Pecenka v Minister for Health
[2010] WADC 163
•2 NOVEMBER 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PECENKA -v- MINISTER FOR HEALTH [2010] WADC 163
CORAM: SLEIGHT DCJ
HEARD: 25-28 & 31 MAY, 1-4, 8-11 & 22-25 JUNE 2010
DELIVERED : 2 NOVEMBER 2010
FILE NO/S: CIV 144 of 2006
BETWEEN: VIKTORIA PECENKA
Plaintiff
AND
MINISTER FOR HEALTH
Defendant
Catchwords:
Claim for damages for injured shoulder/arm - Duty of care of employer - Res judicata and issue estoppel arising from WorkCover proceedings - Whether plaintiff suffered rotator cuff injury - Consequences of breach of rule in Browne v Dunn - Whether employer negligent - Res ipsa loquitur - Whether employee guilty of contributory negligence
Claim for damages for psychiatric injury - Alleged failure of employer to resolve conflict with another employee - Nature of duty of care of employer - Issue estoppel arising from WorkCover proceedings - Whether injury foreseeable - Whether employer negligent - Cause of injury
Claim for damages for psychiatric injury - Arising from alleged false allegations of deliberately damaging equipment and deliberately injuring herself - Duty of care of employer - Whether injury foreseeable - Failure by defendant to call witness - Principles of Jones v Dunkel - Whether employer negligent - Whether breach of duty of care can arise from employer raising allegations in legal proceedings
Legislation:
Occupational Safety and Health Act 1984 (WA), s 19(1)
Public Sector Management Act 1994 (WA)
Result:
Claim for damages for injury to right arm allowed - award $20,000
Claims for damages for psychiatric injury dismissed
Representation:
Counsel:
Plaintiff: Mr G Cridland
Defendant: Mr R Hooker
Solicitors:
Plaintiff: Hammond Legal
Defendant: Talbot Olivier
Case(s) referred to in judgment(s):
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Bennett v Minister for Community Welfare (1992) 176 CLR 108
Blair v Curran (1939) 62 CLR 464
Browne v Dunn (1893) 6 R 67 HL
Byrne v Boadle (1863) 2 H & C 722; (1863) 159 ER 299
Cabassi v Vila [1941] ALR 33; (1940) 64 CLR 130
Carl Ziss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Chamberlain v Deputy Federal Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Duyvelshaff v Kathcart & Richie Ltd (1973) 47 ALJR 410
Giannarelli & Shulkes v Wraith [1988] HCA 52; (1988) 165 CLR 543
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hegarty v Queensland Ambulance Service [2007] QSC 90
Hewett v Medical Board of Western Australia [2004] WASCA 170
Jones v Dunkel (1950) 101 CLR 298
Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Marelic v Comcare (1993) 121 ALR 114
Nationwide News v Naidu & Ors (2007) 71 NSWLR 471
New South Wales v Fahy [2007] HCA 20
Piening v Wanless (1968) 117 CLR 498
Ramsay v Pigram [1968] ALR 419; (1968) 118 CLR 271
Roads & Traffic Authority (NSW) v Dederer [2007] HCA 42
Schellenberg v Tunnel Holdings Pty Ltd (1999-2000) 200 CLR 121
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Sullivan v Moody (2001) 207 CLR 56
Tame v New South Wales [2002] HCA 35; 211 CLR 317
Vairy v Wyong Shire Council (2005) 223 CLR 422
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Index
1. Background
2. Pleadings
(a) Plaintiff's claims
(i) Right arm injury claim
(ii) Psychiatric injury on 18 September 2000
(iii) Aggravation of psychiatric illness
(b) Defence
(i) Defence of right arm injury claim
(ii) Defence to claim of psychiatric injury of 18 September 2000
(iii) Defence to claim of aggravation of psychiatric illness
3. Relevant legal principles
(a) Duty of care of employer
(b) Duty of care to prevent psychiatric injury
(c) Causation
4. Witnesses called
(a) Witnesses called by the plaintiff
(b) Witnesses called by the defendant
5. Summary of relevant history of Ms Pecenka's employment
(a) General background
(b) Commencement of employment with PMH
(c) Stress leave in 1994
(d) Paul Carter incident in 1996
(e) Employment of Mrs Petrowsky
(f) Anxiety attacks of Ms Pecenka in early 1999
(g) Bill Clinton argument in November 1999
(h) Complaints to Penny Hall in March 2000
(i) April 2000 (lipstick and voodoo doll incidents)
(j) King Edward Memorial Hospital incident (May 2000)
(k) 14 July 2000 (expressed breast milk incident)
(l) Potassium chloride incident
(m) Performance appraisal in July 2000
(n) Incident report forms dated 31 July 2000
(o) Incident reports of other employees
(p) Consultation with Dr Webster and Wood Styles
(q) Meetings on 28 to 31 August 2000
(r) 1 September 2000
(s) Human resources department consultant – 6 September 2000
(t) Meetings on 11 September 2000
(u) Meeting with Kingsley Sinclair on 12 September 2000
(v) Meeting on 13 September 2000
(w) Meeting on 18 September 2000
(x) Doctor's consultation on or about 18 September 2000
(y) Events prior to meeting on 27 September 2000
(z) Investigation of complaints -meeting on 28 September 2000
(aa) 4 October 2000
(ab) 5 October 2000
(ac) Return to work on 9 October 2000
(ad) 16 October 2000
(ae) 17 October 2000
(af) 18 October 2000
(ag) Meeting on 20 October 2000
(ah) Meeting on 30 October 2000
(ai) Application for long service leave
6. Failure of the defendant to call Mr Michael Wright
7. Contractual statutory and other relevant provisions
8. General observations concerning witnesses
(a) Ms Pecenka
(b) Mrs Petrowsky
(c) Other workers in the Infant Formula Room
(d) Ms Hall
(e) Ms Martino
(f) Mr Tuttle and Mrs Brien
9. Issue estoppel matters
(a) History of WorkCover proceedings
(b) Effect of alleged admission by defendant in WorkCover proceedings of injury to right arm on 5 October 2000
(c) Alleged issue estoppel that plaintiff suffered a psychiatric injury on 18 September 2000 and this was significantly contributed to by reason of her employment
(d) Alleged issue estoppel that the plaintiff did not suffer a rotator cuff injury to the right arm
10. Claim of injury to right arm/shoulder
(a) Was the pasteuriser machine damaged prior to an incident on 5 October 2000?
(b) Did the pasteuriser lid fall heavily on the right arm of Ms Pecenka on 5 October 2000 causing a rotator cuff injury to the right arm and other injuries?
(i) The evidence
(ii) Conclusions(c) Did Ms Pecenka suffer any injuries as a result of the repetitive lifting of the pasteuriser?
(d) Did Ms Pecenka suffer any consequential injuries as claimed?
(e) Were any injuries to right arm of Ms Pecenka caused by a breach of duty of care by the defendant?
(f) Claim of contributory negligence
11. Did Ms Pecenka suffer a psychiatric illness on 18 September 2000?
(a) Evidence of psychological injury
(i) Evidence of Ms Pecenka
(ii) Evidence of Dr Webster
(iii) Evidence of Dr Terace
(iv) Evidence of Dr Bell
(v) Evidence of Dr Fitch
(vi) Medical panel assessments
(b) Did Ms Pecenka suffer a psychiatric injury as at 18 September 2000?
12. Did the psychiatric injury suffered by Ms Pecenka as at 18 September 2000 arise due to the failure of the defendant to satisfactorily address the complaints made by the plaintiff and/or other employees at PMH regarding Mrs Petrowsky's behaviour?
(a) The nature of the conflict between Ms Pecenka and Mrs Petrowsky
(b) Was it reasonably foreseeable the plaintiff would suffer a psychiatric illness as at 18 September 2000?
