Oyston v St Patrick's College (No 2)
[2013] NSWCA 310
•23 September 2013
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Oyston v St Patrick's College (No 2) [2013] NSWCA 310 Hearing dates: 29, 30 July 2013 Decision date: 23 September 2013 Before: Macfarlan JA at [1];
Barrett JA at [2];
Tobias AJA at [3].Decision: 1. Appeal allowed in part.
2. Cross-appeal dismissed.
3. Set aside the judgment in favour of the appellant in the sum of $124,938.48 given and entered on 17 October 2011 and in lieu thereof enter judgment for the appellant in the amount to be determined by the parties in accordance with these reasons and conveyed to the Court within 7 days of the date of these orders.
4. The respondent to pay the appellant's costs of the trial before Schmidt J and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - negligence - appellant bullied and harassed by other pupils at high school -whether psychological harm caused by school's failure adequately to address bullying behaviour - whether primary judge's award of damages adequate Legislation Cited: Civil Liability Act 2002, ss 5D, 5E, 15, 16 Cases Cited: Eire Contractors Pty Ltd v O'Brien [2012] NSWCA 400
Hunt and Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; 296 ALR 3; 87 ALJR 505
Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239
Kuhl v Zurich Financial Services Ltd [2011] HCA 11; 243 CLR 361
Marsland v Andjelic (1993) 31 NSWLR 162
Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182
Woolworths Limited v Strong [2010] NSWCA 282Category: Principal judgment Parties: Jazmine Oyston (Appellant/Cross-Respondent)
St Patrick's College (Respondent/Cross-Appellant)Representation: Counsel:
H Marshall SC and G Smith (Appellant/Cross-Respondent)
R Sheldon SC and S Glascott (Respondent/Cross-Appellant)
Solicitors:
Lough & Wells Lawyers (Appellant/Cross-Respondent)
Makinson & d'Apice (Respondent/Cross-Appellant)
File Number(s): 2012/16667 Decision under appeal
- Citation:
- Oyston v St Patrick's College [2011] NSWSC 269
Oyston v St Patrick's College [2011] NSWSC 826 (costs)- Before:
- Schmidt J
- File Number(s):
- 2007/265225
Judgment
MACFARLAN JA: I agree with Tobias AJA.
BARRETT JA: I agree with Tobias AJA.
TOBIAS AJA: On 27 May 2013 the Court delivered judgment in this matter on the issue of the College's breach of duty of care to the appellant: Oyston v St Patrick's College [2013] NSWCA 135 (the May judgment or MJ). The breach of duty found by the Court was the College's failure, particularly during 2004 when the appellant was in Year 9, to take reasonable steps to bring the bullying of the appellant by other students to an end.
The Court's conclusions with respect to breach are to be found at [147]-[157] of the May judgment and may be summarised as follows:
(a) The College, through Mrs Ibbett (the Year 9 Coordinator, who was responsible for investigating any reports of bullying) recognised that bullying could affect the well-being of a student and could occasion a depressive condition in an adolescent girl already suffering from anxiety, as was the appellant to Mrs Ibbett's knowledge;
(b) The College was well aware that bullying was taking place and of the impact of bullying upon individual students, which it had recognised by putting in place an anti-bullying policy ("the policy") which required action to be taken in response to any complaints about bullying;
(c) Not only were complaints of bullying to be investigated, but a specific procedure was laid down in the policy depending upon whether the bullying by a particular perpetrator was the first, second or third incident of such conduct by that student;
(d) Particularly during 2004, the appellant was regularly, if not relentlessly, bullied, in particular by JP and LM;
(e) The College was aware that the appellant claimed that she was being bullied at least from 6 February 2004. The evidence disclosed a number of particular incidents of bullying during 2004, particularly in April, May, November and December, all of which put the College on notice that bullying of the appellant was continuing;
(f) The College was obligated in performing its duty of care towards the appellant to take reasonable steps to ensure that she was protected from bullying, including taking reasonable steps to ascertain the identity of the perpetrators and to take such action as was reasonable to prevent repetition by those persons of such conduct. In particular, Mrs Ibbett was well aware that bullying was a serious ongoing problem in the school, to eradicate which it was necessary to take such active steps as the College's policy contemplated;
(g) The College was aware from February 2004 that the appellant was vulnerable, that she suffered from anxiety and panic attacks and, therefore, that she was likely to be susceptible to psychological harm if bullied;
(h) The steps taken by Mrs Ibbett during 2004 did not provide a reasonable response to the not insignificant risk of harm to students such as the appellant if bullying of them continued. It was insufficient for the College merely to request teachers to keep an eye out for bullying once a complaint of bullying had been received. Once such a complaint was received it required investigation and, if substantiated, action against the perpetrator. In this context, the evidence established that the appellant was regularly bullied by JP and LM and, to a lesser extent, by AM. However, no reasonable steps were taken by Mrs Ibbett to investigate the appellant's allegations of bullying by those students and to act on them if she was satisfied that they were justified;
(i) Accordingly, the primary judge's conclusion that the appellant was subject to ongoing bullying in 2004, that the College was aware that this was so, and that it failed to take reasonable steps to bring that conduct to an end, was amply justified by the evidence.
Because of time limitations the first hearing of this appeal dealt only with the issue of breach of duty. That left the issues of causation and damages which are the subject of the present judgment. It is appropriate to deal first with the issue of causation.
The Primary Judge's Findings on Causation
The primary judge dealt with this issue at [315]-[331] of her reasons. Appropriately, she recorded ss 5D and 5E of the Civil Liability Act 2002 (NSW) and cited [44]-[51] from the judgment of Hodgson JA in Woolworths Limited v Strong [2010] NSWCA 282 (at the time of the primary judge's judgment the appeal to the High Court in Strong had not yet been heard). At [318] her Honour determined that the question to be answered in the present case on the issue of causation was whether it had been shown that it was more probable than not that the appellant would not have suffered a psychological injury if the College had exercised reasonable care in relation to the risk of bullying to the minimum extent required for the performance of its duty to take such care.
At [320] her Honour held that it was the College's negligence in not dealing with the ongoing deliberate acts of bullying by certain students in the manner its own policies envisaged which resulted in the appellant's injuries. Accordingly, those injuries were the direct result of the College's failure to take the very steps that it had devised in its policy to prevent such injury being inflicted upon one student by another.
The primary judge acknowledged (at [321]) that the expert medical witnesses (Associate Professor Phillips for the appellant and Dr Apler for the College) were of a common view as to Ms Oyston's vulnerability to psychological injury and that what she suffered was contributed to by her experiences at home and her parents' inability to effectively deal with the ongoing bullying to which she was subjected at school. The other major contributing factor was the misbehaviour of other students which, in her Honour's assessment of the evidence, was a significant cause of the appellant's injury.
As the College's submissions on the issue of causation were to a large extent based upon the absence of any record in the counselling notes referred to in the primary judge's reasons of the appellant complaining to the counsellor about being bullied, it is appropriate to record her Honour's finding with respect to this issue:
322 Ms Oyston may not herself have been very articulate about her situation at times. She plainly had reservations about whom she complained to and became discouraged from making complaints, by the lack of effective response which she received when she did complain. That it was difficult behaviour to continue complaining about may be accepted, given that the bullying came to encompass even her collapses and removal from the school for treatment, her counselling and her seeing Mrs Ibbett. What she described as going on in a relentless way in 2004 and 2005 was not high level, violent bullying, but a type of bullying behaviour described by the experts as behaviour typical of adolescent girls. This was behaviour which the College recognised it had to look out for and deal with, but in Ms Oyston's case it failed to do so.
