Robinson v Each Ltd
[2024] VSCA 313
•12 November 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0046 |
| MARY VICTORIA ROBINSON | Applicant |
| v | |
| EACH LTD (ACN 136 804 290) | Respondent |
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| JUDGES: | MACAULAY JA, GORTON and J FORREST AJJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 October 2024 |
| DATE OF JUDGMENT: | 12 November 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 313 |
| JUDGMENT APPEALED FROM: | [2024] VCC 365 (Judge Purcell) |
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NEGLIGENCE – Duty of care – Foreseeability of risk of psychiatric injury – Vicarious trauma – Mental health support worker – Alleged unreasonable exposure to vicarious trauma during home visits and after return to work in administrative capacity – Whether judge erred in finding risk of injury was foreseeable at date employee first disclosed psychological trauma to employer – Undisputed evidence that employer was aware of vicarious trauma and inherent risk to employees performing applicant’s role prior to date of disclosure – Breach – Whether judge erred in finding employer responded reasonably to disclosure and made appropriate return to work arrangements – No error – Employer response reasonable – Employee’s further exposure to vicarious trauma outside return to work arrangements – Leave to appeal granted – Appeal dismissed.
Wyong Shire Council v Shirt (1980) 146 CLR 40, applied.
New South Wales v Fahy (2007) 232 CLR 486; Vairy v Wyong Shire Council (2025) 23 CLR 422; Kozarov v Victoria (2022) 273 CLR 115; Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44; Karzi v Toll Pty Ltd [2024] NSWCA 120; Bersee v State of Victoria (Department of Education and Training) (2022) 70 VR 260; Rosenberg v Percival (2001) 205 CLR 434, discussed.
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| Counsel | |||
| Applicant: | Mr A Clements SC with Mr J O’Connor and Ms A Smietanka | ||
| Respondent: | Mr S Gladman SC and Ms GJ Cooper | ||
Solicitors | |||
| Applicant: | Zaparas Lawyers | ||
| Respondent: | Wisewould Mahony | ||
TABLE OF CONTENTS
Introduction
Factual background — in precis
Procedural history
The pleaded case
The respective cases at trial
Ms Robinson’s case
EACH’s case
Evidence at trial
The judge’s reasons
Proposed grounds of appeal
EACH’s concession and its notice of contention
The hearing of the appeal
Events leading up to Ms Robinson ceasing work in November
2014
January and February 2015
April to November 2015
Expert evidence
Grounds 2, 2A , 8 and the notice of contention — consideration
The other proposed grounds of appeal
Conclusion
MACAULAY JA
GORTON AJA
J FORREST AJA:
Introduction
EACH Ltd (‘EACH’) provides a range of health, disability, counselling and community mental health services across Australia.
Mary Victoria (‘Vicky’) Robinson was employed by EACH as a carer peer support worker between November 2007 and November 2015.[1] For most of this time, this required her to consult with, and listen to, the experiences of carers and provide them with support in clinical and community settings, however in January 2015 this changed to include attendance at the homes of carers.
[1]Ms Robinson did some work for EACH prior to November 2007 in an ad hoc capacity however this was not the subject of this proceeding.
On Wednesday 11 February 2015, Ms Robinson attended a trauma-informed training session which included a session concerning vicarious trauma and its effects.
By the following Tuesday, she had psychological issues which she related to the effects of vicarious trauma. She told her team leader that she was having problems and worked on until the Tuesday of the next week. She was then certified unfit for her usual duties by her local general practitioner. After two months off work, she returned on modified duties for seven months. After roughly three months off work, she made a second attempt to return to work, however this only lasted a few weeks, and she then ceased work with EACH. She has not worked since.
In June 2021, Ms Robinson issued a proceeding against EACH alleging it breached its duty of care by requiring her to work in situations that were inimical to her mental health, particularly so after 17 February 2015 — the day upon which she told her team leader of her issues.
