osmond, that did not mean she filled them and took the medication. She said Mrs Osmond gave consistent evidence, although became distraught due to her emotional state. She was particularly upset at the prospect of the presence of Mr Urquhart in Court, consistent with the impact of his conduct upon her. Further, she disputed there was any real inadequacy in histories provided to the various doctors. Mrs Osmond’s treating psychiatrist had a relevant history of her reaction to her mother’s death, which her general practitioner attempted to treat with medication. The treating psychologist, Ms Scanlon, also received an adequate history. The grief reaction was also reported to Doctors Paoletti and Triggs.[6] The prescription of Avanza in 2009 was to assist with sleep, and not used as an antidepressant.
[6]See Plaintiff’s submissions, page 18
34 Ms Forbes submitted Mrs Osmond overcame her family grief issues and the earlier bullying events while working as a dental nurse. Her client had accepted the occurrence of her back injury in August 2015, and that while she was in the witness box over a number of days there were no visible symptoms of back discomfort or incapacity.[7]
[7]See Plaintiff’s submissions, page 19
35 As to the standard of proof to be adopted, Ms Forbes emphasised Mr Urquhart was a witness to the proceeding and not a party. The appropriate standard was the balance of probabilities, and s140 of the Evidence Act required no higher standard. She submitted no adverse inference ought to be drawn for the plaintiff’s husband and sister not being called.
Analysis
36 I do have reservations about the credibility of Mrs Osmond. While she was undoubtedly distressed in the course of her evidence, she did not regularly respond to questions in cross-examination in a straightforward and forthright manner, as I would have expected of an honest witness. While I accept she undoubtedly has a significant psychological condition, I concluded that, at least in part, the distress she exhibited and the complete aversion to even the mention of Mr Urquhart’s name, was an attempt to emphasise to the Court the nature and extent of her condition.
37 Further, I was unimpressed with Mrs Osmond’s evidence about failure to disclose to the Court, and to a range of the treating and consultant practitioners, the full nature and extent of her prior psychiatric history. It is clear from the clinical records of the general practices which she attended that she was at least prescribed antidepressant medication for a range of psychological symptoms in 2005. As late as August 2008, she had a range of psychological issues and attended a psychologist, Dr Petrulis, with a diagnosis of “severe depression and anxiety, moderate stress, insomnia, mild eating disorder, lack of energy … .” That practitioner suggested that she required observation and treatment.[8]
[8]Exhibit “F”
38 As Mr Jens submitted, to many practitioners, Mrs Osmond denied, or gave a limited past psychiatric history. While I accept that it would appear in relation to her family bereavement and the earlier bullying episode, those matters did not prevent her from engaging in employment with HTC. Nonetheless, I would have expected an honest witness to make a much more full and frank explanation of these matters.
The credibility of Mr Urquhart
39 Mr Urquhart did not take issue with a number of the allegations of Mrs Osmond in relation to the sexual conduct. While he could not recall precise detail, he accepted he would have provided Mrs Osmond with his work telephone number, and private mobile telephone number.[9] He accepted he would have offered for her to stay in his caravan, which contained two separate sleeping compartments, so that she would not have to drive the long distance home. He said he had offered this to many other employees, including female employees.[10] Such an invitation, if made, bore no sexual overtone. He said he always wore a singlet, but denied that he purposefully left his shirt undone as a sexual gesture.[11] Further, he may have spoken to Brad Phelps about pairing up with people whose company he enjoyed, although he could not recall if that had occurred with Mrs Osmond.[12] To those he invited to the caravan, he may have suggested a meal at the pub or to have a beer, although denied he would have suggested having drinks with her back at the caravan.[13]
[9]Transcript (“T”) 441
[10]T439-40
[11]T446-7
[12]T479
[13]T470
40 Mr Urquhart denied, absolutely, any inappropriate touching on either day. He denied making personal comments such as saying he found her attractive or that he was in an open relationship with his partner. He denied his invitation for her to stay in the caravan had any sexual connotation. He said Mrs Osmond was assigned to him initially and it was common to work with the same person two days running. He denied saying that he wanted to work with her permanently. He denied asking Mrs Osmond how she got the job.[14] He said such a matter would not come up in conversation as he was concentrating on the work in hand.
[14]T446
41 Ms Forbes submitted that the denials of what was unarguably improper conduct were self-serving and ought not be accepted. She said there were inconsistencies in his evidence in relation to his offer of drinks at the caravan, evidence relating to whether he knew her son was working on site and having no recollection, and then denying he would have asked her as to how she got the job.[15]
[15]See Plaintiff’s submissions, paragraph [11]
Analysis
42 In my view, Mr Urquhart gave evidence in a relatively straightforward manner. It is true that he had limited recollection of many aspects of Mrs Osmond’s claims, but that is not unexpected given the lapse of time since the events occurred. I have some reservations about his credibility. He maintained that it was quite appropriate for him to offer accommodation in his caravan to female employees of HTC, including Mrs Osmond, who had only just commenced work with the company. It is difficult to understand how he could consider such an invitation was in any way appropriate with someone he barely knew, including a married female employee. Even accepting the caravan had separate quarters and that he had apparently offered the same accommodation to other female employees, that invitation was quite inappropriate.