(c) Was the defendant in breach of a duty of care as claimed in relation to the psychiatric injury of the 18 September 2000?
13. Did Ms Pecenka suffer a further psychiatric illness as a result of the accusations that she had deliberately damaged the pasteuriser machine and falsely claimed an injury to her right shoulder?
14. Was the further psychiatric illness reasonably foreseeable?
15. Was the defendant in breach of its duty of care by accusing Ms Pecenka of damaging the lid and deliberately injuring herself, suspending her and pursuing the allegations ....... in proceedings?
(1) Failed to properly investigate the allegations (pars 24B(i) and 24B(iv) of the statement of claim)
(2) Notifying Dr Webster of the allegations (par 24B(ii) of the statement of claim)
(3) Suspension of Ms Pecenka (par 24B(iii) of the statement of claim)
(4) Repeated allegations at a review hearing in WorkCover proceedings (par 24B(v) of the statement of claim)
16. Assessment of damages
(a) Assessment of damages on right arm injury claim
(b) Provisional assessment of damages on psychiatric illness claims
17. Summary of conclusions
Annexure A
Statement of Claim
Particulars of Incidents Involving the Plaintiff
Particulars of Complaints and Material Events
Annexure B
SLEIGHT DCJ:
Background
This action concerns claims by Ms Pecenka against her employer for physical and psychiatric injuries suffered in the course of Ms Pecenka's employment at the Princess Margaret Hospital for Children in Perth.
The Princess Margaret Hospital for Children (PMH) is the major children's hospital in Western Australia. It is a public hospital conducted by the defendant. At all relevant times the plaintiff, Ms Pecenka, was employed as the supervisor in the Infant Formula Room. The staff of the Infant Formula Room were responsible for preparing formula milk bottles for young babies who were patients at the hospital. The formulae varied depending upon the medical needs of the individual babies. The task of preparing the formula milk bottles was an important task which had to meet strict timetables and, of course, had to be accurate.
Ms Pecenka commenced her employment as the supervisor of the Infant Formula Room in April 1990. At that time the Infant Formula Room had three staff members working in a room preparing the formulae. There was an adjacent room, linked by a hole in the wall, which was used to wash bottles. There were two staff members located in this room whose principal task was to wash the bottles.
The Infant Formula Room was a part of the Nutrition and Dietetics Department of the hospital and the supervisor of the Infant Formula Room was directly answerable to a senior dietician within the Department. When Ms Pecenka first commenced her position of employment, the senior dietician she was immediately answerable to was Ms Beth Martino, but from 1998 onwards Ms Martino became the acting head of the Department. From 1998 the senior dietician directly responsible for the Infant Formula Room became Ms Penny Hall, who later changed her surname to her married name of Scalise. Without intending any disrespect to Mrs Scalise, I will refer to Mrs Scalise throughout this decision by the surname Hall, as this is the name used by witnesses and in documents tendered during the trial.
Situated in the Infant Formula Room was a pasteuriser machine. The pasteuriser machine was approximately 1,200 mm in length, 800 mm in depth and about 200 mm in height. It had a lid on top of it which was manually opened and closed. The opening and closing of the lid was assisted by four metal springs.
Ms Pecenka claims that as a result of the cumulative effect of opening and closing the lid of the pasteuriser machine over a period of time and/or as a result of the lid falling twice on her right arm on 5 October 2000, her right arm and/or shoulder were injured. A claim is made for damages for the consequential personal injuries and disabilities suffered by Ms Pecenka. The main physical injury for which damages are sought is a rotator cuff injury to the right shoulder but there are other consequential disabilities also claimed.
Ms Pecenka also makes two overlapping claims for damages for psychiatric injuries. The first claim is based primarily upon a number of incidents where it is alleged another employee in the Infant Formula Room, a Mrs Petrowsky, behaved in an insulting, provocative or aggressive manner towards Ms Pecenka. Ms Pecenka complains that her employer, the defendant, was negligent and in breach of its duty of care by failing to satisfactorily address the complaints made by Ms Pecenka and/or other employees regarding Mrs Petrowsky's behaviour. Ms Pecenka claims she suffered a psychiatric injury as a result of this breach of duty of care.
The second psychiatric injury claim is for damages for a further psychiatric illness or an aggravation of the previous psychiatric illness, claiming the defendant was in breach of its duty of care by alleging that Ms Pecenka had deliberately damaged the pasteuriser machine and had deliberately injured herself. The three occasions when these allegations were made, upon which Ms Pecenka relies, were in a meeting with Ms Pecenka's doctor, during disciplinary proceedings and in WorkCover proceedings.
Central to the two psychiatric illness claims is an allegation by Ms Pecenka that PMH knew or ought to have known of her vulnerability to suffering a psychiatric illness due to a number of alleged warnings that she gave PMH as to her mental state.
Pleadings
The pleadings in this matter regrettably mirror the fact that Ms Pecenka's claims and the defendant's defence are dependent upon a plethora of allegations and cross allegations relating to incidents in the course of Ms Pecenka's employment with PMH.
(a) Plaintiff's claims
Right arm injury claim
The plaintiff pleads that as a result of the cumulative effect of opening and closing the lid of the pasteuriser machine between about April 1990 and October 2000 and/or as a result of the lid falling on Ms Pecenka's right arm on 5 October 2000, Ms Pecenka suffered an injury to her right arm and/or shoulder (injury to the right limb).
Ms Pecenka pleads that by virtue of an admission made by the defendant before Review Officer Mr Spivey in WorkCover proceedings (Application No 4394/00) that Ms Pecenka suffered a right arm disability on 5 October 2000 and by accepting liability for weekly payments, the defendant has formally admitted and is estopped from denying the plaintiff suffered a right arm disability on 5 October 2000.
The plaintiff further pleads that the injuries to the right limb occurred as a result of the negligence and/or breach of statutory duty and/or breach of contract of the defendant. The alleged grounds of liability were particularised as follows:
23.The Plaintiff's right limb injury as pleaded in paragraph 8 herein, occurred as a result of the negligence and/or breach of statutory duty and/or breach of contract of the Defendant, his servants or agents.
Particulars of Negligence
The Defendant, its servants or agents were negligent in that they:
a.Failed to provide a safe system of work in that it was unsafe for the Plaintiff to have to repetitively open and close the lid of the machine given its weight and size;
b.Required the Plaintiff to use the machine on a repetitive basis when it knew or ought to have been aware that repetitive opening and closing of the lid was unsafe given the weight and size of the lid;
c.Failed to devise and implement an alternative method of opening and closing the lid, such as requiring 2 employees to open and close the lid together at all times, so as to minimise the risk of injury from straining to open and close the lid alone;
d.Failed to maintain or adequately maintain the lowering mechanism for lowering the lid of the machine so as to ensure that the lid could be safely opened and closed by staff at PMH;
e.Failed to inspect, detect and repair the lowering mechanism for lowering the lid of the machine so as to ensure that the lid could be safely opened and closed by staff at PMH;
f.Failed to act quickly or repair the lowering mechanism for lowering the lid of the machine following notification by the Plaintiff on 6 October 2000 that the lowering mechanism on the lid was faulty;
g.Required and allowed the Plaintiff to continue using the machine after 6 October 2000 despite the fact that they were aware that the lowering mechanism of the lid was faulty, given the Plaintiff's complaint regarding the machine on 6 October 2000;
h.Failed to provide adequate training and instructions to the Plaintiff as to how to open and close the lid of the machine without straining;
i.Failed to warn the Plaintiff of the risk of injury arising from repetitive opening and closing the lid of the machine;
j.Failed to train its servants, employees or agents to ensure that a system was in place for ensuring potential hazards, such as the unsafe lid of the machine, were identified, reported and attended to;
k.Failed to upgrade the machine by replacing it with a dishwasher given that from about 1995 the machine was solely used for sanitising equipment;
l.Failed to modify or retrofit the lid of the machine with one that was more ergonomically suited for repetitive or high volume use over an extended period of time;
Particulars of Breach of Statutory Duty
The Defendant, his servants and agents have breached Section 19(1) of the OSH Act in that they:
a.the Plaintiff repeats paragraphs 23(a) to 23(l) above.