Her Honour then considered a number of incidents during which the appellant alleged that she was bullied, such as the "rumour incident" (detailed in the May judgment at [70]-[72]). At [323] she found that the appellant's behaviour on that occasion was a form of retaliation, this being a reaction to which some victims of bullying resort.
So far as the appellant's infliction of self-harm was concerned, the Deputy Principal of the College, Mrs Carroll-Fajarda, regarded this as a response to the appellant's having herself been caught misbehaving rather than as being connected to bullying directed at her. However, as noted at [74] of the May judgment, in cross-examination Mrs Carroll-Fajarda acknowledged that self-harm is one of the indicia of bullying and that, as a matter of logic, there must have been a connection between the appellant's self-harm and the intimidation which she alleged she had experienced.
At [324] her Honour found that the fact that the perpetrators were the subject of complaints by others of bullying supported the conclusion that the appellant was also a victim of such behaviour. Yet notwithstanding the emergence at the end of 2004 of suicidal ideation on the part of the appellant, no concrete steps were taken to bring the bullying to an end. Her Honour considered that this dissuaded the appellant from seeking help in 2005.
The primary judge acknowledged (at [325]) that the appellant had had a difficult home life. Her mother had been seriously injured in a car accident and the appellant was concerned about her. Both her mother and grandmother were known to have suffered from panic attacks and she was at times subjected to physical abuse by her brother. This was known to the College. Nevertheless, even taking these matters into account, her Honour held (at [328]) that the College's failure to deal adequately with the ongoing problems the appellant was having at school resulted in her injury.
Her Honour's conclusion with respect to the issue of causation was stated in the following terms:
330 That Ms Oyston may have been particularly vulnerable to psychological injury from bullying at school may be accepted, but that is not a basis on which it may be concluded that causation has not been established. I am satisfied that the evidence did not show that the injury which she sustained, would have occurred in any event, had the bullying not occurred or had it been addressed.
331 Even if the injury which she suffered was disproportionate to what might be expected to have result [sic] from the bullying to which she was subjected at school, I am satisfied on the evidence that is not a basis for concluding that the College was not responsible for the harm which resulted from the bullying to which she was then subjected. I am satisfied on the evidence that the necessary causation has been established. But for the bulling [sic] to which she was subjected at school, she would not have suffered the injury which she sustained. The scope of the College's liability extended to the harm which was caused.
Whatever one might think about the validity of the last sentence of [330] as the relevant test, in my view her Honour stated the correct test in the second-last sentence of [331]. The appellant was required to prove that it was more probable than not that but for the failure of the College to deal with the students who were bullying her, she would not have suffered the psychological injury which was the subject of the medical evidence. It is appropriate now to turn to that evidence.
The Medical Evidence
The Report of Mr Benad
The appellant was seen by Mr Mark Benad, Psychologist, between 16 March 2005 and 6 June 2007. In his report dated 6 June 2008 Mr Benad, who was not required for cross-examination, stated first, that he accepted that the appellant suffered reactive psychological difficulties associated with the alleged bullying; secondly, that apart from the alleged harassment at school, he did not identify any other factors during the course of his contact with the appellant that would account for her difficulties; and thirdly, that to the best of his clinical judgment he had formed the opinion that the appellant likely suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood as a consequence of the bullying behaviour. He stated that by definition, an Adjustment Disorder is the development of clinically significant emotional and/or behavioural symptoms in response to an identifiable psychosocial stressor. The stressor in the appellant's case was the bullying behaviour which, at the time he saw her, had ceased. Although Mr Benad was not cross-examined, the weakness of his conclusion with respect to the cause of the appellant's symptoms was that he was unaware of the stressors present in her family environment.
The Reports of Associate Professor Phillips
Associate Professor Phillips first saw the appellant on 3 June 2008 and provided, relevantly, reports dated 12 August 2008, 16 December 2008, 27 May 2009 and 15 February 2010. The appellant related a history of bullying to Associate Professor Phillips generally consistent with her evidence. He regarded her as a straightforward historian. Associate Professor Phillips was provided with what he referred to as all available school documents and he was aware of her domestic problems.
As at the date of Associate Professor Phillips' report of 12 August 2008, the appellant was 18 years old and he regarded her as relatively free of major psychological problems. However, he considered that she had experienced psychological/behavioural problems which, in greater part, were triggered by the bullying behaviour of other students at the College. He stated that he had no doubt that the appellant was deeply offended and psychologically traumatised by being called bitch, slut, dog, and drama queen and, additionally, that she was distressed and rendered anxious by the numerous incidents when she was pushed around by fellow students or pinned against a wall or when attempts were made to push her down stairs, all incidents which the primary judge found had occurred. He recorded that, according to the appellant, the bullying was at its worst during Year 9, when it became relentless (each day, every day of the week). As already noted, her Honour did not find, and nor did this Court, that the bullying of the appellant was either relentless or a daily occurrence, albeit that it was regular.
Associate Professor Phillips opined, as did Mr Benad when the appellant was being treated by him, that as of August 2008 the appellant suffered from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, which was a diagnosable psychiatric disorder, although of a lesser intensity than a major depressive disorder. Although she had made progress, he considered that she remained currently at risk of the further development of a psychiatric disorder, particularly at times of future stress. He concluded that there was a strong causal link between the stressors faced by the appellant at the College during Years 7 and 8 and the triggering of her psychological problems. However, he accepted that she had faced a second stressor in her relationship with her disabled brother, which would have added to some extent to her psychopathology overall.
In his report of 16 December 2008, Associate Professor Phillips opined that it was highly likely that if the appellant was to suffer a further major depressive disorder in the future, her symptoms would be severe and potentially life-threatening, particularly if there was no immediate assertive treatment. If she were to develop further episodes of major depressive disorder and those episodes were long and severe, then she would be expected to have difficulties with interpersonal relationships and a reduced capacity to find or hold a position in the open workforce.
However, when giving evidence in conclave with Dr Apler, Associate Professor Phillips seemed to resile from his former view as to the appellant's future ability to cope with major stressors, agreeing with Dr Apler that there was evidence of considerable resiliance on her part and that at most times she would "be able to cope". He acknowledged that it was a question of weighing resiliance against stressors and, being rather more cautious about her future than Dr Apler, he predicted that there would be problems at times, which might be episodic, lasting weeks to months, rather than being chronic and lasting for years. Although in his 16 December 2008 report Associate Professor Phillips opined that the appellant had a significantly reduced capacity to hold normal working hours in the open work force at that time, and more so if she were again to suffer a major depressive disorder, her subsequent work history would not entirely support that prognosis. It is convenient to mention these matters at this point as they are relevant to the appellant's appeal on the issue of damages.
In his next report of 27 May 2009, Associate Professor Phillips opined that the appellant would more likely than not suffer further episodes of major depressive disorder. Her psychological resiliance would have been eroded during the period in which she faced sustained bullying at the College, making her susceptible to the onset of psychiatric disorder. That vulnerability was broadly in the domain of depression spectrum disorder. He considered that the appellant was likely to react particularly badly to specific forms of stress in the future. The most dangerous stressor, given her known history and pathology, would be any future situation in which she was bullied, belittled or criticised in any excessive manner. If she was placed in a situation where she was relatively powerless, this would trigger traumatic memories of her adverse experiences at school. Furthermore, the appellant was more likely than not to find herself in situations where bullying or harrassment might occur, such as in the workplace. It could also be said with almost complete certainty that the appellant would face situations of loss in the future.