43 Further, Mr Urquhart denied specifically asking Mrs Osmond how she had obtained the job.[16] He further denied that it could have happened.[17] It is difficult to know how Mr Urquhart could be so adamant in this denial. It would seem likely that, when being paired for the first time, he would have asked how Mrs Osmond came to be working for HTC.
[16]T446
[17]T483
44 While I would not dismiss Mr Urquhart’s evidence entirely out of hand, for the reasons stated, I do have reservations about his credibility.
Analysis as to whether the sexual conduct occurred
45 Section 140 of the Evidence Act provides:
“(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.”
46 The allegations against Mr Urquhart are undoubtedly serious. The more significant allegations amount to criminal conduct, if proven. Grave consequences may follow. According to Odgers, ‘Uniform Evidence Law in Victoria’:
“The standard of proof remains the same but the court should be satisfied that the allegation has been provided on the balance of probabilities until it has exercised the caution appropriate to the issue in the particular circumstances by a careful examination of the whole of the evidence.”[18]
[18]1.4.100 at 775
47 The classic statement by Dixon J in Briginshaw v Briginshaw[19] has been modified to some extent by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors.[20] The High Court emphasised that the standard of proof in civil litigation is proof on the balance of probabilities, even when criminal offending is involved. The court noted that people in society do not ordinarily engage in criminal conduct and as such a court should not lightly make a finding to that effect.
[19](Supra)
[20][1992] HCA 66
48 In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC),[21] the Full Federal Court observed:
“Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw v Briginshaw [citation provided] of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact.”[22]
[21](2007) 162 FCR 466
[22](Supra) at paragraph [31]
49 Bearing in mind these authorities, I accept that an allegation is proven if it is made out on the balance of probabilities. The law requires no higher test. However, I need to be persuaded by the evidence, bearing in mind the allegations involve criminal offending.
50 I am satisfied the more serious allegations of Mrs Osmond are made out. I am satisfied that the allegations occurred generally in the manner she described. While some matters, such as the exchange of telephone numbers, the invitation to lunch and possibly the exposing of Mr Urquhart’s singlet, are matters which have, in Mrs Osmond’s mind, assumed an inappropriate sexual flavour where none was intended, nonetheless, the more serious allegations of inappropriate rubbing of the thigh, attempting to place his hand on her arm or around her shoulders and the offer of caravan accommodation, are made out, and constitute inappropriate sexual conduct.
51 I have reservations about the credibility both of Mrs Osmond and Mr Urquhart. However, there was a clarity and believability about Mrs Osmond’s evidence about the stroking of her thigh and other parts of her body. It is difficult to understand how that could have been invented against someone she had only just met. I should be cautious to accept serious allegations simply on the basis that they have been made. I need to be persuaded by the evidence. While Mrs Osmond did not complain of the conduct for some days, she did raise the matter with Mr McRedmond within a relatively short time. The complaints were specific as to what occurred. I am satisfied the conduct which she alleges against Mr Urquhart generally occurred in the manner she described.
52 In summary, my findings are that on 27 March 2009, Mr Urquhart rubbed his hand up and down the plaintiff’s thigh on several occasions. He offered her accommodation in his caravan and offered to take her for drinks and dinner. These offers had a sexual connotation. Further, he made personal comments about her, including that she was good looking, that he was in an open relationship with his partner, and that he could behave inappropriately. These comments also had a sexual connotation.
53 On the next day, Saturday, 28 March 2009, I am satisfied that Mr Urquhart said to Mrs Osmond that he had arranged, through the supervisor, for them to work together. I am further satisfied that he attempted to lift her jacket, and commenced touching her again, and attempted to put his arm around her. I am satisfied that this conduct was entirely inappropriate and the physical touching constituted sexual assault.
Vicarious liability of HTC for the sexual conduct
54The next issue to be determined is whether the defendant employer is vicariously liable for the sexual conduct.
The evidence and the issues
55 Mrs Osmond started work with HTC in February 2009 as a probationary traffic controller. Mr Urquhart had worked for a longer period, and was a “fully-ticketed” traffic controller. The central site where the work was allocated, and the places where the assigned jobs were to be carried out, was in relatively remote parts of country Victoria.