Particulars of Breach of Contract
The Defendant, his servants or agents have breached the express or implied contractual terms in that they:
a.the Plaintiff repeats paragraphs 23(a) to 23(l) above.
Psychiatric injury on 18September 2000
The plaintiff pleads that between January 2000 and September 2000 the plaintiff and other employees complained to the defendant on a number of occasions about the aggressive and rude behaviour of Mrs Petrowsky. Particulars of the alleged behaviour of Mrs Petrowsky and the alleged complaints made to the defendant are contained in annexure A to this decision.
The plaintiff pleads that as a result of the defendant's failure to satisfactorily address the complaints made by the plaintiff and/or other employees at PMH regarding Mrs Petrowsky's behaviour, Ms Pecenka suffered a psychiatric injury on or about 18 September 2000.
The plaintiff pleads that the defendant is estopped from denying the plaintiff suffered a psychiatric injury on 18 September 2000, which injury was significantly contributed to by reason of her employment, by reason of a decision of Review Officer Mr Spivey in proceedings in WorkCover Application No. 4394/00.
The plaintiff pleads that the psychiatric injury suffered on 18 September 2000 occurred as a result of the negligence; and/or breach of statutory duty of the defendant, its servants and agents; or breach of contract. The particulars provided were as follows:
24.The Plaintiff's psychiatric injury, pleaded in paragraphs 13.1, 13.2 and 22 herein, occurred as a result of the negligence and/or breach of statutory duty of the Defendant, its servants or agents.
Particulars of Negligence
The Defendant, its servants or agents were negligent in that:
A.In relation to the psychiatric injury pleaded in paragraphs 13.1 and 13.2 herein:
i.Employed Mrs Petrowsky on a permanent basis from the outset when they should have employed her on a probationary basis to enable assessment of her suitability as an employee at the Infant Formula Room before she was engaged permanently given that the Defendant knew, or ought to have been aware, that Mrs Petrowsky was disliked by her co‑worker at her previous place of employment (King Edward Memorial Hospital) and had been a cause of discontent and disharmony at that workplace;
ii.Employed Mrs Petrowsky on a permanent basis using a selection process that did not include the selection panel considering referee reports which would have enabled assessment of her suitability as an employee at the Infant Formula Room and prevented a member of that selection panel and Supervisor of the Infant Formula Room from viewing Mrs Petrowsky's personnel file;
iii.Continuously failed to adequately address the verbal and written complaints pleaded in paragraph 11 herein made by the Plaintiff and other employees of the Defendant regarding the behaviour of Mrs Petrowsky;
iv.Allowing relations between Mrs Petrowsky and other staff at PMH to deteriorate to the extent that relations were irreparable, and exposing the Plaintiff to risk of developing a stress-related disability or psychiatric injury (which in fact eventuated);
v.Failed to recognise, given:
1.the Plaintiff's visible emotional distress when complaining about Mrs Petrowsky;
2.the frequency of the Plaintiff's complaints about Mrs Petrowsky;
3.the request made in or around May 2000 by the Plaintiff for information from Mrs Martino in respect of the amount of Potassium chloride required to be taken to die;
4.the reasons given by the Plaintiff for the annual leave she took from 14 August 2000 to 25 August 2000 pleaded in paragraph 11(e) herein;
5.the fact that the Plaintiff had a history of stress and/or depression having required leave for work related stress in the past in 1994 and having disclosed a past history of stress and/or depression when completing her application for employment with PMH;
that the Plaintiff was at greater than usual risk of developing a psychiatric injury or stress‑related disability if her complaints about Mrs Petrowsky were not adequately addressed or adequately managed;
vi.Failed to take any, adequate and/or timeous measures to address the deteriorating working relationship between Mrs Petrowsky and the Plaintiff when it knew or ought to have known that the working relationship started becoming "problematic" or hostile as early as between January 2000 and July 2000;
vii.Exposed the Plaintiff to the risk of developing a psychiatric injury by requiring her to attend the meetings on or about 30 August 2000 and on or about 12 September 2000, pleaded in paragraphs 11(l) and 11(q) herein, when they knew or ought to have foreseen that a confrontational meeting would be likely to inflame the situation;
viii.Requiring the Plaintiff to attend the meeting on 12 September 2000, pleaded at paragraph 11(q) herein, without giving the Plaintiff adequate particulars of the complaints made to be made against her by Mrs Petrowsky and without giving her a proper opportunity to consider such complaints;
ix.Failed to devise and implement an appropriate and effective protocol for addressing inappropriate and unacceptable behaviour in the workplace;
x.Failed to closely monitor the conflict between the Plaintiff and Mrs Petrowsky so as to ensure that the situation was not escalating;
xi.Failed to timeously appoint appropriately qualified mediators to address the problem;
xii.Failed to provide the Plaintiff with training or adequate training to respond to aggression in the workplace.
Aggravation of psychiatric illness
The plaintiff pleads that the defendant made certain statements and charges and allegations which caused the plaintiff to suffer a psychiatric injury and/or an aggravation of the psychiatric injury suffered on 18 September 2000. The statement, charges and allegations the plaintiff relies upon are as follows:
(a)On 18 October 2000 two employees of Princess Margaret Hospital informed Dr Webster (Ms Pecenka's doctor) that they believed that Ms Pecenka had deliberately hurt herself and damaged the pasteuriser machine and that her workers' compensation claim would be disputed.
(b)On 20 October 2000 Ms Pecenka attended a meeting at PMH where she was accused of deliberately damaging the lid of the pasteuriser machine and falsely claiming she had injured her right shoulder as a result of the damaged lid and was suspended.
(c)In or about July 2001 in the course of a review hearing at WorkCover the defendant's legal representative accused the plaintiff of deliberately breaking the lid of the pasteuriser machine and deliberately injuring herself in order to obtain workers compensation benefits.
The plaintiff pleaded that the psychiatric injury suffered as a result of these events occurred as a result of the negligence; and/or breach of statutory duty of the defendant, its servants or agents; or breach of contract. The particulars of negligence pleaded were as follows:
24B.In relation to further psychiatric injury and/or aggravation of the psychiatric injury pleaded at paragraph 22 herein:
i.Failed to properly investigate the allegations made against the Plaintiff regarding damage to the lid of the machine prior to suspending her;
ii.Informed the Plaintiff's General Practitioner that they suspected she had deliberately hurt herself and damaged the lid of the machine on the basis of unsubstantiated allegations against her when they knew or ought to have known that the Plaintiff was vulnerable to further psychiatric injury given the occurrence of the psychiatric injury pleaded in paragraphs 13.1 and 13.2 herein (and the antecedent events which precipitated the diagnosis of the psychiatric injury or stress‑related disability as pleaded in paragraphs 10 to 12 herein) and when they knew or ought to have known that Dr Webster would inform the Plaintiff of what occurred at the meeting on 18 October 2000;
iii.Took disciplinary action against the Plaintiff by suspending her, without the approval of the Chief Executive Officer, on the basis of unsubstantiated allegations against her when they knew or ought to have known that the Plaintiff was vulnerable to further psychiatric injury given the occurrence of the psychiatric injury pleaded in paragraphs 13.1 and 13.2 herein (and the antecedent events which precipitated the diagnosis of the psychiatric injury or stress-related disability as pleaded in paragraphs 10 to 12 herein);
iv.Failed to devise and implement an appropriate system for the investigation of allegations made by one employee against another;
v.Recklessly or with reckless indifference to the truth, caused, permitted or made the Review Hearing allegations even after the charges were withdrawn (for lack of evidence or otherwise);
Particulars of Breach of Statutory Duty
The Defendant, his servants and agents have breached Section 19(1) of the OSH Act in that they:
a.the Plaintiff repeats paragraphs 24A(i) to 24B(v) above.