After a seven day trial before a judge in the County Court, the judge dismissed her claim.[2] She now seeks leave to appeal that decision. As we will explain, arising from nine proposed grounds of appeal, a concession made as to one of those grounds, and a notice of contention, the primary issues argued on the appeal were:
(a)What was the foreseeable risk of injury to Ms Robinson and when did it become apparent?
(b)Whether EACH’s response to the foreseeable risk of injury to Ms Robinson was that of a reasonable employer; and
(c)If not, what, if any, damage had Ms Robinson sustained as a result of that breach?
[2]Robinson v EACH [2024] VCC 365 (Judge Purcell) (‘Reasons’).
Factual background — in precis
Ms Robinson was initially employed on a part-time basis by EACH as a carer peer support worker on 26 November 2007 as part of a program of services provided by EACH in the central eastern and outer eastern suburbs of Melbourne.
The carers to whom support was given by such support workers provided care to persons (usually relatives) with a range of physical and intellectual disabilities, mental illness and developmental disorders.
EACH was contracted by a number of health services to provide the carer support services upon receipt of referrals. It did so by establishing teams that worked with the different health services, so that an employee could work within two or more teams — as Ms Robinson did.
Ms Robinson had suffered from psychological issues, sadly, for much of her life. Since 2010, she had been treated periodically by Ms Imelda Westworth, a psychologist, for anxiety and depression. Over the ensuing years, her condition improved, and she ceased therapy in October 2013. From that time until January 2015, she was ‘managing very well’. She was prescribed Lovan by her general practitioner, Dr Monika Berghofen, in August 2013, which she continued to take up until the time she claimed to have suffered injury with EACH.
When she started her employment in November 2007, Ms Robinson was working nine hours per week across one and a half days, in a clinical setting at Eastern Health. She did not attend carers’ homes.
In August 2013, Ms Robinson increased her working hours to around 25 hours per week, comprising her existing nine hours of work in a clinical setting at Eastern Health and an additional 16 hours of work (two days a week) in a community setting with Knox. She did not attend carers’ homes.
In late 2014, Ms Robinson sought to increase her hours to full-time. This was accepted and she was allocated work with South Eastern, another EACH client.
From 6 January 2015, Ms Robinson increased her working hours to that of full-time employment, working with the three separate health services. She continued to work nine hours a week in a clinical setting at Eastern Health and two days per week with Knox, in a community setting. In addition, she was engaged for two additional days per week with South Eastern, also in a community setting — but for the first time, part of her duties included attending the homes of her carer clients and the persons who were receiving care from her carer clients, and attending community activities and meetings where the person requiring care was present.
On 16 January 2015, Ms Robinson was observed at work to be ‘quite upset’.
On 20 January 2015, Mr John Rickard, an employee of EACH and Ms Robinson’s team leader, sent an email to EACH employees, including Ms Robinson, about an upcoming training session dealing with trauma, which included a session concerning vicarious trauma.
The trial appears to have been conducted on the basis that everyone understood the meaning of the expression ‘vicarious trauma’. As we understand it, the trauma is that of a person hearing (in this case) about the traumatic experience of others however that person is not directly involved in the trauma. It was not in issue that Ms Robinson would, from time to time during the entire course of her employment with EACH, hear distressing stories of trauma experienced by carers whom she was supporting.
Ms Robinson attended the training session on Wednesday 11 February 2015, which was conducted by Ms Jenni Thompson, a psychologist.
On Tuesday 17 February 2015, Ms Robinson had a conversation with Mr Rickard, at which she told him that she was struggling with the work and was tearful. She said that she believed she was suffering from vicarious trauma. Mr Rickard immediately ceased any new referrals to Ms Robinson with the intention, however, that she would continue to attend upon her existing clients.