56 In the early hours of the morning of 27 March 2009, Mrs Osmond was allocated to work with Mr Urquhart, whom she had not met before. She said Mr Urquhart suggested he had arranged with Brad Phelps for them to work together. They were assigned a work utility or truck, and drove some distance from the Sugarloaf site. They were alone in the vehicle when he rubbed his hand along her thigh. There were a few people around at the time. Over the two days, Mr Urquhart drove the vehicle, with Mrs Osmond as the passenger.
57 At one point, he left her on the highway when he had to travel away to adjust some signs. She thought he would be away only a short time, but he was away for an hour.
58 The next day, Saturday, 28 March 2009, Mrs Osmond was again allocated to Mr Urquhart by Mr Phelps. She made no complaint about the previous day’s conduct. It was not until the next Monday she made a complaint to Mr McRedmond, with whom she said she was able to speak freely.
59 After Mrs Osmond spoke to Mr McRedmond on the Monday to complain of Mr Urquhart’s conduct, Mr McRedmond asked her to come to see him the next day. His response was prompt.
60 Mr Paul McRedmond gave evidence. He was the owner of HTC at the relevant time with Mr Rod Gascoigne. He went to the Sugarloaf site regularly in 2009. He recalled the complaint by Mrs Osmond against Mr Urquhart and the subsequent investigations. He played a role in that. He said the company took allegations of sexual harassment seriously. He said that all the staff retained at the Sugarloaf site were casual and were texted every day for work allocation. He received no complaint in relation to Mr Urquhart’s caravan, nor any allegations of sexual harassment or inappropriate conduct about him before the incident with Mrs Osmond.
Submissions of the parties
61Ms Forbes referred to a number of factors as a basis for the defendant being vicariously liable for Mr Urquhart’s actions.
62Ms Forbes said the allocation of Mr Urquhart to work with Mrs Osmond put him in a position such as to enable him to take advantage of the situation. There was a disparity of power, in that Mr Urquhart was a team leader and the holder of a traffic management licence, whereas Mrs Osmond held only a probationary licence. Mr Urquhart was the more senior employee.
63Further, the nature of the work in remote areas required the pair to travel alone together in a company vehicle over significant distances. Mr Urquhart was in control of the vehicle. Although not aware that Mr Urquhart had a caravan, Mr McRedmond was aware that some employees rented a communal house. The pairing of an inexperienced probationary traffic controller with a more experienced one, as allocated by Brad Phelps, was a matter that was in the furtherance of HTC’s interests.
64Mrs Osmond was entrusted to work under Mr Urquhart’s care and supervision over 27 and 28 March 2009. This was a further basis for a finding of vicarious liability.
65Mr Jens submitted that the working relationship between Mr Urquhart and Mrs Osmond was of two adults working together on a dayshift which involved frequent contact with other adults throughout the working day. He said that there was no suggestion that the circumstances created a situation of intimacy, power or control. He distinguished the relationship of the plaintiff and Mr Urquhart from a boarding house master who had overnight care and supervision of children. Instead, Mr Jens submitted, this was a case where the plaintiff was an independent adult who was working on a day-to-day basis.
66Mr Jens referred to Harper JA in Blake v JR Perry Nominees Pty Ltd:[23]
“… it is not sufficient to establish merely that, but for the employment, the wrongful act could not or would not have occurred.”[24]
[23](2010) 195 IR 336
[24](Supra) at paragraph [47]
67Further, he cited Prince Alfred College Incorporated v ADC:[25]
“… Conversely, the fact that employment affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability.”[26]
[25][2016] HCA 37
[26](Supra) at paragraph [80]
68Mr Jens submitted that the alleged actions of Mr Urquhart were against the requirements and interests of the defendant and that the defendant did not create the circumstances that would connect the alleged behaviour to Mr Urquhart’s employment.