25.Further, or in the alternative, the plaintiff's psychiatric injury, pleaded in paragraphs 13.1, 13.2 and 22 herein, occurred as a result of the defendant's breach of express or implied terms of the Plaintiff's contract of employment with the Defendant pleaded in paragraph 3 herein.
Particulars of Breach of Contract
The Plaintiff repeats paragraphs 24A(i) and 24B(v) above.
(b) Defence
Defence of right arm injury claim
The defendant denies Ms Pecenka injured her right arm as alleged and denies any negligence, breach of statutory duty or breach of contract. The defendant pleads (par 5(e) of the defence), what is essentially a contributory negligence pleading, that the injury arose by reason of the plaintiff's own conduct in:
(i)failing to use the machine in accordance with the defendant's manual handling practice in place at PMH;
(ii)handling the lid of the machine excessively and directing other staff not to share the task of using the machine amongst staff working in the Infant Formula Room;
(iii)allowing the lid to fall from its open position; and
(iv)failing to take reasonable care when using the machine and/or the lid of the machine.
Further, in par 17 of the defence the defendant pleads that the plaintiff was guilty of contributory negligence in that she handled, dealt with or used the machine inappropriately and contrary to standard procedures and continued to use the machine when she knew or ought to have known that it required maintenance.
The defendant denies that it is estopped by any admissions made in relation to WorkCover proceedings as to a disability suffered on 5 October 2000 as any admissions made were made solely for the purpose of resolving disputes under the Workers' Compensation and Rehabilitation Act 1981 and cannot be relied upon for the purpose of these proceedings.
Further, the defendant pleads Ms Pecenka is estopped from proceeding with the claim for an injury other than a minor strain injury as the review officer made a determination that the plaintiff did not adduce sufficient evidence in proceedings before him to satisfy him on the balance of probabilities she suffered a rotator cuff tear at work on 5 October 2000.
Defence to claim of psychiatric injury of 18 September 2000
The defendant denies Mrs Petrowsky acted in an insulting, provocative or aggressive manner, that between January 2000 and September 2000 the plaintiff and other employees complained about Mrs Petrowsky, and that the defendant was negligent, in breach of its statutory duties or was in breach of any expressed or implied term of employment.
The defendant further pleads in par 7 of the defence:
(a)Ms Pecenka acted in a manner entirely inappropriate both per se and in view of her position as manager and an employee senior to Mrs Petrowsky (particulars of which are set out in annexure B to this decision);
(b)The plaintiff's behaviour was the subject of a complaint by Mrs Petrowsky which gave rise to an investigation and disciplinary action by the defendant;
(c)The plaintiff behaved in an intimidating, aggressive and bullying manner towards Mrs Petrowsky.
The defendant denies that any issue estoppel arises in relation to the psychiatric illness on the basis that any determination in WorkCover proceedings did not concern the necessary elements the plaintiff needed to prove in this action of the existence of a duty of care, a breach of an alleged duty and causation or extent of any alleged injury.
Further, the defendant pleads a contributory negligence in pars 7A(b), 17.3 and 17.4. These allegations of contributory negligence can be summarised as behaving and interacting with Mrs Petrowsky in an inappropriate manner, failing to cooperate with management and failing to accept appropriate offers of counselling.
The defendant also pleads that any psychiatric illness suffered by Ms Pecenka was caused or contributed by her personal predisposition and by her participation in a series of compensation claims before WorkCover.
The defendant also pleads that at all times the defendant and its employees appropriately dealt with matters raised by the plaintiff in an efficient and reasonable manner; that they treated the plaintiff in a courteous, reasonable and fair manner; they carried out relevant investigations and inquiries reasonably and within the contractual and statutory framework; and conducted and participated in all other proceedings relating to the plaintiff's employment appropriately.
Defence to claim of aggravation of psychiatric illness
The defendant denies the plaintiff suffered a further or an aggravation of an existing psychiatric injury. The defendant denies any breach of its duty of care and pleads that it conducted a proper investigation of allegations made against the plaintiff regarding deliberate damage to the pasteuriser machine and associated inappropriate behaviour.
Foreseeability
In relation to both psychiatric injury claims the defendant pleads that any such injuries suffered were not a foreseeable consequence of the plaintiff's employment by the defendant or matters pleaded by the plaintiff or were caused by the matters pleaded by the plaintiff.
Notwithstanding the above pleadings counsel appearing for the defendant at trial conceded that Ms Pecenka had suffered a psychiatric illness at some stage and that issues arising from her employment were a contributing cause of this illness. However the nature and extent of this illness remain contentious.
Relevant legal principles
Before considering the evidence and factual issues raised by the pleadings it is appropriate that I give an outline of the general legal principles that apply in a case where an employee makes a claim based upon a breach of duty of care. It should be noted that although the plaintiff, Ms Pecenka has framed her claim under the alternative grounds of a tortious duty of care, a statutory duty of care under s 19(1) of the Occupational Safety and Health Act 1984 and a contractual duty of care, she has not argued that the relevant duties differ. The claim in each case is akin to a tortious duty of care owed by an employer to an employee and accordingly the plaintiff, Ms Pecenka has relied upon the same particulars of negligence for the pleaded breach of each separate legal duty of care.
(a) Duty of care of employer
The law is well settled that an employer owes a duty of care to its employees to take reasonable care for their safety. The duty encompasses an obligation to take reasonable steps to provide safe plant and machinery and a safe system of work (Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 [34]; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 307 ‑ 308; (Mason, Wilson and Dawson JJ); Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, 25 (Dixon and Kitto JJ)).
The High Court in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 (842 to 843, [12]) stated the principles as follows:
An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.
However, the obligation is only to take reasonable care for the safety of the employee. It does not mean that the employer must safeguard the employee completely from all perils (see Vozza v Tooth & Co Ltd (1964) 112 CLR 316, 318 (Windeyer J); Crombie v Uniting Church in Australia Property Trust (WA)(1997) 17 WAR 291, 301 (Malcolm CJ)).
In deciding whether there had been a breach of duty of care, it is a mistake to solely consider whether there was a failure to eliminate a risk that was reasonably foreseeable or preventable. Such a failure is not enough. The issue remains what is a reasonable man's response to the risk (Tame v New South Wales[2002] HCA 35; 211 CLR 317 (McHugh J) [99]).
Mason J in Shirt's case (47 ‑ 48) stated as follows:
The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. (emphasis added). It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
In the case of Roads & Traffic Authority (NSW) v Dederer [2007] HCA 42, Gummow J [69] stated that:
What Shirt requires is a contextual and balanced assessment of the reasonable response to a foreseeable risk. Ultimately, the criterion is reasonableness, not some more stringent requirement of prevention.