In his report of 15 February 2010, Associate Professor Phillips responded to a report of Dr Apler of 10 October 2009 (referred to below) in which Dr Apler had referred, in particular, to a strong family history of panic and anxiety symptoms on the maternal side of the family. Reference was also made to the appellant having a difficult relationship with her brother and concern for her mother's health. He noted that Dr Apler assessed the appellant at the time of his consultation with her as being normal and that he disagreed with Associate Professor Phillips' observation that the appellant was suffering from an adjustment disorder at the time when he assessed her. He did not, on examination, find her to have symptoms consistent with such a disorder.
Associate Professor Phillips then opined that both he and Dr Apler recognised that the appellant had variable anxiety symptoms. Both recognised, according to Associate Professor Phillips, that the appellant had become isolated in her behaviour and that she was in conflict with her peers. Both recognised that the appellant had matured substantially in recent years and was making a commendable effort to get on with her life. Notwithstanding the difference in the interpretation of the appellant's symptoms between Dr Apler and Associate Professor Phillips, the latter maintained that she had highly significant psychological symptoms spanning a number of important formative years. He doubted that many of his colleagues would dispute the fact that a person who has had a significant disturbance of a psychological nature during his or her adolescent years will be rendered vulnerable to psychological disturbance at times of stress in adult life. As will appear, this was an opinion adopted by the primary judge.
Significantly, Associate Professor Phillips noted that in his report, Dr Apler appeared to have downplayed the importance of bullying whilst the appellant was attending the College. Associate Professor Phillips continued:
Whilst I do not negate the importance of the other stressors which my colleague regarded as being important at that point in time, I merely highlight that bullying by peers is a particularly pernicious and aversive stress for the person concerned. It will be necessary to maintain proper perspective and to rate bullying at that time as being the principal stressor, but certainly not the sole stressor.
The Report of Dr Apler
Dr Apler examined the appellant on behalf of the College on 5 August 2009. In his report of 10 October 2009 he recorded a lengthy history based on his review of documents provided to him by the College, which included detailed reference to the "rumour incident", in which he noted that the appellant's "provocative behaviour brought her into conflict with [her] peers". On the basis of his review of the documentary material and his interview with the appellant, Dr Apler opined that she had a strong family history of panic and anxiety symptoms affecting her mother and grandmother, which predisposed her to the development of those symptoms. He considered that her anxiety symptoms were related to her constitution and family history and were not related to the events that took place at the College. Although he found that there was no evidence that these symptoms related to any conflict with her peers in Year 7 at the College, he acknowledged that the nature of her symptoms in Year 9 (2004) was not entirely clear and that he was unable to provide a definite diagnosis of her symptoms during that period. He stated the following with respect to descriptions of the appellant in Years 9 and 10 as anxious, depressed and panicky:
She felt stressed at home and at school at that time, and this would have contributed to her symptoms. Justin, her brother, behaved aggressively towards [her], and her relationship with her mother was difficult, with her mother not acknowledging her daughter's distress. At school she felt isolated, and was in conflict with peers, some of which was brought on by her own behaviour. She would have felt upset by her conflicts at school, although I also note that her symptoms sometimes preceded these conflicts.
In my view, a fair reading of Dr Apler's report bears out Associate Professor Phillips' observation in his report of 15 February 2010 that Dr Apler appeared to have downplayed the importance of bullying whilst the appellant was attending the College.
The Conference Minutes
Tendered in evidence were minutes of a conference held on 14 May 2010 between Dr Apler and Associate Professor Phillips. They were each asked a number of questions by each party, their responses to which were recorded in the minutes. Relevantly, in answer to the College's question as to whether the events that occurred at the College described by the appellant in her evidentiary statement, and only those events, would lead a person of normal fortitude to suffer either a recognised psychiatric illness or mental distress, Dr Apler responded that a normal person would not usually develop a psychiatric illness as a result of those events, whereas Associate Professor Phillips stated that recurrent bullying over a period of time was likely to lead a person to develop a recognisable psychiatric illness. Both experts agreed that such events would lead a person of normal fortitude to suffer mental distress. Of course, the appellant was not such a person.
Question 9(c) posed by the College was as follows: if the appellant had, but no longer did, suffer from a psychiatric or a psychological condition, what were the causes or material contributing factors to the development of that condition? Dr Apler considered that the question was irrelevant, as he was of the view that the appellant had not suffered from a psychiatric or psychological condition at any relevant time. On the other hand, Associate Professor Phillips responded to the effect that the history of bullying as related by the appellant was a materially contributing factor to the development of her major depressive disorder and subsequently the development of her adjustment disorder (chronic type).
The experts also responded to a list of questions posed on behalf of the appellant, Question 4 of which asked whether the events that occurred at the College described by the appellant in her evidentiary statement, other material previously provided and the history taken would lead a person with the appellant's susceptibility or predisposition (if any) to suffer either a recognised psychiatric illness or mental distress. Each expert answered in the affirmative with respect to mental distress. With respect to that part of the question that related to a recognised psychiatric illness, Dr Apler responded that the events described in the appellant's evidentiary statement might contribute to the development of a psychiatric illness in a person with the appellant's susceptibility or predisposition. Associate Professor Phillips answered that part of the question in the affirmative, stating that he did so on the assumption that the word "lead" in the question equated to "contribute to".
The appellant's Question 8 sought the opinion of the experts, relevantly, as to her prognosis in terms of the likelihood, on the balance of probabilities, of any relapse of psychological or psychiatric conditions being triggered by likely future events. Dr Apler responded that her psychological response to future events was uncertain, whereas Associate Professor Phillips responded that it was moderately likely that the appellant would suffer a relapse, particularly if she faced any substantive future stressor.
The Conclave Evidence
The two medical experts also gave evidence before the primary judge in conclave which was of particular relevance to the likely response of the appellant in the future to significant stressors. However, other parts of their joint evidence were relevant to the issue of damages and it is convenient to refer to them at this point. One area where there appeared to be disagreement between the experts related to the submission made repeatedly by the College on the issue of causation to the effect that nowhere in the notes of the College counsellor did there appear any complaint by the appellant that she had been bullied or any opinion by the counsellor that bullying was the trigger of the various anxiety attacks that caused her to be referred to that counsellor.
Dr Apler's view was that a school counsellor was usually a trained medical professional whose job was to look after a child's emotional needs and to understand problems from a child's point of view. In a school environment a child could turn to the school counsellor and talk about his or her problems, and bullying was one particular issue
that in the last few years especially has been highlighted as important and needing to be addressed at school, and it is something that school counsellors do ask about and children do talk about.
This evidence was given in June 2010, roughly six years after the events in question. However, Dr Apler also expressed the view that the appellant and the counsellors had had an extensive relationship over some years.
Associate Professor Phillips expressed the view that young people who have been bullied very often have a major problem in speaking about it to adults whom they perceive to be powerful, be they teachers, doctors or counsellors. They fear that if they disclose that they have been bullied, there will be disbelief on the part of the powerful person or the people who do the bullying will hear about it and there will be retribution. Associate Professor Phillips noted that the two things that adolescents often failed to talk about in his clinic were bullying and sexual abuse.