Applicable legal principles
69 Vicarious liability may attach not only for an employee’s negligence, but also for intentional acts, including wilful wrongdoing. When the employee’s conduct was undertaken in the furtherance of the interests of the employer, vicarious liability is more readily invoked.[27]
[27]Hayward v Georges Ltd [1966] VR 202; Bayley v Manchester, Sheffield and Lincolnshire Railway Company (1873) LR 8 CP 148; Poland v John Parr and Sons [1927] 1 KB 236
70 In Deatons Pty Ltd v Flew,[28] Dixon CJ said, concerning the act of a barmaid who threw a beer glass into the face of a disruptive patron:
“It is not a case of a negligent or improper act, due to error or ill judgment, but done in the supposed furtherance of the master's interests. Nor is it one of those wrongful acts done for the servant's own benefit for which the master is liable when they are acts to which the ostensible performance of his master's work gives occasion or which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master.”[29]
[28](1949) 79 CLR 370
[29](Supra) at 381
71 The court found that the employer was not responsible. Dixon CJ said the barmaid did not throw the beer or the glass in the course of maintaining discipline or restoring order. It was:
“… an act of passion and resentment done neither in furtherance of the master’s interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid.”[30]
[30](Supra) at 381-382
72 In Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu,[31] the New South Wales Court of Appeal considered the issue of vicarious liability in circumstances where a security guard was the subject of humiliating and harassing treatment by a more senior co-employee. The court upheld the trial judge’s conclusion that the employer was vicariously liable for many of the acts alleged, although noted the trial judge specifically excluded various sexual acts, including those undertaken at employment-provided premises. That finding was not the subject of the appeal. The Court of Appeal found that the offending employee’s conduct was closely connected with his course of employment and represented the “doing of an authorised act in an unauthorised way”.[32] The offending conduct “was done in the ostensible pursuit of the employer’s business or the apparent execution of the authority which the employer held out the employee as having”.[33]
[31][2007] NSWCA 377
[32](Supra) at paragraph [88]. referring to the judgment of New South Wales v Lepore (2003) 212 CLR 511
[33](Supra)
73 In Blake v JR Perry Nominees Pty Ltd,[34] J Forrest J was concerned with an unlawful assault performed upon a fellow employee at work premises. The plaintiff and several other employees were at a wharf, awaiting the arrival of a vessel for re-fuelling. As part of a skylarking prank, one employee struck the plaintiff on the back of his legs, causing him to fall to the ground and injure his back. His Honour said the incident was a deliberate and intentional assault. In assessing whether the incident was caused in the course of employment, his Honour traced the decisions on point in the High Court, including Hollis v Vabu Pty Ltd,[35] Scott v Davis,[36] New South Wales v Lepore;Samin v Queensland; Rich v Queensland.[37] He considered a submission that, given the employees were waiting for the arrival of the vessel and the assault was conducted in that waiting period, the incident happened with the employer’s implied authority. However, he concluded that an unlawful act of striking a fellow employee could not be said to be within the employee’s implied authority. It was not material that the action may be described as a prank carried out of a sense of boredom.
[34](Supra)
[35](2001) 207 CLR 21
[36](2000) 204 CLR 333
[37](2003) 212 CLR 511
74 His Honour referred to a number of the cases involving security guards or bouncers who cause injury in the course of ejecting patrons.[38] In those cases, the actions of the bouncer were said to be in the course of their employment because of the close causal connection between the infliction of the assault and the employment itself, which authorised the removal of patrons from premises, including by unauthorised means. His Honour drew a distinction between those cases and the acts of the employee who assaulted the plaintiff, whose duties included the delivery of fuel to a docking vessel. He said:
“Assault of a fellow employee (whether playful, intentional, a prank or arising out of spite) does not further the interests of the employer.”[39]
[38]Starks v RSM Security Pty Ltd [2004] NSWCA 351; Sandstone DMC Pty Limited & Anor v Trajkovski & Anor [2006] NSWCA 205; Zorom Enterprises Pty Ltd (in liq) v Zabow [2007] 71 NSWLR 354; Ryan v Ann St Holdings Pty Ltd [2006] 2 QD R 486
[39]Blake v JR Perry Nominees Pty Ltd (supra) at paragraph [82]
75 In considering whether the assault was sufficiently closely connected to employment such as to give rise to a finding of vicarious liability, his Honour concluded the actions of the assailant could not be regarded as something enabling him to more readily perform a function within the scope of his employment.
76 His Honour concluded the employer was not vicariously liable for the actions of the offending employee.
77 The decision was upheld by the majority on appeal.[40] Harper JA referred to a number of cases involving sexual assault.[41] He noted the close connection in those cases between the employment and the wrong committed, including the creation or enhancement of a risk which led to the wrong. The sexual assaults took place when the employee was engaged in the duties of employment, including the entrusted care of children:
“After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in [the boarding house].”[42]
[40](Supra)
[41]Trotman v North Yorkshire County Council [1999] LGR 584; Bazley v Curry [1999] 2 SCR 534 and Lister v HesleyHall Ltd (2002) 1 AC 215
[42]Lister v Hesley Hall Ltd (supra) at paragraph [28]
78 The majority concluded that the assault was not within the employee’s implied authority. There was no connection between the creation of the risk and the wrong which ensued. The court rejected the concept that boredom, brought about by waiting upon the dock over a lengthy period, was a precipitating factor in the assault.
79 In Prince Alfred College Incorporated v ADC,[43] the High Court made comment, in the context of a limitation of actions argument, as to the vicarious liability of the college for the sexual abuse perpetrated by a housemaster on a twelve-year-old boarder. In cases involving sexual assault in those circumstances, the court said it was appropriate to take account of the special role that the employer had assigned to the employee and the position in which that employee was placed. It was necessary to consider the issues of authority, power, trust, control and the ability to achieve intimacy with the victim. The fact that the wrongful act was a criminal offence did not preclude the possibility of vicarious liability. The majority said:
“… the role given to the employee and the nature of the employee’s responsibilities may justify the conclusion that the employment not only provided an opportunity but also was the occasion for the commission of the wrongful act. By way of example, it may be sufficient to hold an employer vicariously liable for a criminal act committed by an employee where, in the commission of that act, the employee used or took advantage of the position in which the employment placed the employee vis-à-vis the victim.
Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the ‘occasion’ for the wrongful act, particular features may be taken into account. They include authority, … . Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.”[44]
[43](Supra)
[44](Supra) at paragraphs [80]-[81]
80 However, the fact that employment offered the opportunity for the commission of a wrongful act did not, of itself, necessarily attract vicarious liability. The High Court referred to the decision of Morris v C W Martin & Sons Pty Ltd,[45] where vicarious liability was established where an employee stole a mink fur left for cleaning. Diplock LJ made it plain that something more was necessary than that the employment merely created the opportunity for a wrongful act to take place. A similar view was expressed in a number of other decisions.[46] In short, an employer could not be responsible for an employee who was “on a frolic of his own”.[47]
[45][1966] 1 QB 716
[46]Jacobi v Griffiths [1999] 2 SCR 570; Lister v Hesley Hall Limited (supra)
[47]Morris v C W Martin & Sons Pty Ltd (supra) at 733
81 While Gageler and Gordon JJ agreed with the approach of the majority, they acknowledged that there was no “absolute rule” as to the circumstances in which vicarious liability may arise:
“The course of decisions in this Court and the courts of final appeal in the United Kingdom and in Canada reveals that decisions concerning vicarious responsibility for intentional wrongdoing are particularly fact specific. Decisions in the United Kingdom and Canada recognise that resolution of each case will turn on its own particular facts and that existing cases provide guidance in the resolution of contestable and contested questions.
…
The ‘relevant approach’ described in the other reasons is necessarily general. It does not and cannot prescribe an absolute rule. Applications of the approach must and will develop case by case. Some plaintiffs will win. Some plaintiffs will lose. … The Court cannot and does not mark out the exact boundaries of any principle of vicarious liability in this case.”[48]
[48](Supra) at paragraphs [128]-[131]
Analysis
82I accept that Mr Urquhart was, generally speaking, an employee more experienced and more senior in the company hierarchy than Mrs Osmond. I further accept that the duties as a traffic controller took Mr Urquhart and Mrs Osmond to various locations which were relatively remote, albeit with the ability to contact other employees and construction workers in the vicinity.
83In my view, the facts and circumstances of this proceeding are significantly different from those cases involving sexual assault carried out by a teacher or boarding master at a school or a like institution. That particular form of intimate contact, in circumstances where the teacher or boarding master resides in the same premises, and where there is a disparity of power and a repository of trust, is distinctly different from the facts of the present case.
84The conduct by Mr Urquhart was criminal offending. It was sexual assault, unprovoked and non-consensual.
85The facts are more aligned with those in Blake v JR Perry Nominees Pty Ltd.[49] J Forrest J considered the conduct of the employee involved in the assault. He noted the reference found in Salmond, ‘Law of Torts’:
“An employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes – although improper modes – of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.”[50]
[49](Supra)
[50]Reference is to the decision of Gleeson CJ in New South Wales v Lepore; Samin v Queensland; Rich v Queensland (supra) at paragraph [42]
86 The only connection between the sexual conduct and the employment was that Mr Urquhart and Mrs Osmond were allocated together, in a vehicle, travelling through relatively remote areas. It was not as if Mr Urquhart was assigned some employment task which he carried out in an inappropriate manner. His conduct involved sexual gratification entirely divorced from his assigned role as a traffic controller. While the employment gave him the opportunity for the sexual conduct, it was entirely otherwise unconnected with his tasks and obligations. His actions could not be said to be in any way in furtherance of the employer’s interests. To the contrary, the sexual conduct was very much against the employer’s interests.
87 This is not a case of a bouncer using greater force than was necessary to further his employer’s aims of maintaining order, or of a barmaid causing injury in trying to control a drunken patron, or even injury caused by skylarking when boredom set in at a workplace. There is no connection between the injurious conduct and the work tasks.
88 There was nothing to suggest the management of the defendant had any inkling Mr Urquhart would act as he did. The mere fact that the employment duties facilitated Mr Urquhart and Mrs Osmond being together for varying periods of time over the relevant two days, even where there was some disparity of experience and seniority between them, does not give rise to a responsibility within HTC for Mr Urquhart’s conduct.
89 In the circumstances, the submissions of the defendant should be accepted. The defendant is not vicariously liable for the actions of Mr Urquhart.