The issue of reasonable foreseeability of risk should not be considered in isolation but in the context of the ultimate issue of what reasonable care requires. McHugh J in Tame's case stated as follows [102]:
So far as possible, the issue of reasonable foreseeability of risk in breach of duty situations should no longer be determined in isolation from the issue of reasonable preventability and the ultimate issue of what reasonable care requires. Indeed at the breach stage, it is better to avoid the question of reasonable foreseeability. Instead, courts should see their task as that of deciding whether the defendant knew or ought to have recognised that he or she had created an unreasonable risk of harm to others. Whether the creation of the risk was unreasonable must depend on whether reasonable members of the community in the defendant's position would think the risk sufficiently great to require preventative action. This is a matter for judgment after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge. (my emphasis)
When considering what is a reasonable response to a foreseeable risk the tribunal of fact must look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury. In this case, insofar as the psychiatric injury claims of Ms Pecenka are concerned, the critical question is what a reasonable employer would do by way of response to any foreseeable risk to Ms Pecenka (see New South Wales v Fahy [2007] HCA 20 (Gummow and Hayne JJ) [57] and [62]; Vairy v Wyong Shire Council(2005) 223 CLR 422 (Hayne J [124] and Gummow J [60] ‑ [61])).
The obligation to others (which might arise because of statutory or other based obligations) may not only be relevant to the breach question of what would have been the response of the reasonable person, but may in some cases remove the duty of care. In Sullivan v Moody (2001) 207 CLR 56 the High Court unanimously ruled that the Department of Community Welfare had no duty of care to fathers falsely accused of child abuse due to negligent examination, diagnosis and reporting of abuse as such a duty would be inconsistent with responsibilities of investigating allegations in a scheme where the paramount consideration was protecting children.
In Tame's case the question arose whether a policeman conducting an enquiry had a duty of care to protect a person the subject of the enquiry from emotional disturbance and psychiatric illness. Gleeson [26], Gaudron [56], Hayne [298] said no, McHugh [126] and Gummow and Kirby JJ [231] said it was unlikely.
The responsibility the defendant had to others is particularly pertinent to the claims by Ms Pecenka in relation to psychiatric injury. The responsibility of PMH included responsibilities to not only Ms Pecenka but to other employees such as Mrs Petrowsky and also the patients of the hospital. The obligation to the patients is paramount to a hospital and in this case included an obligation to ensure that the Infant Formula Room remained functional.
(b) Duty of care to prevent psychiatric injury
The duty of care of an employer includes a duty to take reasonable care to eliminate all risks of injury, which includes both physical and mental injuries (see Tame's case (McHugh J) [140]).
The threshold question in relation to a claim for psychiatric injury is often whether the injury is reasonably foreseeable. It deciding whether the injury is reasonably foreseeable, the test is from the perspective of someone in the defendant's shoes. This is so despite the fact there may be psychiatric evidence before the court that a psychiatrist might well have foreseen that a normal person might suffer the psychiatric injury suffered by a claimant. It is an entirely different thing to attribute that knowledge, indeed even a suspicion of it, to a defendant.
There have been a number of recent decisions concerning claims by employees for psychiatric injuries which are instructive as to the approach that should be taken in considering such claims.
In the case of Koehler v Cerebos (Aust) Ltd(Koehler's Case) (2005) 222 CLR 44, the High Court upheld a dismissal of a claim by an employee for psychiatric illness arising from the workload of the employee. There was a history of the employee complaining on many occasions about her work overload but no indication from her that it was affecting her health. Central to the conclusion in Koehler's case was that the employer had no reason to suspect that the employee was at risk of psychiatric illness [41]. The court emphasised that the content of the duty an employer has to an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking into account the obligations which the parties owe one another under the contract of employment, obligations arising from that relationship which equity would enforce and other statutory provisions. These contextual issues had particular relevance in Koehler's case as to whether the employee had an obligation to modify the duties of employment of the plaintiff (Koehler's case at [21]). Depending on the circumstances, an employee's agreement to do work may have some significance (Koehler's case [27 – 29]).
In Koehler's case it was recognised that there is a difference between foreseeing stress as opposed to a psychiatric illness. In the joint judgment of McHugh, Gummow, Hayne and Hayden JJ at [34] it was stated as follows:
It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work.
In the case of Nationwide News v Naidu & Ors (2007) 71 NSWLR 471, the majority of the Court of Appeal in New South Wales upheld an appeal against a decision of the trial judge who found an employer liable for humiliating and harassing treatment of an employed security guard by his supervisor causing psychiatric injury. The majority allowed the appeal and dismissed the claim on the basis that it was not reasonably foreseeable the employee would suffer a psychiatric injury. Spigelman CJ (who formed a part of the majority) at [20] stated as follows:
The prospective nature of the injury as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.
In Hegarty v Queensland Ambulance Service [2007] QSC 90, Wilson J allowed an employee's claim for psychiatric injury arising from his duties as an ambulance driver where he had been exposed to a history of traumatic events and had informed his employer that he was not coping. Critical to the decision was the finding of Wilson J that the employer had been informed on repeated occasions that the plaintiff was not coping and also there was a failure to have in place a system to adequately identify signs of dysfunction in personnel who were regularly exposed to distressing and traumatic experiences [134 – 136].
(c) Causation
Whether or not a causal connection exists between a breach of duty and any harm suffered by the person to whom the duty is owed is a question of fact to be determined on the balance of probabilities (see Bennett v Minister for Community Welfare (1992) 176 CLR 108 (McHugh J), 428). As stated in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 515, the issue of causation must be determined by applying commonsense to the facts of each particular case. In Duyvelshaff v Kathcart & Richie Ltd (1973) 47 ALJR 410 Mason J (419) stated as follows:
On the issue of causation it was for the plaintiff to satisfy the court that his injuries were caused by the defendant's omission to provide a safe place or system of work or to perform his statutory duty. To do so he must show that the safety measures would have been effective and that he would have made use of them if they had been available. (also see Gibbs J (417).)
Witnesses called
Before considering the evidence presented during the trial, I believe it will be helpful if I list the witnesses called by each party, and insofar as any witness was employed by PMH, the position of employment each such witness held. The witnesses called by the parties in these proceedings were as follows.
(a) Witnesses called by the plaintiff
The witnesses called by Ms Pecenka in support of her claim were the following:
(1)Ms Pecenka herself;
(2)Ms Valerie Easthope, who was employed by the hospital as a part‑time relief assistant and a bottle washer in the Infant Formula Room;
(3)Ms Thi Huynh, who was employed by the hospital as an assistant in the Infant Formula Room; and
(4)various medical witnesses – Dr A V Bell (psychiatrist), Dr T M Fitch (psychiatrist), Dr P J Webster (general practitioner), Mr P R Honey (orthopaedic surgeon) and Dr G J Carroll (rheumatologist).
By consent a statement of Ms Lyn Tilbery dated 20 September 2000 was tendered into evidence. Ms Tilbury worked in a coffee shop at PMH. Her statement was tendered under s 79 of the Evidence Act 1903 on the basis she was unable to attend the trial due to illness.
(b) Witnesses called by the defendant
The defendant called the following witnesses:
(1)Ms Penny Hall, a senior dietician;
(2)Ms Beth Martino, who was a senior dietician and acting head of the Nutrition and Dietetics Department of the hospital;
(3)Mrs Nazlee Benjamin, who was employed by the hospital as a bottle washer in the Infant Formula Room;
(4)Ms Vicki Htun, who was employed as an assistant in the Infant Formula Room;
(5)Mrs Noretta Petrowsky, who was employed as an assistant in the Infant Formula Room;
(6)Mr Michael Tuttle, who was employed by the hospital as the acting coordinator of the Human Resources department;
(7)Mrs Kathleen Brien, who was employed by the hospital as a human resource consultant;
(8)Mr Bruce Hatfield, who was employed by the hospital as a mechanical fitter in the engineering department of PMH; and
(9)various medical witnesses – Dr T D Terace (psychiatrist) and Dr P A Connaughton (occupational physician).
Summary of relevant history of Ms Pecenka's employment
Before considering the specific elements of the claims made by Ms Pecenka, it is necessary in order to give context to these claims to set out a chronological sequence of events and detail an evolving psychiatric illness on the part of Ms Pecenka.