Ms Robinson worked on Wednesday 18 February 2015 and Thursday 19 February 2015. She did not work on Friday 20 February 2015 but worked the following Monday 23 February 2015 and Tuesday 24 February 2015. On the morning of Wednesday 25 February, she attended her general practitioner, Dr Berghofen, who certified her as unfit for her usual work. She was unable to work for the next two months.
Between 20 April and 23 November 2015, Ms Robinson returned to work with EACH undertaking administrative duties. Ms Robinson said that during this time she had direct contact with clients and client information which was in contravention of her return to work arrangements. In particular, she said that she screened calls for the critical incidents manager. This was disputed by her supervisors.
In mid-February 2016, Ms Robinson made a further attempt to return to work in a clerical capacity as an administrator within the corporate services team working a few hours a week and gradually increasing her hours, however this only lasted a few weeks. She has not worked since.
Procedural history
By writ filed in the County Court of Victoria on 22 June 2021 and her amended statement of claim dated 23 June 2022 (‘statement of claim’), Ms Robinson sought damages for psychological injuries she alleged were sustained in the course of her employment. She alleged her injuries were caused by EACH’s negligence.
The trial of the proceeding commenced on 4 December 2023 before Judge Purcell sitting alone. The hearing occupied seven sitting days.
The judge delivered his reasons for judgment on 28 March 2024 and, on 8 April 2024, orders were made dismissing the proceeding and requiring Ms Robinson to pay EACH’s costs on a standard basis.
The pleaded case
In her statement of claim, Ms Robinson alleged that:
(a)EACH owed her a non-delegable duty to ensure that reasonable care was taken to avoid exposing her to a foreseeable risk of psychiatric injury;
(b)during her employment between 26 November 2007 and November 2015, and particularly from January 2015 onwards, EACH required her to support carers of relatives with physical and intellectual disabilities, mental illness and developmental disorders, including at home visits and community activities (described as Ms Robinson’s ‘work duties’);
(c)it was reasonably foreseeable to EACH that there was a risk that the work duties could cause psychiatric injury;
(d)the injury, loss and damage suffered by Ms Robinson was caused by the negligence and/or breach of duty by EACH, its servants and/or agents; and
(e)Ms Robinson has suffered and continues to suffer loss and damage as a result of her claimed injuries.
In its defence, EACH essentially denied Ms Robinson’s claim that it owed her an unidentified non-delegable duty to take reasonable care to avoid exposing her to a foreseeable risk of psychiatric injury. Further, EACH denied that any identifiable duty of care was engaged because it was not given notice of Ms Robinson being at risk of suffering a foreseeable psychiatric injury.
The respective cases at trial
Ms Robinson’s case
Although it was said to be a case involving a ‘continuum’ of breach, Ms Robinson’s case in reality related to three separate periods of alleged breach by EACH.
First, as a carer peer support worker from 2007 to February 2015. It was advanced on her behalf that, prior to 17 February 2015, the ‘inherent nature of her duties’ was such that EACH should have recognised that she, and presumably other carer peer support workers, were at risk of suffering psychiatric illness, as a result of which EACH ought to have provided vicarious trauma training during the course of her employment. EACH should have provided supervision, instruction, training and debriefing policies relating to the risk of psychological injury from vicarious trauma.
Second, between 16 January and 25 February 2015. It was asserted that as a result of Ms Robinson being seen at work ‘quite upset’ on 16 January, or alternatively, as a result of a discussion on 17 February when she spoke to her supervisor Mr John Rickard and advised him of her anxiety which she attributed to vicarious trauma, EACH should have been alerted to Ms Robinson’s specific risk of suffering psychiatric illness. EACH should immediately have cut off client contact for Ms Robinson and organised a medical assessment. It did not and she continued to work on normal duties until the following Wednesday when she saw her general practitioner.
Third, when Ms Robinson returned to work in an administrative role between April and November 2015, the return to work plan was negligently implemented, as she was exposed to general continuing exposure to client information including one distressing phone call and people yelling in the waiting room, all of which caused her psychological distress, ultimately leading to her ceasing work.