Negligence – post complaint conduct
The evidence
90Mrs Osmond returned to work following the Easter break on 14 April 2009. She continued to work at various sites until late May 2009 when she ceased work, not as a result of any psychological issues, but because she suffered a fracture to her ankle. I am satisfied there was no evidence to suggest she reported any psychological symptoms to anyone at HTC, nor complained about any issues relating to the investigation of Mr Urquhart’s conduct.
91Mrs Osmond started receiving text messages for various jobs from 14 April 2009. She said that following the complaint, she was given less hours. She said she did not work on the Sugarloaf Project again. She worked on a site at Romsey with a co-employee, Mr Leroy Smithwick. Mrs Osmond said there was no one to relieve either of them and they had to stand at the end of the road and manage the traffic by communicating with each other on radios. She said she had to stand the whole day and was not given a break. She said Mr Smithwick was sitting in his vehicle the whole time. She said he told her to bring a chair with her the following day so that she could sit down and have a break too. She took a collapsible camping chair and took a break, sitting from time to time when there was a break from the cars. Mrs Osmond said she was telephoned by Mr McRedmond after the job and he threatened to terminate her employment as she had been sitting down on the job. She explained that Mr Smithwick had been sitting down too. Mr McRedmond then told her “it was a warning”.
92Mrs Osmond said Mr Smithwick refused to work with her again and then on another day following, she was sent to Romsey alone. She was told no one else was required. She said she was scared and asked her husband to come too, as she was not qualified, and did not believe she could work the site on her own. Mrs Osmond said she was also sent to South Yarra where she worked with another person in traffic management, but without someone to relieve. She said before she made the complaint, she had never been sent out without a co-employee to relieve.
93Mr McRedmond gave evidence that numbers at Sugarloaf had decreased from forty-five to around thirty, and that Mrs Osmond was told that was why she had not been back at that project. He said that was discussed at the meeting as Mr Oates, a union official, had spoken up and made a point of saying that Mrs Osmond should not be disadvantaged in any way because of her complaint. He said Mrs Osmond made two requests following her complaint; the first was that she would not work again with Mr Urquhart, and the second was that she wanted him to apologise for what he had done.
94Mr McRedmond said there was discussion in the meeting as to the numbers of workers at the project, as the company had wanted Mrs Osmond to understand that the reason she had not been sent to Sugarloaf had nothing to do with her complaint. Mr McRedmond said that he could not recall why the numbers had dropped, but said it was a common occurrence in the traffic management industry. He said numbers fluctuated on a daily basis, depending on what works were being conducted. He also confirmed that she was advised that with Easter approaching there would be limited work opportunities, and it was stressed to her that if there was only a couple of days’ work available, it was in no way to do with the fact that she had raised the claim.
95Mr McRedmond said that while he did not recall a conversation with Mrs Osmond about permanent work at Sugarloaf, such a conversation would be completely at odds with how he would respond to anyone approaching him about work within the traffic management industry. He said there were no guarantees. He denied singling Mrs Osmond out and treating her differently to everyone else. In cross-examination, Mr McRedmond conceded that the notes he took at the time did not detail whether either himself or Mr Gascoigne had advised Mr Urquhart that the complaint had to be kept confidential. He said it was necessary for him to allow Mr Urquhart to respond to the complaint.
Submissions of the Plaintiff
96Ms Forbes submitted I ought to accept the evidence of Mrs Osmond that she was discriminated against after making the complaint, in particular, in that she was allocated less favourable and rewarding work. The work she was given, said Ms Forbes, was “cottage work”, less attractive work paid at a lower rate. The clear inference was that she was allocated this work because she had made the complaint.
97Ms Forbes undertook an analysis of the work hours and sites, both before and after the complaint.[51] The analysis revealed Mrs Osmond worked an average of thirty hours per week at the time she fractured her ankle compared to significantly greater hours prior to 28 March 2009.[52]
[51]See Plaintiff’s submissions, paragraph [41(xii)], page 15
[52]See Exhibits “B” and “R”
98Further, Ms Forbes submitted that while working at Romsey and South Yarra, Mrs Osmond had no access to a relief worker and was required to stand. This was in breach of the training manual.[53] Further, she was left in charge of sites when not properly qualified, and was threatened with being sacked when she complained.
[53]Exhibit “A”
Analysis
99I was impressed with the evidence of Mr McRedmond. I prefer his evidence to the extent there is a conflict with that of Mrs Osmond. I found him an impressive witness, giving measured and considered evidence. He has since left employment with HTC and established a separate company. I did not detect any attempt to protect the interests of HTC. In contrast, as already stated, I have reservations about the evidence of Mrs Osmond.