(a) General background
Ms Pecenka was born in Poland on 22 August 1949. In Poland she left school after completing a high school certificate equivalent to Year 12 TEE and after leaving school graduated with a Diploma of Hotel Management. After working for a hotel in Poland and then later at a travel agency, she moved to Austria in 1974 to assist in running her husband's antique business. She later worked as a managing waitress in a coffee house.
In about 1982 Ms Pecenka was divorced and in 1986 she moved to Australia. Prior to moving to Australia she was informed that she could expect to easily obtain employment in Australia due to her qualifications. However on arriving in Australia the only position of employment offered to her was a nightshift position at the Sheraton Hotel. This she did not accept because she did not wish to work nightshift. This meant that for a period of approximately three to four years she was unemployed and, according to her evidence, this caused her to become distressed and depressed. However, there was no evidence given that she received medical treatment or needed medical treatment for any psychological illness.
(b) Commencement of employment with PMH
In March 1990 Ms Pecenka applied for a position as the supervisor of the Infant Formula Room at PMH. By letter dated 10 April 1990 Ms Pecenka was offered the position conditional on producing evidence of a satisfactory level of health and fitness. To comply with this condition Ms Pecenka was required to complete a medical history form and produce a medical certificate. In the medical history form she was asked 'Are you now suffering or have you previously suffered from … mental disorders (anxiety state, depression etc)', to which she replied 'Yes'. No elaboration was given to this answer. A medical certificate produced by her and signed by a medical practitioner stated that Ms Pecenka was fit for the position of employment.
Her duties of employment were listed in the advertisement for the position as follows:
1.Supervise three Infant Formula Room assistants and two cleaners in the day to day running of the Infant Formula Room.
2.Prepare, pour and pasteurise infant formulae and special fluids for patients of the hospital.
3.Demonstrate formula preparation to parents.
Her hours of employment were covered by two shifts. One was from 7.00 am to 3.45 pm and the other from 8.00 am to 4.45 pm. The shifts were subject to a roster system.
(c) Stress leave in 1994
In about 1994 PMH amalgamated with the King Edward Memorial Hospital for Women. According to the evidence of Ms Pecenka and also Ms Martino, who gave evidence on behalf of the defendant, this amalgamation process caused considerable stress to staff. As a part of the rationalisation associated with the amalgamation, the number of staff of the Infant Formula Room was reduced by one full‑time assistant.
Ms Pecenka's evidence is that issues relating to the amalgamation came to a head personally for her when she was requested by the chief dietician (at the time a Ms Del McGuiness) to conduct a milk formula demonstration for a parent. Ms Pecenka's evidence was that on that particular day she was under extreme pressure as one of the staff was away and the relief person was not fully trained. Ms Pecenka said that when she protested that she did not have sufficient time to conduct the demonstration she was told by the chief dietician to 'make time'. Ms Pecenka said she went into shock and remembers sitting on the floor screaming where she was later discovered by Ms Martino who told her to leave and go home.
Ms Pecenka said that before going home she attended INDRAD. INDRAD was an independent counselling service provided by the hospital to its employees who could seek counselling on a confidential basis. Later this independent counselling service was provided by a company Wood Styles Australia Pty Ltd (referred to in this decision as 'Wood Styles'). Ms Pecenka said she subsequently had 10 days off work on stress leave. Ms Pecenka lodged a workers' compensation injury claim form and in her description of the cause of the injuries suffered by her she stated:
Uncontrolled outburst and nervous shock on my side [sic] caused by lack of support and understanding from superiors when under extreme pressure to provide daily supply of formulae (400 bottles) to the wards and having an unexperienced [sic] relief person as a help (due to staff cuts).
Ms Martino in her evidence confirmed that all of the staff found the amalgamation process and changes extremely stressful. She recalled the chief dietician at the time, Ms McGuiness, breaking down and crying at a meeting. Ms Martino said she recalls recommending to Ms Pecenka and other staff to seek assistance from INDRAD. Ms Martino also recalls that the staff had a session on stress management and Ms Pecenka was sent to a two-day course for supervisors.
(d) Paul Carter incident in 1996
In about 1996 a problem arose with one of the cleaners in the Infant Formula Room, a Mr Paul Carter. Ms Pecenka's evidence was that staff members had lodged complaints with Ms Martino about Mr Carter and he had lodged complaints against them. Ms Pecenka said that she had spoken to Mr Carter that he needed to be careful not to provoke the other staff members.
Ms Martino's evidence was that Ms Pecenka had raised with Ms Martino concerns about the cleanliness of bottles being cleaned by Mr Carter. Ms Martino said that when she spoke to Mr Carter he made various complaints about Ms Pecenka including he felt victimised by her, she excluded him from other workers and that Ms Pecenka had told him that the hospital preferred to employ female staff.
Ms Martino stated she concluded both were at fault. Mr Carter had a lot of anger management problems for which he was receiving counselling. Also Ms Martino said that she counselled Ms Pecenka on how to deal with Mr Carter and cautioned Ms Pecenka not to make comments that were likely to provoke a situation.
(e) Employment of Mrs Petrowsky
In August 1998 PMH employed a Mrs Petrowsky. She was employed as a part‑time assistant in the Infant Formula Room. Because she was part‑time she was only required to work a couple of days per week. Because of this and because of the structure of the rosters, Mrs Petrowsky was only rostered to work with Ms Pecenka about three to four times per month[1].
Almost immediately there were tensions between Ms Pecenka and Mrs Petrowsky. Ms Pecenka's evidence is that from the beginning she formed the opinion that Mrs Petrowsky thought she knew everything and did not listen when certain procedures were explained to her. Ms Pecenka stated that after about three months Mrs Petrowsky would ignore her. Ms Pecenka complained that when she said good morning to Mrs Petrowsky, Mrs Petrowsky would reply 'could be better'. Ms Pecenka also complained that when she asked staff 'Who wants a drink, water or juice?', Mrs Petrowsky would reply 'Not from you'[2].
Ms Pecenka's evidence was that Mrs Petrowsky stopped talking to her and when she asked her why she would not talk to her that Mrs Petrowsky simply replied 'You know very well'. Ms Pecenka said that Mrs Petrowsky also threatened to lodge a complaint of harassment against Ms Pecenka and threatened that this would affect Ms Pecenka's reputation[3].
Mrs Petrowsky in her evidence said that her personality was different to Ms Pecenka. She claimed that Ms Pecenka often made derogatory comments calling her 'Ms Perfect' or 'Dancing Queen'. Ms Pecenka denied making these comments.
Both Ms Pecenka and Mrs Petrowsky made allegations of the other making offensive racist comments. Ms Pecenka complained that Mrs Petrowsky's made adverse comments about Asians and stated they stole jobs from other Australians[4]. Mrs Petrowsky in her evidence said she was told by another staff member that Ms Pecenka had made comments about Ukrainians during World War II. This upset Mrs Petrowsky as her husband is Ukrainian and so Mrs Petrowsky retaliated by commenting that the Polish people killed a lot of Ukrainians in the war[5]. She also told Ms Pecenka that 'if she didn't wash her mouth out' Mrs Petrowsky would report her to the Human Resources department of the hospital[6].
Mrs Easthope and Ms Huynh, were called as witnesses on behalf of Ms Pecenka. Both were employed in the Infant Formula Room at all relevant times. They supported the evidence of Ms Pecenka that Mrs Petrowsky was a difficult person to get along with. Ms Easthope was particularly critical saying that Mrs Petrowsky was abusive and refused to follow instructions. Both Mrs Easthope and Ms Huynh in their evidence spoke highly of Ms Pecenka. A further witness called by the defendant, Ms Benjamin, said that prior to Mrs Petrowsky being employed there was a pleasant atmosphere in the Infant Formula Room but after Mrs Petrowsky was employed she heard arguments between Ms Pecenka and Mrs Petrowsky.