When asked to respond to Dr Apler's reliance upon the counsellor's notes not containing any reference to bullying, Associate Professor Phillips stated that he stood by his evidence and noted that what concerned him was that he was unable to get any sense of the actual interaction that went on between the counsellor and the appellant; nor could he get any real sense of the topics discussed simply from the counsellor's notes. However, he observed that the appellant was clearly ambivalent about attending counselling, which made him think that the relationship between the counsellor and the appellant was not as firm as one would have wished. He acknowledged that, as Dr Apler had opined, there was not much in the counselling notes which was of value in terms of evidence of disturbed mood, other than at least one or two items where the counsellor referred to the appellant being acutely suicidal. He continued:
I would just throw in a caution here that she may have been telling the counsellor that she was much better than she was, in the hope of the counselling sessions ending. I can't say that with certainty but that's not uncommon with young people. If they want to leave the counselling session, they will say everything is fine.
In the hearing on the issue of breach of duty, the failure of the counsellor's notes to refer to any complaint by the appellant that she was being bullied was heavily relied upon as strong evidence that either she had not been bullied or, if she had, it had not caused her any concern. That argument was rejected in the May judgment. Nevertheless, it was repeated in the College's appeal on the issue of causation. It should meet the same fate.
The medical experts also reiterated their views on the relationship between the appellant's symptoms and her family situation. Dr Apler was of the opinion that the appellant was "an anxious girl who was quite vulnerable and quite troubled", symptoms to which a strong family history of anxiety predisposed her. Although the appellant had an added vulnerability due to her difficult family situation, which Dr Apler considered to be very significant, the difficulties that she experienced at the College were also relevant, depending upon the Court's assessment of the extent of any adverse interactions with her peers that had occurred. Given the findings in the May judgment, even on the basis of Dr Apler's evidence those "adverse interactions with her peers" played a significant part in bringing about the appellant's condition.
The experts spent a good deal of time on the issue of the appellant's prognosis and, in particular, her ability to deal with future stressors. Associate Professor Phillips was firm in his view that because of the incidents that had occurred at the College at a critical point in her developmental pathway, the appellant had been left quite vulnerable to further stressors in life and, in particular, stressors where she faced any degree of harassment. He also considered that she was highly sensitive to criticism. He then summarised his opinion in the following terms:
She, on my view, experienced a fairly severe depressive disorder in the years she was at St Patrick's College, that's on the history that I have. Generally the past is a fair predictor for the future in
psychological matters and if she has had a moderately severe depressive disorder minimally and if she is faced at some time in the future, or several times in the future, with significant stressors it's more likely than not that she would have an illness of a similar type and broadly similar magnitude.
On the other hand, Dr Apler stated that, given her responses to a range of adversities after she left school, his overall impression was that the appellant had become more easily able to tolerate conflict and tension in her relationships.
On the question as to the likelihood of the appellant experiencing further episodes of moderately severe depression at times of stress, Associate Professor Phillips expressed the view that, although it was difficult to tie oneself to a percentage, it was more probable than not that she would do so. He added:
I doubt that it would be so probable that the seventy-five per cent beyond threshold would be reached but I would think that there is every reasonable prospect of her developing future depression at times of stress in a percentage range 60 to 75.
When Dr Apler was asked to express a view on this issue, he opined that the risk of the appellant developing a major depressive disorder in the future was in the order of five per cent (the average in the general adult population), although he acknowledged that her risk was perhaps increased on account of her family history. In this respect, he placed significant reliance, understandably, on the fact that in 2007 the appellant had experienced what was accepted to have been a significant traumatic event, but had apparently recovered reasonably well.
On the other hand, Associate Professor Phillips was of the view that such a traumatic event erodes psychological resilience and, although it does not necessarily give rise to a psychiatric disorder, it increases a person's vulnerability to such a condition in the future. In response, Dr Apler referred to Associate Professor Phillips' report, where the traumatic event in question was discussed and the appellant stated that "as much as this hurt me it has made me stronger in some ways". Dr Apler did not agree that such an experience erodes resilience and makes the person more vulnerable to psychological injury.
The Primary Judge's Consideration of the Medical Evidence
The primary judge dealt with the medical evidence at [258]-[294] of her reasons. At [265] she noted that evidence was called concurrently from Associate Professor Phillips and Dr Apler, and that the former had seen the appellant on one occasion in 2008, whereas the latter had seen her on one occasion in 2009. Her Honour observed that they disagreed as to the appellant's condition whilst at the College, whether she had ever suffered any psychological illness, her mental state on their examination of her and her prognosis.
At [266]-[269] her Honour summarised the evidence of Associate Professor Phillips. At [267] she observed that his August 2008 report was based on an account which the appellant had given him which was largely consistent with her evidence at trial. She noted his view that the appellant had developed major depressive disorder adolescent type in Years 8 and 9. Although she began to make progress after she left the College, the appellant did not become symptom-free and still suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood, even if she rated her symptoms at a low level. Her Honour recorded that Associate Professor Phillips considered that the appellant remained at risk of developing a psychiatric disorder at times of future stress.
Her Honour summarised the evidence of Dr Apler at [271]-[276]. She noted that Dr Apler's view was that the appellant was predisposed to develop anxiety and panic attacks by a strong family history on her mother's side. At [272] she observed that Dr Apler, noting Mrs Ibbett's communication to staff in November 2004 (presumably a reference to the memo referred to at [91] of the May judgment), had stated that school staff were careful to ensure that the appellant was not bullied at school. At [274] her Honour noted Dr Apler's opinion that there was no evidence that the appellant's symptoms were related to conflict with her peers, although no definite diagnosis could be provided for her symptoms in Year 9 (in 2004).
At [276] her Honour noted that Dr Apler disagreed with Associate Professor Phillips' conclusions that the appellant had a major depressive disorder adolescent type in Years 8 and 9 and that she was currently affected by an adjustment disorder.
Finally, at [277]-[290] her Honour dealt with the joint report of the experts and their concurrent evidence, which I have already set out in some detail. Suffice it to say that her Honour noted that the experts agreed that the appellant was susceptible or predisposed to suffering from a recognised psychiatric illness or other psychological disturbance and that, although Dr Apler was of the view that a normal person would not usually develop a psychological injury from the events at school which the appellant described, nevertheless, in the case of a person with her susceptibility or predisposition, such events might contribute to the development of a psychiatric illness. Her Honour noted that Associate Professor Phillips was of the view that recurrent bullying over time was likely to lead a person to develop a recognisable psychiatric injury, and both medical experts agreed that such events could increase mental distress.