100I accept the evidence of Mr McRedmond that there were two reasons why Mrs Osmond was not allocated work at the Sugar Loaf site. One was that the company was concerned to ensure she had no further contact with Mr Urquhart and, secondly, because there was a general reduction in the number of workers required at Sugarloaf, coinciding with Easter break.[54] I accept his evidence that he did not discriminate with the work he allocated to Mrs Osmond because of her complaint. I accept this was a requirement laid down by one of the union officials present at the time.[55]
[54]T546
[55]T552
101I reject the contention of Ms Forbes that Mrs Osmond ought to have been treated more favourably, particularly as she was clearly distressed during and after the making of the complaint. While she was undoubtedly distressed in the meetings with Mr McRedmond and others as to what had occurred, there was no further complaint about distress or other psychological symptoms to anyone at HTC afterwards. In fact, there was little, if any, complaint to her general practitioner until a considerably later time. While she did present a medical certificate, it described only a “medical condition” rather than any specific reference to psychological distress. The claim form for psychological injury was not submitted until 26 November 2009.[56]
[56]Exhibit 1
102I accept the evidence of Mr McRedmond that while he could not recall having a discussion with Mrs Osmond when she complained about Mr Smithwick’s comments, he said he would not have threatened her with termination for failing to stand. I further accept his evidence[57] that he would not have given any indication to her that she had an entitlement to full-time work at any particular project, including Sugar Loaf. I accept, further, that she was not singled out for any detrimental treatment.
[57]T515
103In relation to the claim that she was not provided with a relieving co-worker, that issue was not specifically addressed by Mr McRedmond in his evidence. The Traffic Control Manual provided to Mrs Osmond[58] does make reference to a worker on duty being relieved every two hours.[59] Even if it was the case that Mrs Osmond was not relieved, I am not satisfied that the reason for that was because she had made a complaint about Mr Urquhart. It may have been, due to the nature of the work, that there were occasions that she was not relieved. To the extent that that failure constituted a breach of the employer’s duty of care, I am not satisfied that it was foreseeable that, for that reason, Mrs Osmond would go on to suffer a Major Depressive Disorder.
[58]Exhibit 1
[59]Exhibit 1
104In these circumstances, I am not satisfied that there was any breach of the employer’s duty by discriminating against Mrs Osmond after she made the complaint, or because of it. I am not satisfied, the onus being upon the plaintiff, there was any breach of duty by the employer in relation to the post-complaint work.
Negligence – the investigation
The evidence
105Mrs Osmond gave evidence that she made a complaint of Mr Urquhart’s behaviour to Mr McRedmond on Monday, 30 March 2009. She said she attempted to contact Mr McRedmond by telephone, but was unable to reach him. She then called Mr Jeff Edwards, a union representative, who she had known outside of work through her husband. Mrs Osmond said that following her telephone conversation with Mr Edwards, she was contacted by Mr McRedmond. She said she had a brief conversation with him about Mr Urquhart’s behaviour and she was very upset. He told her he would speak to Mr Urquhart. Later that afternoon, Mrs Osmond said she received a text message about a work shift for the Tuesday. She originally said “yes”, but then sent a further text message response later, saying “no”. She received a further text message from Mr McRedmond asking her to come in for a meeting the following day, Tuesday, 31 March 2009 at 10.30am, requesting that she bring her husband. She said she would attend the meeting. She accepted, in cross-examination, Mr McRedmond could not have acted any more speedily in arranging the meeting.
144The final issue is as to whether appropriate medical, psychological or general support was given to Mrs Osmond when she made the complaint. In my view, while there was some support offered, particularly with the union representatives, and the suggestion that Mrs Osmond bring her husband to the meeting, the offer of support did not go far enough. I accept Mr McRedmond was not aware whether or not Mrs Osmond had sought medical treatment. She was upset during the investigation and interview process. In my view, it ought to have been made clear to her that she should seek treatment from a general practitioner or a psychologist, or some other support person, to assist her in dealing with the issues and obtaining any necessary treatment. Further, someone ought to have been appointed from within HTC, or within the union, preferably a female, to provide general support to Mrs Osmond. While her son did work for HTC, she was a relatively new employee and, with allegations of this nature, she might well feel isolated and unable to properly voice her concerns. She would have been assisted by the appointment of a support person to whom she could go, confidentially, and express any concerns or discuss any issues. This would have assisted Mrs Osmond in coming to the conclusion that her complaints were being properly investigated.
145In summary, there were several shortcomings in the investigation process. The investigation was not brought to any conclusion and, so far as Mrs Osmond was concerned, was left unresolved. Further, there ought to have been more steps taken with Mr Urquhart, and any other persons interviewed, to ensure the complaint was kept confidential, albeit, allowing Mr Urquhart to obtain the testimonials which he sought. Finally, further and better steps ought to have been taken to provide support to Mrs Osmond, including ensuring that she received adequate medical and psychological treatment, and availing her of a support person, either within or without HTC, to whom she could have access.
Was there a breach of the duty of care?