Ms Robinson relied upon the expert report of a consultant psychiatrist, Dr Justin Lewis, to support these assertions.
EACH’s case
EACH argued that Ms Robinson received appropriate training, support and supervision. In particular, although Ms Robinson did not receive vicarious trauma training prior to 2015, the elements of that training were covered in various previous courses. In any event, it contended that there is no evidence that had vicarious trauma training been delivered earlier, Ms Robinson would not have suffered psychiatric injury or that such training would have ameliorated her injury.
It then argued that Mr Rickard’s decision to cease all new referrals to Ms Robinson and effectively cap her workload was reasonable and that EACH’s response to the risk of vicarious trauma was appropriate in the circumstances. It said that it had provided appropriate induction training and supervision during the course of her employment and particularly when she undertook the South Eastern work.
EACH contended that, upon Ms Robinson’s return to work, placing her on administrative tasks with no client contact was entirely reasonable and adequately implemented.
Finally, it was argued that Ms Robinson had not established that any earlier intervention by EACH (be it in the form of debriefing or removal from client contact) would have avoided or reduced the risk of injury and that Ms Robinson’s medical evidence, including that of the expert, Dr Lewis, failed to address the issue.
Evidence at trial
At trial, on her behalf only, Ms Robinson gave evidence that went to the issue of the liability of EACH. The other witnesses called by her, Brendan McDonald (her brother-in-law) and Virginia McDonald (her sister), gave ‘before and after’ evidence, and the balance of Ms Robinson’s case was established by the tender of documentary and medical evidence.
The following provided medical evidence (in the form of reports):
(a)Dr Justin Lewis, a consultant psychiatrist — who also opined as to EACH’s liability for Ms Robinson’s injuries;
(b)Ms Imelda Westworth, a psychologist;
(c)Dr Monika Berghofen, a general practitioner;
(d)Dr Krisztina Tibad, a psychiatrist; and
(e)Dr Nathan Sherry, a consultant psychiatrist.
EACH’s witnesses who gave oral evidence relevant to liability were:
(a)Sherisse Goodwin, a project and data lead;
(b)John Rickard, a team leader;
(c)Michael Quaass, manager of the transition and quality team;
(d)Deborah Stanley, a program area manager;
(e)Lisa Gort, area manager for mental health community support services; and
(f)Jason Fitzgerald, acting team leader.
In addition, the following gave medical evidence (in the form of reports):
(a)Professor Ivor Jones, a consultant psychiatrist;
(b)Dr Hillol Das, a consultant psychiatrist;
(c)Dr Steven Stern, a psychiatrist; and
(d)Dr Richard Prytula, a consultant psychiatrist.
The judge’s reasons
The judge identified the ‘main issue for resolution’ as being whether the inherent nature of Ms Robinson’s work meant that EACH should have reasonably foreseen the risk of her suffering a psychiatric injury.[3]
[3]Reasons, [5].
After considering the evidence, the judge rejected the proposition that ‘the inherent nature of [Ms Robinson’s] work was such that [EACH] should have reasonably foreseen the risk of her suffering a psychological injury’.[4] His Honour held that:
The carer peer support role – with or without the requirements for home visits, both before and after 6 January 2015 – did not carry with it an inherent risk of psychiatric injury from vicarious trauma.[5]
[4]Reasons, [406].
[5]Reasons, [288].
Although the judge recognised that Ms Robinson ‘diligently performed a job that could at times be challenging, or hard’, his Honour held that that was ‘a step below a finding that [Ms Robinson] did a job that had an inherent risk of psychiatric injury’.[6] In his conclusion, the judge held that:
The plaintiff never displayed evident signs of emotional distress before 17 February 2015, when she told Mr Rickard she was struggling. While that is not necessarily conclusive for the questions of scope of duty and breach of duty, it is an important factual consideration where, in my assessment, the nature and intensity of the plaintiff’s work did not otherwise carry an obvious risk of psychiatric injury from exposure to vicarious trauma.