Having considered the views of the medical experts, her Honour set out her conclusions as to the nature and extent of the psychiatric injury suffered by the appellant at [291]-[296] of her reasons. Her findings may be summarised as follows:
(a) In 2004 and 2005 the appellant suffered a psychiatric injury, being an Adjustment Disorder with Mixed Anxiety and Depressed Mood;
(b) She was successfully treated for this condition and had recovered by 2007, by which time she was not suffering from any ongoing mental illness;
(c) Dr Apler's reservations as to whether the appellant had suffered an injury while at the College were based on a view of her experiences while at the College and their consequences which had not been established on the evidence;
(d) The appellant was genetically vulnerable to the injury which she sustained and her condition in 2004 and 2005 was the result of her being subjected to a combination of stressors at home and at school, including the bullying which continued unaddressed at the College and which was a very significant contributor to that condition;
(e) Dr Apler's view to the contrary should be rejected;
(f) However, when the appellant was seen by Associate Professor Phillips in 2008 her then symptoms were not the result of the ongoing effects of her experiences at the College in 2004 and early 2005;
(g) The appellant had a resilience which had helped her to recover from the traumatic event of 2007; nevertheless, she now had an increased vulnerability to further injury as a consequence of the psychological injury to which she succumbed in 2004 and early 2005, as was the view of Associate Professor Phillips, whose evidence in this respect should be accepted;
(h) That increased vulnerability to further psychiatric injury was supported by the evidence of the appellant's history after she left the College and her evidence as to ongoing problems at the time that she gave her evidence at trial;
(i) There was no evidence that the appellant had succumbed to her underlying vulnerability to the psychiatric injury that she sustained in 2004 and early 2005 prior to 2004. The injury which she did sustain was not caused solely by the stressors in her home life, although those stressors, as well as the bullying to which she was subjected at the College, resulted in her injury.
The Primary Judge's Assessment of the Evidence of the Educational Experts
As noted at [19] of the May judgment, Dr Keith Tronc, Mr Peter McNair and, to a lesser extent, Dr Ken Rigby gave expert evidence in relation to the manner in which the College dealt with bullying. As there noted, the experts disagreed as to the effectiveness in the appellant's case of the implementation of the policy extracted at [18] of the May judgment.
As the primary judge observed at [46] of her reasons, Dr Tronc believed that it was important for early steps to be taken to deal with bullying, to control it and to stop it spreading. In his view, the longer bullying was uncontrolled, the more likely it was that harm would result. In his experience, bullies tended to test the waters, to see if there would be retaliation. They looked to the reactions of authorities, onlooker apathy and crony support. Investigation and even punishment reduced the risk of harm to victims. Mr McNair took a different approach. He was of the view that a zero tolerance approach involving mandatory sanctions would not work. What did work was thoughtful counselling, constructive culture and thoughtful intervention, which had to be explored before punishment was imposed as a last resort.
There was no agreement between these experts on the issue of the implementation by the College of the policy in the appellant's case. Mr McNair considered that the steps taken by the College were adequate; Dr Tronc considered that they were "spotty and inconsistent".
As her Honour noted at [49], Mr McNair was also firmly of the view that the best way of dealing with incidents of bullying was to strengthen the victim "by allowing the victim to find ways to understand and deal with the behaviours". Immediate compulsory counselling of perpetrators could lead to resentment against the victim. Dr Tronc disagreed with this approach. He considered that there had been repeated bullying which ought to have been dealt with in accordance with the policy.
The primary judge's findings with respect to the adequacy of the College's responses to bullying are recorded at [119] of the May judgment. To what was said there I would add her Honour's observations at [54] of her reasons that there was evidence of both active, direct bullying of the appellant and indirect bullying behaviour coming to the College's attention, both of which left the appellant isolated. Further, the College had been advised about both types of bullying and recognised that victims were sometimes driven to retaliate. Particularly in a single sex school such as the College, subtle types of bullying behaviour were prevalent (and, in many cases, constituted the behaviour about which the appellant complained), giving rise to a need for adequate monitoring.
At [56] of her reasons her Honour found that the College had to act to ensure that either the behaviour of which the appellant complained ceased or was in fact not occurring as reported. If it was occurring, then the policy designed to bring the misconduct to an end and prevent it from reoccurring had to be acted upon.
It was in this context that (at [57]) her Honour accepted the view of Dr Tronc that a failure to act in accordance with the policy which the College published to its students was likely to encourage bullying behaviour.
Thus, at [58] her Honour said:
Insisting that bullying cease, and taking steps which ensures [sic] that happens, if the conduct does not cease voluntarily, cannot, in my view be viewed as wrongly 'bullying the bully', but rather as exercising an undoubted right to insist that conduct which school bullying policies provide students are not to engage in, must cease. If such a requirement is flouted by students, schools must take steps designed to ensure that the bullying ceases. Mere counselling of a victim dealing with the consequences of ongoing bullying, will not be sufficient for a school to meet its duty of care.
The foregoing findings of the primary judge, which were relevant not only to breach but also to causation, were not challenged. In particular, it was not suggested that it was not open to her Honour to accept the views of Dr Tronc over those of Mr McNair.
The Submissions on Causation
The College's Submissions on Causation
The College initially advanced two basic propositions. First, it submitted that, when properly analysed, the steps which this Court found ought to have been taken by the College would not have changed the bullying behaviour to which the appellant was subjected by some of her fellow students. Secondly, it submitted that the evidence did not establish that the harm that the appellant had allegedly suffered was the consequence of bullying.
In relation to a number of the breaches of duty found by this Court in the May judgment, the College submitted, essentially, that nothing it could or should have done would have prevented the bullying of the appellant from continuing as it allegedly did. The detailed submissions in support of this proposition may be summarised in chronological order of events as follows:
- The appellant denied that bullying had caused her panic attack of February 2004 (MJ at [42] ff.) when at the meeting with the College Principal, her mother made reference to rude words having been spoken by JP. In the light of that fact and the appellant's previous panic attacks (in relation to which there was no suggestion of bullying) the only inference was that further discussion with her would have eliminated bullying from consideration as a trigger of that event. Furthermore, the appellant did not raise the issue of bullying in subsequent counselling sessions and the inference should be drawn that she would not have informed an investigating school officer otherwise. In any event, JP would most probably have denied bullying the appellant, and given the appellant's unwillingness to give an account of the alleged "rude words", there would have been no complaint and thus no basis for punishing JP. Thus the College's breach of duty in failing to carry out an investigation was of no consequence.
- The incident of April 2004 (MJ at [63] ff.) involved two girls who were in a different year group to the appellant and did not subsequently come to adverse attention. Moreover, contemporaneous counselling notes indicated that that event had no significance for the appellant's well-being. It followed that the failure to investigate had no bearing on subsequent events.
- Ms Barr's letter of 11 May 2004 (MJ at [68]-[69]) did not disclose any bullying. Considered in conjunction with the counselling records, the letter did not suggest that the appellant's absences from school were in any way connected with bullying. The appellant attributed the underlying causes to issues outside of the College.
- There was no basis upon which it could be found that, had further investigation been conducted following the "rumour incident" of May 2004 and associated self-harm (MJ at [70] ff.), any different explanation linking the event to bullying would have emerged. Accordingly, no further punishment would have been warranted. In any event, any concern arising from this event had subsided by 21 May 2004 and the matter had been resolved by 2 June 2004 when the appellant described herself as being "excellent and happy" (MJ at [77]). It followed that the College's breach of duty had no causal effect on the appellant's injury.
- Even if LM had been expelled following a number of bullying incidents involving the appellant and others, that action would not have prevented the appellant from being bullied by the other students who came to notice later in 2004 (see MJ at [98]). The fact that LM was leaving the school in any event would likely have tempered any warning that her expulsion might otherwise have sent to potential bullies.
- Any further investigation of the event of November 2004 (MJ at [91] ff) would have drawn from the appellant the same assurance that everything was fine which she had already given. Moreover, there was no evidence that SB bullied the appellant again, such that causation was not made out with respect to that breach of the College's duty.