Analysis
146 In determining whether there was a breach of the duty of care, it is necessary to consider the surrounding circumstances which existed around the time of the investigation. HTC was on notice of the complaint of the sexual conduct by Mr Urquhart and as such it was reasonably foreseeable an employee in Mrs Osmond’s position could suffer significant psychiatric injury. The conduct was inappropriate, non-consensual, and occurred in relatively remote rural areas.
147 However, as I have found, HTC was not vicariously liable for the actions of Mr Urquhart. It was not that conduct which represented the breach of the employer’s duty. The conduct which I have determined could give rise to a breach of duty was the failure of various aspects of the investigation process. It is that failure which must be examined.
148 To determine whether there was a breach of the duty of care, it is necessary to assess the reasonableness of HTC’s response to the allegations of sexual conduct and the reasonably foreseeable risk of psychiatric injury to the plaintiff. As was said in New South Wales v Fahy,[70] an examination of whether an employer has acted reasonably in the circumstances “requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury”.[71]
[70][2007] 232 CLR 486
[71](Supra) at paragraph [57]
149 Further, in Hegarty v Queensland Ambulance Service,[72] the obligation on an employer to take reasonable care for the safety of its employees does not extend to “absolute and unremitting solicitude for an employee's mental health …”.[73]
[72][2007] QCA 366
[73](Supra) at paragraph [47]
150 In Box Hill Institute of TAFE v Johnson,[74] J Forrest J said:
“First, in determining what is a reasonable response to a risk, one cannot rely too heavily on hindsight. The fact that a foreseeable risk has eventuated does not bespeak a lack of an adequate response. The reasonableness of a response must be evaluated in the context of the identified risk as it existed immediately prior to the subject injury.
Second, it may be that notwithstanding the risk and availability of remedial measures, an employer acts reasonably by taking no steps. Underpinning the analysis is a determination of what is reasonable in all the circumstances, not just the ticking of a number of boxes resulting in the conclusion that the employer has acted reasonably or unreasonably.”[75]
[74](Supra)
[75](Supra) at paragraphs [426]-[427]
151 The positive, appropriate steps taken by HTC after the complaint was made included acting promptly and offering Mrs Osmond the opportunity to clearly state what she was complaining about, without feeling uncomfortable for doing so. This was done in circumstances where she had support of her union, and had been offered the support of her husband, although she determined not to have him attend. Mrs Osmond was asked what she sought from the investigation. She said she was not to work with Mr Urquhart again, and she wanted him to apologise. The first request was granted, although the apology could not be obtained. She was assured she would not be discriminated against, and I am satisfied she was not. HTC then sought the response by Mr Urquhart with the prospect of a further meeting, which did not occur.
152 On the other hand, the investigation was not brought to conclusion; some further steps ought to have been taken to attempt to keep the allegations confidential, and a support person was not provided from within or without the organisation.
153 Weighing in the balance what steps were taken, and those which were not, or were not properly taken, I am not satisfied the defendant breached its duty of care to Mrs Osmond. The failures in the process which I have identified were relatively minor. It is not appropriate, as J Forrest J explained, to tick a number of boxes to determine whether every aspect of the investigation was properly conducted. It is, rather, appropriate to consider the response by HTC to the risk of psychiatric injury, as a whole, in the circumstances that prevailed at the time, in the hands of a reasonable employer. Notwithstanding some shortcomings, overall I am satisfied the employer acted reasonably and appropriately in undertaking the investigations. No breach of duty is proven.
154 A range of treating and consultant medical reports were tendered in evidence.[76] While the reports set out the psychological symptoms of which Mrs Osmond complains, and many conclude that she suffers a Major Depressive Disorder, and while some reports refer generally to her “employment” being a cause of her condition, not one practitioner provides an opinion as to whether the failures in the investigation process were a cause of her psychological injury. The history obtained focussed upon the sexual conduct of Mr Urquhart, although there is some reference to her concern that co-employees knew of the complaint. It makes the issue of breach of duty more difficult to identify, given there is no practitioner who specifically causatively relates the failures in the investigation process as being a cause of psychiatric injury.
[76]Exhibits “E”, “F”, “H”, “J”, “K”, “L”, “M”, “N”, “O”, 6, 7 and 8
Conclusions
155 I am satisfied that the more significant aspects of the sexual conduct alleged against Mr Urquhart are made out. However, I am not satisfied that HTC is vicariously liable for Mr Urquhart’s conduct.
156 I am not satisfied that Mrs Osmond was discriminated against in the workforce as a result of her making a complaint. The reduction in the amount of work she was able to undertake later, and the nature of that work, were due to factors other than her being victimised for making a complaint.
157 While there were some deficiencies in the investigation, they were not such as to constitute a breach of the employer’s duty of care.
158 In those circumstances, the plaintiff’s case fails. I shall make consequent orders after hearing from the parties.
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