On the other hand another Infant Formula Room worker, Ms Htun, said she did not experience any difficulties with Mrs Petrowsky.
Ms Martino in her evidence said that the Infant Formula Room was located in a quite isolated section of the hospital. Her experience was that there were often tensions in the Infant Formula Room. She explained this arose partly out of the fact that their tasks were important but repetitive in nature. They worked in a close environment. She said that Ms Pecenka had been a good supervisor in terms of ensuring procedures were correctly followed, but in Ms Martino's opinion, Ms Pecenka liked drama and tended to exaggerate things. In her opinion, Ms Pecenka had difficulty differentiating between major and minor issues[7].
(f) Anxiety attacks of Ms Pecenka in early 1999
Ms Pecenka's evidence is that she started experiencing palpitations and anxiety attacks at the beginning of 1999. She attributed this to the ongoing conflict she was having with Mrs Petrowsky. The evidence of Dr Webster, her general practitioner, is that Ms Pecenka consulted him concerning anxiety and high blood pressure in December 1998.
According to Ms Pecenka she did not have much to do with Mrs Petrowsky throughout the remaining part of 1999 as Ms Pecenka took long service in 1999[8].
(g) Bill Clinton argument in November 1999
Ms Pecenka's evidence was that in November 1999 there was an incident in the lunchroom. Ms Pecenka and Mrs Easthope were discussing the scandal involving President Bill Clinton and Monica Lewinsky. Ms Pecenka said that Mrs Petrowsky came into the room and started expounding a view that it was a conspiracy against Mr Clinton and that Ms Lewinsky was a spy for Russia. Ms Pecenka said Mrs Petrowsky started screaming and lecturing them about the conspiracy. Ms Pecenka said she put her hands over her head and said 'Stop it, I can't bear this any more'. In response Mrs Petrowsky jumped from a bench she was sitting on, approached Ms Pecenka and pulled away Ms Pecenka's hands from her ears and screamed 'You have to listen when I am talking'. Ms Pecenka stated that Mrs Petrowsky kept screaming and then left the room. Mrs Easthope in her evidence confirmed that Mrs Petrowsky started screaming in defence of President Clinton and then left the room slamming the door. However she did not mention Mrs Petrowsky approaching Ms Pecenka and removing her hands from her ears[9].
Mrs Petrowsky in her evidence said that she did not recall any specific incident but said there had been discussions over several days about the Clinton/Lewinsky matter. She conceded under cross‑examination that she may have removed Ms Pecenka's hands from her ears but denied that she ripped them off[10]. She also disputed that she was screaming and said that people in the Infant Formula Room often talked in raised voices.
Ms Pecenka stated that she did not report the incident at the time as she believed she was the supervisor and she could not run to her superiors over every issue[11].
(h) Complaints to Penny Hall in March 2000
Ms Pecenka says that in March 2000 she raised with Ms Hall problems that they were experiencing in the Infant Formula Room. Ms Pecenka said she told Ms Hall that the situation was causing Ms Pecenka anxiety, sleeplessness and affecting her health[12].
Ms Hall in her evidence stated that she could not recall any such matters being raised in staff meetings[13].
Mrs Easthope could not recall if she ever complained to Ms Martino or Ms Hall about Mrs Petrowsky's behaviour[14].
April 2000 (lipstick and voodoo doll incidents)
Ms Pecenka in her evidence said that in April 2000 Mrs Petrowsky, although not directly accusing Ms Pecenka, had implied that Ms Pecenka had stolen her lipstick[15].
Mrs Petrowsky in her evidence said that she thought that the other workers had stolen her lipstick but acknowledged that she later found the lipstick in her bag which had fallen down a rip in the lining of the bag. She denied in her evidence that she accused anyone of stealing the lipstick, although she admitted that she had become very upset because she felt they had stolen it. She said that she found in the cupboard on that day a doll made of a pop stick, a white lolly bag and straw[16]. She believed the others were trying some sort of voodoo against her. She said it was very upsetting to her and she felt that Ms Pecenka as the supervisor would have known about it and should have removed it[17]. Ms Pecenka in her evidence said that the doll was a type of doll given to various staff members as a gift by a lady working in the coffee room. They were little dolls meant to be like scarecrows. She admitted that she found the suggestion that it was meant to be a voodoo doll as nonsense[18].
(j) King Edward Memorial Hospital incident (May 2000)
Ms Pecenka's evidence was that in May 2000 while she was having lunch with Mrs Easthope and a friend of Mrs Easthope's (Ms Tilbury), they were discussing a front page newspaper story about King Edward Memorial Hospital and problems it was having with doctors at the hospital. Mrs Easthope was reading the story aloud. Mrs Petrowsky came running into the room holding an industrial whisk in her hand and started screaming that the article was rubbish, the doctors were not at fault and it was the fault of the nurses. Ms Pecenka described Mrs Petrowsky as being in a rage. Ms Pecenka said that she was so shocked by Mrs Petrowsky's behaviour that she froze and was unable to respond initially but eventually said to Mrs Petrowsky to get back to work. Ms Pecenka said that Mrs Petrowsky left but then returned a short time later screaming at her 'You should be sorry for not letting me to speak'. Ms Pecenka said she responded by saying 'Shut up, go back to work'. Ms Pecenka said that Mrs Petrowsky went back to work but turned up the radio so loud that Ms Pecenka and the others could not continue their conversation. Ms Pecenka said she went to investigate and found that Mrs Petrowsky had left the room. She was gone for about 45 minutes. When she returned and was asked where she had been she replied to Ms Pecenka 'None of your business'[19].
A short time later Ms Hall, the senior dietician, arrived and told Ms Pecenka that Mrs Petrowsky had been to see her and complained about Ms Pecenka's behaviour. Mrs Petrowsky complained she had been told to shut up and had not been given an opportunity to express her views. Ms Pecenka's evidence was that she informed Ms Hall of her version of the incident. Ms Pecenka said Ms Hall would have seen that Ms Pecenka was shaking and 'teary'[20]. She told Ms Hall that she had to do something about the situation and that Ms Pecenka's work performance was being affected by the ongoing conflict with Mrs Petrowsky. Ms Pecenka said Ms Hall told her she did not know what to do[21].
Ms Tilbury in her written statement tendered into evidence largely confirmed Ms Pecenka's description of what occurred, although Ms Tilbury stated that both Ms Pecenka and Mrs Petrowsky were yelling at each other.
Mrs Petrowsky in her evidence said that when she tried to explain to Ms Pecenka that the doctors at King Edward Memorial Hospital had to deal with the most difficult pregnancies, Ms Pecenka went into a rage and told her to shut up. Mrs Petrowsky said as she left she slammed the door. Mrs Petrowsky admitted she was upset and was crying. She said the telephone rang but she was too upset to talk and eventually went to see Ms Hall in her office.
The taxation of Ms Pecenka's costs is likely to present her with considerable difficulties. The taxation of costs of a lengthy trial can be very complex, involving both difficult legal and accounting issues. Ms Pecenka is currently unrepresented. The taxation of her costs will be immeasurably more difficult by the fact that it appears she no longer has a working relationship with her former solicitors, Hammond Legal. Given these difficulties I believe I should make orders which reduce the burden of the taxation process. With this in my mind I believe justice is best served by making one single order for costs. Again, taking a broad approach, I believe it is reasonable to assume the total taxed costs of both parties would be the same. The difference in the percentages I have mentioned above [55% and 70%] is 15% in favour of the defendant. Accordingly, subject to an adjustment for disbursements, I believe I should make a single order that Ms Pecenka pay 15% of the defendant's costs.