- Even if further action had been taken in response to the appellant's letter of 6 December 2004 (MJ at [103] ff), given that the school year ended on 9 December 2004, that action would have been of little or no consequence so far as the causation of harm to the appellant was concerned. There was no evidence that any of the events of 2005 (MJ at [108] ff) was triggered by bullying.
- Thus it could not be shown that the appropriate punishment at each point would have yielded a different result.
In oral submissions, the College contended that the Court needed to be satisfied that, had the College taken the steps which the Court had found it ought to have taken, the bullying behaviour of a number of students, actuated by unknown motives, would have been prevented. It was submitted that it was very difficult to draw the inference that the bullying would have stopped given that, with the exception of JP and, to a lesser extent, LM, the episodes of bullying identified in the May judgment involved students who did not reoffend, or only reoffended in very different circumstances.
I interpolate that parts of the College's written submissions on causation, as well as a number of submissions advanced in oral argument, appeared to seek to re-agitate the issue of whether the appellant had been bullied at all, or, if she had, whether the College ought to have responded otherwise than as it did. It is not necessary to address these submissions given the findings on breach of duty that were made in the May judgment.
In relation to the second limb of its argument, in its written submissions the College contended that, given the state of the evidence, it was impossible to conclude that, but for the bullying to which the appellant was subjected, she would not have suffered the harm of which she complained. However, in oral argument the College conceded that the submission that the appellant would have suffered the psychological harm that she did even if she had not been bullied was not open to it in this Court, as Mr Benad, who found that the appellant had suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood as a consequence of what happened at the College, had not been cross-examined. Accordingly, it was accepted that the only issue before this Court was whether, if the College had taken the appropriate measures, the bullying of the appellant would have been prevented, such that she would not have suffered psychological injury.
The Appellant's Submissions on Causation
The appellant submitted that, had the College's policy been implemented, as this Court found in the May judgment that it should have been, the probable course of events that would have ensued (see Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182 at [32] (per French CJ, Gummow, Crennan and Bell JJ)) was that disciplinary action against the major perpetrators of the bullying of the appellant would have deterred those students and other potential bullies. Consequently, the bullying of the appellant would have ceased. What was lacking in the College's attempts to deter bullying was the reinforcement of its stance by action; a firm message needed to be sent. By contrast, the College's failure to implement the policy condoned bullying and sent the wrong message to those students inclined towards such behaviour.
This conclusion was said to be supported by the evidence of Dr Tronc, which was to the effect that the implementation of the policy would have materially reduced the risk of harm to the appellant (which was the relevant test in relation to causation). His view was that any failure to act decisively in response to complaints of bullying would tend to embolden bullies, who typically "test the waters". He stated that, if the steps he had outlined had been taken, the situation would have been "short-circuited", whilst appropriate investigation, intervention, and even punishment would have reduced the risk of harm being suffered by the appellant through unchecked escalation. This opinion, it was submitted, was not seriously challenged and was accepted by the primary judge at [57] of her reasons.
In oral argument, the appellant submitted that the College was attempting to re-agitate specific findings of this Court in relation to particular instances of bullying. However, that approach ignored the finding of this Court (MJ at [150]) that the appellant was subjected to persistent, albeit not relentless, bullying throughout 2004, of which those instances were but examples.
The appellant also contended that, as it was not until the end of 2004 that the physical impact of the bullying on the appellant manifested itself, it could be inferred that the harm would have been prevented if the College had taken the appropriate steps in accordance with the policy. In reply, the College contested this proposition, stating that there was evidence of suicidal ideation and self-harm in early 2004. Consequently, it could not be inferred that if the bullying had ceased by late 2004, the harm to the appellant would have been avoided.
Causation is established
The principles applicable to the present issue are now well established. Section 5D(1)(a) of the Civil Liability Act 2002 (CL Act) requires that the relevant negligence have been a necessary condition of the occurrence of the harm (meaning thereby the injury sustained by the plaintiff). I note in passing that in the present case it was not suggested that if factual causation was established, s 5D(1)(b) was not satisfied. The relevant approach to factual causation was recently articulated by the High Court in Strong v Woolworths Ltd at [32] (referred to at [62] above). However, as the primary judge accepted that the appellant's family situation was also a contributing cause to her psychological injury, it is appropriate to refer to the following passage in the judgment of the plurality in Strong (at [20], omitting references to footnotes):
Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm.
Even more recently, in Hunt and Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; 296 ALR 3; 87 ALJR 505 at [43] the majority (French CJ, Hayne and Kiefel JJ) observed (omitting references to footnotes):
The proper identification of damage should usually point the way to the acts or omissions which were its cause. Causation is largely a question of fact, to be approached by applying common sense to the facts of the particular case.
Their Honours also observed (at [45], omitting references to footnotes) that:
[t]he law's recognition that concurrent and successive tortious acts may each be a cause of a plaintiff's loss or damage is reflected in the proposition that a plaintiff must establish that his or her loss or damage is "caused or materially contributed to" by a defendant's wrongful conduct. It is enough for liability that a wrongdoer's conduct be one cause. The relevant inquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss.
In the present case this passage would seem to be apt, substituting for the word "loss" the words "psychological injury".
In Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239, Hoeben JA referred to a number of passages in the judgment of the High Court in Kuhl v Zurich Financial Services Ltd [2011] HCA 11; 243 CLR 361. Relevant for present purposes is the following observation of Heydon, Crennan and Bell JJ in Kuhl at [104], cited by Hoeben JA at [100]:
In any event, the first respondent's submissions operate on an erroneous assumption about the test for causation. The question is whether the taking of a particular step which the defendant did not take "more probably than not ... would have prevented or minimized the injury which was in fact received." ...
Hoeben JA summarised the relevant test thus (at [105]):
[p]roof of the causal link between [the] omission and an occurrence requires consideration of the probable course of events, had the omissions not occurred.
This statement replicates that in Strong at [32].
As the College's submissions illustrate, essentially its case on causation, given the necessity of accepting the findings in the May judgment, was that even if the College had investigated each of the complaints made by the appellant, that would have led nowhere. In particular, even if those complaints could have been substantiated and the perpetrator of the bullying identified, mediation, detention or suspension would not necessarily have reduced, let alone eliminated, the bullying of the appellant.
The difficulties with the College's submissions appear to me to be as follows:
(a) This Court's findings in the May judgment were, first, that the appellant was during 2004 regularly and continuously, if not relentlessly, bullied, in particular by JP and LM; secondly, that the College failed to take active steps to eradicate what it recognised to be a culture of bullying in the school; thirdly, irrespective of the appellant's complaints with respect to bullying, the College was duty bound to take active steps to seek out the various perpetrators, including but certainly not confined to JP and LM, and to take such action as was reasonably necessary to ensure that the culture of bullying was eradicated.