The evidence supports a conclusion that the plaintiff began to struggle in part because of the move to full-time employment, or the workload, as she said to Mr Rickard on 17 February 2015, which prompted him to immediately cease any new referrals.
It is hard to escape a sense that the plaintiff’s case about the inherent nature of her duties as a carer peer support worker carrying a risk of vicarious trauma was one that was shaped with the benefit of ‘litigious hindsight’, that is, because she suffered vicarious trauma after the trauma training the defendant must have known of the risk. In my opinion, the evidence does not support such a conclusion.[7]
[6]Reasons, [413]. See also [265]–[267].
[7]Reasons, [399]–[401].
However, the judge was of the view that once Ms Robinson informed EACH — through her discussion with Mr Rickard on 17 February 2015 — that she was ‘struggling’ or ‘struggling with the workload’ (as his Honour variously described her disclosure),[8] EACH was put on notice about the risk of her suffering a psychiatric injury and its duty of care was enlivened on that date.[9] In other words, ‘sufficient evidence of the reasonable foreseeability of [Ms Robinson] suffering a psychiatric injury did not exist before 17 February 2015’.[10]
[8]Reasons, [408].
[9]Reasons, [294]–[295], [407].
[10]Reasons, [393].
Then, on the question of breach, the judge held that EACH acted reasonably in response to Ms Robinson’s disclosure that she was struggling with her workload.[11] In particular, EACH immediately stopped new referrals of clients to Ms Robinson[12] and upon her return to work she was allocated administrative tasks.[13] The judge held that the response by EACH was appropriate and, further, that there was no evidence that any different approach would have resulted in a different outcome.[14]
[11]Reasons, [324], [408].
[12]Reasons, [301].
[13]Reasons, [308]–[309], [408].
[14]Reasons, [408].
In the result, the judge held that Ms Robinson had failed to establish that there was negligence on the part of EACH which was a cause of her injury, loss or damage, and dismissed her claim.[15]
[15]Reasons, [414]–[415].
Proposed grounds of appeal
Ms Robinson’s nine proposed grounds of appeal (‘grounds’) are that:
(a)The judge erred in failing to draw a Jones v Dunkel[16] inference against EACH, which is material to the finding that EACH was, prior to 11 February 2015 (being the date of the trauma-informed training session), aware of the concept of vicarious trauma but unaware that the carer peer support role carried an inherent risk of vicarious trauma (ground 1).
(b)The judge erred in finding that EACH responded appropriately after 20 February 2015 and that there was no evidence upon which to make such a finding. The judge failed to make the only finding available on the evidence, which is that Ms Robinson continued to be exposed to distressing information on 23 and 24 February 2015 (ground 2).
(c)Despite the matters raised in ground 2 and on the basis that the trial judge accepted that Ms Robinson was exposed to further distressing information on 23 and 24 February 2015, the judge erred in failing to find that this further exposure of Ms Robinson to further distressing information was a breach of the respondent’s duty of care to Ms Robinson, and that that was not a cause of her injury (ground 2A).
(d)The judge erred in failing to taking into account the totality of the evidence of Mr Rickard and erred in finding that EACH was ‘aware of the concept of vicarious trauma’, but unaware that the carer peer support role carried an inherent risk of vicarious trauma (ground 3).
(e)The judge failed to properly consider the expert opinion of Dr Lewis on the question of whether it ought to have been reasonably foreseeable to EACH that Ms Robinson’s duties caused a risk of psychiatric injury (ground 4).
(f)By taking into account the fact that Ms Robinson had not suffered psychological injury earlier in the course of her employment due to vicarious trauma and her work duties, the trial judge took into account an irrelevant consideration or applied the incorrect legal test to determine whether a duty of care existed — it was a consideration that was material to the trial judge (ground 5).