I believe that in taxing costs no allowance should be included in the disbursements of the defendant for the evidence of Dr Connaughton who gave evidence on behalf of the defendant in relation to the right arm/shoulder injury claim. However, I am prepared to allow the defendant the full disbursements relating to the evidence of Dr Terace. Likewise, I believe an order in Ms Pecenka's favour should be made for the disbursements relating to the evidence presented through the witnesses Mr Honey and Dr Carroll [both of whom gave evidence on the right arm/shoulder claim] and two‑thirds of the disbursements relating to the evidence of Dr Webster [who gave evidence on all three causes of action].
Reserved costs
The defendant has also sought an order that the plaintiff Ms Pecenka pay any reserved costs. Order 66 r 50 of the Rules of the Supreme Court 1971 provide that where the court reserves the costs of an interlocutory matter, those costs are not allowed to a party without an order of the court.
I gave liberty for both parties to file supplementary written submissions on this issue so as to identify and consider what orders had been made for reserved costs. Ms Pecenka filed a supplementary submission which did not address this issue but rather reiterated submissions concerning the Calderbank offer. The defendant also filed submissions but failed to identify any interlocutory order where an order was made that costs be reserved. However, the court records of the action indicate that on 7 July 2009 Registrar Kingsley at a directions hearing reserved costs of the appearance. On that date the plaintiff Ms Pecenka was granted an extension of time in which to serve expert reports. No submissions were presented by the defendant as to why these reserved costs should be awarded to the defendant in any event, but it would seem it is strongly arguable that as the deputy registrar granted Ms Pecenka an indulgence the costs should be awarded to the defendant.
The written submissions of the defendant referred to an outstanding costs application before his Honour Judge Eaton. On 13 November 2009 his Honour heard an application by the plaintiff Ms Pecenka to vacate trial dates which had been set from 23 November 2009 to 11 December 2009. The application was made on the basis that Ms Pecenka was unrepresented (her previous solicitors CLP Legal had obtained an order declaring that they cease to act on behalf of Ms Pecenka) and due to her mental state she was unable to represent herself. His Honour granted an order vacating the trial dates but adjourned sine die the question of whether the defendant should be granted an order that Ms Pecenka pay to the defendant any costs thrown away by the vacating of the trial dates. The matter came back before his Honour on 10 December 2009 when he heard further submissions on the issue of the application by the defendant for costs thrown away by the adjournment of the trial, but his Honour further adjourned the matter. At no time did his Honour make an order that costs be reserved. It appears the costs application remained adjourned sine die part‑heard by his Honour Judge Eaton. In my opinion, it would be inappropriate for me to make an award for the costs relating to the application to vacate the trial listed to commence on 23 November 2009, the application for costs having been part‑heard by his Honour Judge Eaton.
The submissions of the defendant also referred to a number of interlocutory applications which came before the court prior to trial when orders were made that costs be in the cause. In light of the mixed result in relation to the three causes of action and the broad approach I have taken to award the defendant 15% of its costs of the action, I believe I should further order that any costs in the cause awarded during interlocutory proceedings be treated as costs of the action of the defendant.
I also believe in the exercise of a the wide discretion that exists in relation to costs, I should also order that the defendant's costs of the action include the reserved costs of 7 July 2009 and the costs of appearances subsequent to the delivery of my reasons for judgment on 2 November 2010.
Application for set-off
It is clear on the orders that I have made in relation to costs that the judgment sum of $20,000 will be reduced or extinguished following taxation of the costs that I have ordered. There will then be a diminished sum or no sum at all to be recovered by the plaintiff, Ms Pecenka. Pursuant to O 66 r 7 of the Rules of the Supreme Court 1971 an order may be made for a set‑off of costs against the judgment amount: Macketic v Osmanbasic & Anor [2001] WADC 106 (Charters DCJ).
In the circumstances of this case I believe it is appropriate that I make an order for a set‑off.
Summary of costs orders
Accordingly, I propose the following costs orders:
1.The defendant pay the disbursements of the plaintiff Ms Pecenka relating to the preparation of expert reports and the attendance at trial as follows:
(a)the reports fees and attendance at trial fees of Mr Honey;
(b)the report fees and attendance at trial fees of Dr Carroll;
(c)two‑thirds of the report fees and attendance at trial fees of Dr Webster.
2.The plaintiff Ms Pecenka pay the disbursements of the defendant relating to the report fees and attendance at trial fees of Dr Terace.
3.The plaintiff Ms Pecenka pay 15% of the costs of the action of the defendant, if not agreed, then taxed.
4.The costs of the action of the defendant to include:
(i)any interlocutory awards of costs in the cause and the reserved costs of 7 July 2009;
(ii)all appearances before the court after 2 November 2010.
5.The costs of the action of the defendant are not to include disbursements relating to the report fees and the attendance at trial fees of Dr Connaughton.
6.The plaintiff's liability to the defendant for costs as per these orders be set off against the payment of the judgment sum payable by the defendant and the defendant's liability for the plaintiff's disbursements as per these orders.
7.Execution on the judgment be stayed until costs as per the terms of this order are agreed or failing agreement, taxed.
8.There be liberty to apply in relation to the stay order.
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[48] ts 232
[49] ts 1096
[50] ts 1102
[51] ts 234
[52] ts 935, ts 1159
[53] ts 236
[54] ts 242
[55] ts 1159
[56] ts 242
[57] ts 244
[58] ts 252
[59] ts 629
[60] ts 733
[61] ts 734
[62] ts 628
[63] ts 469
[64] ts 737
[65] ts 1118
[66] ts 737, ts 1118
[67] ts 738, ts 1171
[68] ts 140 - 1
[69] ts 143
[70] ts 149
[71] ts 150
[72] ts 151
[73] ts 748
[74] ts 751
[75] ts 748
[76] ts 751
[77] ts 1121
[78] ts 152
[79] ts 486
[80] ts 754
[81] ts 754
[82] ts 154-155
[83] ts 916
[84] ts 755, ts 846
[85] ts 524
[86] ts 755
[87] ts 159
[88] ts 995
[89] ts 917
[90] ts 920
[91] ts 293, ts 767
[92] ts 1123
[93] ts 1124
[94] ts 287, ts 1124
[95] ts 287
[96] ts 164
[97] ts 285
[98] ts 290 - 1
[99] ts 292
[100] ts 1309
[101] ts 790
[102] ts 117
[103] ts 832
[104] ts 122
[105] ts 832
[106] ts 571
[107] ts 749
[108] ts 750
[109] ts 863
[110] ts 781
[111] ts 870
[112] ts 869
[113] ts 156, ts 561
[114] ts 755
[115] ts 755
[116] ts 116
[117] ts 143
[118] ts 495
[119] ts 147
[120] ts 882
[121] ts 484
[122] ts 485
[123] ts 633
[124] ts 655
[125] ts 643
[126] ts 648
[127] ts 376
[128] ts 884
[129] ts 378
[130] ts 379
[131] ts 486
[132] ts 572
[133] ts 994, ts 1079
[134] ts 1079
[135] Exhibit 24, p561
[136] ts 880
[137] ts 374
[138] ts 863
[139] ts 66 - 7
[140] ts 64
[141] ts 68
[142] ts 636
[143] ts 989
[144] ts 1020
[145] ts 1041
[146] ts 1067
[147] ts 665
[148] ts 667
[149] ts 668
[150] ts 675
[151] ts 681
[152] ts 592
[153] ts 593 - 4
[154] ts 599
[155] ts 611
[156] ts 612
[157] ts 613
[158] ts 620
[159] ts 622
[160] ts 1212
2
16
2