(b) It was no answer to the College's otherwise inadequate efforts that it was pursuing what can only be characterised as a fairly passive approach on the basis that to do otherwise would cause resentment amongst the perpetrators and cause them to increase their bullying activities rather than abandon them. The evidence of Dr Tronc, accepted by the primary judge and not challenged on the appeal, that if appropriate steps had been taken the situation would have been "short-circuited", enables the inference to be drawn as a matter of probabilities that had the College complied with and not breached its duty of care and taken the necessary steps to which Dr Tronc referred (which were reflected in the policy), the culture of bullying would either have ceased or have been substantially reduced to the benefit of all students, including the appellant;
(c) The fact that the counsellor's notes made no mention of complaints by the appellant with respect to bullying is of no consequence on the issue of causation, if only because of the evidence of Associate Professor Phillips, accepted by the primary judge and referred to at [34] and [35] above;
(d) Nor is the College's case advanced by concentrating, as it did in its submissions, upon particular instances of bullying such as the "rumour incident" of May 2004, which, it was asserted, was the fault of the appellant rather than of the perpetrators against whom the appellant's conduct was directed. This is because the evidence established that the victims of bullying are often driven to retaliate. In any event, the evidence of the appellant, which appears to have been accepted by the primary judge, was that it was never her intention that the rumour in question should have gone further than the particular friends to whom she had confided it. Further, the findings of this Court in the May judgment were not confined to the particular incidents of bullying which were there examined in some detail, given the finding of the primary judge, which this Court found to be open to her, that the appellant was regularly, if not relentlessly, bullied during 2004.
The application of commonsense leads, in my view, to the conclusion that it is more probable than not that, but for the failure of the College to actively implement the policy, the psychological injury to the appellant would not have occurred or at least would have been minimised. Whilst I accept that domestic issues contributed to her condition, there can be little doubt, upon the medical evidence accepted by the primary judge and not challenged, that her psychological injuries were materially contributed to by the bullying that she was forced to endure during 2004 as a consequence of the College's breach of its duty of care. For the foregoing reasons, in my opinion, the appellant has established causation.
The Primary Judge's Award of Damages
The primary judge awarded damages as follows:
Non-economic loss (20% of most extreme case)
$17,500.00
Past economic loss
$25,480.00
Past loss of superannuation
$2,802.80
Future economic loss
$50,000.00
Future loss of superannuation
$5,500.00
Past out of pocket expenses
$3,876.30
Future out of pocket expenses
$11,137.50
Total
$116,296.60
The appellant challenged her Honour's findings with respect to non-economic loss, past and future economic loss, future medical treatment and future care. I note that her Honour did not award any damages for future medical treatment or for future care.
Non-Economic Loss
Although it was submitted that some of the appellant's symptoms related to familial issues and some were the result of the traumatic event of 2007 after she had left the College, the College nevertheless accepted, as her Honour noted at [342] of her reasons, that to the extent that it was concluded that the appellant had a future vulnerability to psychiatric disorder because of the erosion of her psychological resilience as a result of the College's negligence, that had to be taken into account in determining the award to be made under this heading.
The primary judge accepted that, while at the College, the appellant came to suffer from an adjustment disorder from which she had recovered by 2007. Associate Professor Phillips regarded her symptoms as revealing a major depressive disorder which had resolved by 2008, although she continued to have ongoing problems such as being afraid of the dark, having nightmares, and being sensitive to criticism. Her Honour accepted (at [348]) that these symptoms were not all due to other stressors to which the appellant was subjected, but were also due to the College's negligence.
At [350] her Honour stated that she had no difficulty in finding that the severity of the appellant's non-economic loss was at least 15 per cent of a most extreme case, although she did not consider that it was significantly greater than the statutory minimum. She accepted that the evidence revealed that while the appellant had recovered, she had a future vulnerability to psychiatric disorder because of the erosion of her psychological resilience. This finding was consistent with the evidence of Associate Professor Phillips, although contrary to that of Dr Apler. At [351] her Honour concluded that the appellant's non-economic loss was no greater than 20 per cent of a most extreme case, which required an award of $17,500.00.
The appellant submitted that, while her Honour referred to the ongoing symptomology that had arisen out of the College's negligence, it was not at all clear whether she in fact took that into account and, if so, to what extent. It was submitted that she had failed to refer in any detail to the evidence of Associate Professor Phillips, which she appeared to have accepted and which spelled out the extent of the vulnerability to which the appellant was likely to be subjected, giving rise to future psychiatric disorder and attendant problems. It was therefore submitted that her Honour had failed to take into account a number of considerations in determining the nature and extent of the appellant's future psychological issues, in the event that she was subjected to the particular stressors which would cause her to succumb to her vulnerability to futher psychiatric disorder.
The College submitted that the primary judge did not accept the opinion of Associate Professor Phillips as to the nature of the appellant's psychiatric injury, that being the basis of her criticism of the primary judge's assessment of non-economic loss. In this respect, Associate Professor Phillips considered that she had suffered a severe depressive disorder, whereas Mr Benad's opinion, accepted by the primary judge, was that she suffered from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. However, the appellant's condition as described by Mr Benad nevertheless constituted a psychological injury.
The difficulty I have with her Honour's assessment of the appellant's non-economic loss is that, although she acknowledged that the appellant had a future vulnerability to psychiatric disorder due to the erosion of her psychological resiliance caused by the College's negligence, she failed to take into account the probability, as well as the consequences, of the appellant sustaining a psychiatric disorder or injury in the event that she experienced stressors of the type to which Associate Professor Phillips referred in his evidence (see at [22] above). In my view, her Honour's failure to take these matters into account constituted error which justifies appellate intervention, the setting aside of her Honour's assessment of 20 per cent and the re-assessment by this Court of the severity of the appellant's non-economic loss.
The evidence of Associate Professor Phillips was that it was more probable than not, and at least moderately likely, that the appellant would suffer a relapse, particularly if she was required to face any serious future stressor. He predicted (see [21] above) that there would be problems at times and stress in the future and that, although those problems might be episodic, they might last weeks or months.
Taking these matters into account, in my view an appropriate assessment of the appellant's non-economic loss is 25 per cent of a most extreme case. As this Court is assessing non-economic loss afresh, in my opinion the appropriate amount to be factored into the calculation of that loss is the current maximum damages prescribed pursuant to s 16 of the Civil Liability Act, being $535,000.00, which became operative on 1 October 2012: Marsland v Andjelic (1993) 31 NSWLR 162 at 168 per Kirby P and Meagher JA; Eire Contractors Pty Ltd v O'Brien [2012] NSWCA 400 at [182]-[183]. I would therefore award the appellant the sum of $34,775.00 for non-economic loss. However, as the present matter is a rehearing, in my view it is appropriate to determine the appellant's non-economic loss at the time of this Court's judgment, with the consequence that interest will only run on the amount awarded under this head of damage as from the date of that judgment until the date of payment.
Past Economic Loss
The appellant submitted that her Honour's award for past economic loss in the sum of $25,480.00 should be increased by a general allowance of $15,000.00 to cover the periods of time the appellant was off work at various stages after leaving school until the time of trial. As the appellant acknowledged in her written submissions, it appears that there was only one occasion when it could be said that she left her employment due to a relevant stressor, namely, when she left her employment at the Claymore Pharmacy because "[her] boss was very mean to [her] and was constantly telling [her] everything [she] did was wrong". It was submitted that her boss' criticism caused her to leave her employment at the pharmacy. However, the evidence was that she did not like the work environment of the pharmacy as it was attended by drug addicts who came to pick up their methadone, and that this was at least a contributing cause of her leaving.
At [360] her Honour stated that the evidence did not establish that the appellant's leaving school, or her intermittent earnings thereafter until she took up her present full-time employment, was the result of the College's negligence. In my view the appellant has not demonstrated that her Honour was in error in her assessment of past economic loss. Accordingly, her challenge to her Honour's assessment of that loss in the sum of $25,480.00 should be rejected.
Future Economic Loss
The appellant at the time of judgment had a working life of 44 years ahead of her. It was argued that a substantial award was warranted by way of a buffer. The appellant's case was that the evidence established that in the future there was a real likelihood (assessed by Associate Professor Phillips as being in the order of 60 to 70 per cent) that she would be incapacitated from time to time by moderate depression and anxiety, which would impact negatively on her earning capacity by preventing her from working or causing the termination of her then employment or her resignation therefrom. This was particularly so as she had difficulty in dealing with criticism.
At [362] her Honour noted that this submission was founded in Associate Professor Phillips' opinion that the appellant's injury as an adolescent, at a crucial time in her development, had left her in such a position that she might in future succumb to further life stressors which she might encounter. It is apparent that her Honour did not entirely accept that opinion, although she accepted that the appellant had an increased vulnerability to further psychiatric injury in the future.
At trial the appellant sought a buffer of $200,000.00. She now seeks a buffer of between $100,000.00 and $125,000.00. She submitted that the primary judge preferred the evidence of Associate Professor Phillips in a general way, although, as I have said, I do not believe that she accepted every aspect of his evidence.
At [368] of her reasons her Honour noted that the evidence indicated that the appellant had never excelled at school, either before or after 2004. She left school before she had completed her Higher School Certificate and pursued, but did not complete, TAFE studies. She worked in various part-time jobs which she did not find congenial, although her Honour seemed to agree that the appellant had difficulty in dealing with criticism.
At [370] her Honour stated that, with respect to the assumptions in relation to the appellant's future earnings, account had to be taken of the evidence as to her current position and earnings; her intention to complete her studies, which would enable her to pursue other work; that with increased age and experience at work, her earnings would increase; and the real possibility that she would achieve promotion, given her character and the resilience which she had shown in the past. On the other hand there was her increased vulnerability to further injury in the future, which would have a negative impact on her earnings. In the foregoing circumstances, her Honour considered (at [371]) that a modest buffer should be awarded. Noting that such assessments are always difficult, particularly in the case of a person injured before they have embarked on working life, and taking into account vicissitudes, she assessed that buffer at $50,000.00.
At [372] her Honour noted that that figure took into account a number of considerations in relation to the appellant's future earning capacity, including that she was likely to have time out of the workforce as a result of further injury to which she had been rendered more susceptible by the College's negligence and which would have a negative impact on her ongoing earnings and earning capacity.
The appellant's complaint is based on the evidence of Associate Professor Phillips as to the likely circumstances in which she would be the subject of stressors leading to incapacity for work. However, in my view it cannot be said that her Honour failed to take those matters into account. Although I consider that the buffer of $50,000.00 is probably towards the lower end of the relevant range, in my view it has not been demonstrated that her Honour's quasi-discretion in assessing an appropriate buffer contains error which would justify appellate intervention. Accordingly, in my opinion, the appellant's claim for an increased buffer fails.
Future Medical Treatment
The primary judge allowed an amount of $11,137.50 under this head of damage. The appellant submitted that an appropriate award for future treatment would be in the order of $37,142.50. Again her submissions were based upon the evidence of Associate Professor Phillips.
The primary judge dealt with this issue at [379] of her reasons. She indicated her satisfaction that there was a real possibility that a need for further treatment might arise again in the future, which had to be reflected in an award, albeit of a relatively modest kind. She therefore awarded the appellant a sum which reflected 20 to 25 sessions of psychotherapy in a single block, with monthly follow-ups for a further year after completion of formal therapy and second monthly follow-ups for a further year thereafter until she became relatively symptom-free, at the rate identified in Associate Professor Phillips' December 2008 report.
Her Honour's award under this head of damages was based entirely on the evidence of Associate Professor Phillips in his report of 16 December 2008. In other words, her Honour accepted the evidence of the appellant's own medical expert on this issue. In these circumstances, in my view no error has been demonstrated which would justify interfering with her Honour's assessment.
Future Care
At [373] her Honour referred to ss 15(2) and (3) of the Civil Liability Act, which relate to the award of damages for gratuitous attendant care services. At [374] her Honour found that there was no need for either past or future domestic assistance and therefore no award of damages could be made on this basis.
The appellant submitted that, although the tenor of the evidence was that up until the time of the hearing, the care required by the appellant had been provided gratuitously by her parents in circumstances which did not overcome the necessary thresholds provided by s 15 of the Civil Liability Act, nevertheless her Honour had failed to consider providing an amount of $30,000.00 by way of a general allowance for future commercial domestic assistance. It was submitted that there was a real likelihood that the appellant would, from time to time, require the benefit of assistance that would not necessarily be provided gratuitously. This was particularly so after her parents died or were otherwise incapacitated, so that they could not provide the assistance that they had provided up to the date of trial.
In my view there is no substance in these submissions. There is no medical evidence to support them. There can be no suggestion that, even as a matter of probability, any future assistance or care the appellant may need could only be provided commercially as distinct from gratuitously by, say, her husband or partner or other relatives. Thus the appellant has not made out a case for commercial domestic assistance and her Honour was correct in not awarding any amount under this head.
It follows from the foregoing that in her appeal against her Honour's assessment of damages, the appellant has only succeeded on the issue of non-economic loss by increasing the amount awarded under that head from $17,500.00 to $34,775.00, a difference of $17,275.00. The consequence is that the total amount of the appellant's damages, excluding interest, should be increased from $116,296.60 to $133,571.60.
Costs
The College served an offer of compromise in the sum of $125,000.00 on 12 May 2010. On the basis of her Honour's original assessment of damages, when interest was taken into account, the total judgment figure became $124,938.48, which fell short of the amount of the offer of compromise. This gave rise to an issue as to whether her Honour should "otherwise order" in respect of the rule relating to indemnity costs. Her Honour did not do so and the appellant sought to challenge that finding. However, as the amount of the judgment now exceeds the amount of the offer, the issue of costs litigated before her Honour has become moot. I would add that the appellant countered with an offer of compromise in the sum of $200,000.00. As the amount of the judgment does not reach that figure, it follows that the College should pay the appellant's costs of the trial on the ordinary basis.
Conclusion
The appellant's appeal was confined to the issue of damages, upon which she has succeeded at least in part. However, that issue took very little time in terms of both submissions and hearing time. The major issues litigated before this Court related to liability pursuant to the College's cross-appeal, in respect of which it has been unsuccessful. It follows that the appeal should be allowed and the cross-appeal should be dismissed. The respondent should pay the appellant's costs of both the trial and the appeal. Further, the judgment in favour of the appellant should be set aside and recalculated by increasing the amount awarded for non-economic loss and adding the amount of interest payable to the date of publication of these reasons.
I would therefore propose the following orders:
1. Appeal allowed in part.
2. Cross-appeal dismissed.
3. Set aside the judgment in favour of the appellant in the sum of $124,938.48 given and entered on 17 October 2011 and in lieu thereof enter judgment for the appellant in the amount to be determined by the parties in accordance with these reasons and conveyed to the Court within 7 days of the date of these orders.
4. The respondent to pay the appellant's costs of the trial before Schmidt J and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified.
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Decision last updated: 25 September 2013
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