(g)The judge failed to deal with the evidence led and submissions made in respect of the submission that an inference should be drawn from the fact of the provision of vicarious trauma training being that it was introduced because of an acceptance or knowledge by EACH that the work or role gave rise to said risk. Alternatively, the judge provided inadequate reasons (ground 6).
(h)The judge failed to deal with the evidence led and submissions made in respect of whether Ms Robinson’s duties as a carer peer support worker, including home visits, carried with them the risk of vicarious trauma. Alternatively, the judge provided inadequate reasons or failed to afford Ms Robinson procedural fairness by ruling that he would confine the case so prior to handing down his judgment (ground 7).
(i)The judge failed to consider whether EACH was aware that Ms Robinson was having ongoing engagement with traumatic client information between April to November 2015 (ground 8).
[16](1959) 101 CLR 298.
EACH’s concession and its notice of contention
In its written submissions, EACH accepted that ground 3 was made out: the judge’s finding that it was unaware that the carer peer support role carried an inherent risk of vicarious trauma and therefore there was no foreseeability of the risk of injury, was erroneous.
However, by its notice of contention, EACH argues that if, as it accepts to be the case, the risk of psychiatric injury to Ms Robinson was reasonably foreseeable before 17 February 2015 (the complaint underlying ground 3), there was still no breach of duty by EACH as the risk of injury to Ms Robinson only materialised on 17 February (as found by the judge) and its response was appropriate.
The hearing of the appeal
At the hearing of the appeal, it became clear that the primary issues, notwithstanding EACH’s concession as to the validity of ground 3, were the three questions identified above at [6].
In effect, the resolution of these questions involves determination of grounds 2, 2A and 8. Indeed, the other grounds either fall away or go nowhere in the resolution of this application.
Both parties agreed that should the notice of contention be resolved in EACH’s favour, the appeal should be dismissed. On the other hand, if it failed and breach and damage were established by Ms Robinson, then it would be necessary to remit the proceeding to the County Court for the assessment of damages.
In our view, EACH’s concession on ground 3 is made out, and we accordingly grant leave to appeal on that ground — the judge was in error in concluding that the risk of injury was only foreseeable by EACH on 17 February 2015, when Ms Robinson advised Mr Rickard of her psychological trauma.[17] It was clear from the undisputed evidence of Mr Rickard that EACH was aware of vicarious trauma and the issues it might cause employees, five years prior to February 2015. The foreseeability of risk to the ‘class’ was based on the inherent nature of the work — not from any specific observation of warning signs of Ms Robinson personally. Of course, this awareness of a risk to a class of employees (including Ms Robinson) does not of itself mean that EACH breached any duty to Ms Robinson. Nor does the judge’s error on this issue mean that he was in error on the other issues he determined.
[17]Reasons [267], [273], [279], [288].
Events leading up to Ms Robinson ceasing work in November
It is now necessary to return, in some detail, to the events leading up to Ms Robinson’s conversation with Mr Rickard on 17 February 2015 and in the period shortly afterwards. This is taken from both the judge’s unchallenged findings and the evidence adduced at the trial.
2014
During 2014, as explained at [12] to [14] above, Ms Robinson worked 25 hours per week in both clinical and community settings.
In evidence-in-chief, Ms Robinson said that, in late 2014, she was happy at work and ‘really enjoying [her] work’. Dr Berghofen’s clinical records show that Ms Robinson attended a consultation on 2 December 2014 and that it was recorded that Ms Robinson ‘says [she] never felt so happy in her life’ and that ‘medication helps to cope well with challenging life stressors and situations’.
In re-examination, Ms Robinson confirmed the accuracy of Dr Berghofen’s notes and stated that she was coping ‘very well’ with her work at EACH in 2014. Additionally, she said that she ‘didn’t need to’ see her psychologist, Ms Westworth, throughout 2014.
January and February 2015
Mr Fitzgerald was acting team leader for the Knox team and had been in the position since September 2014. Mr Rickard was the team leader for the South Eastern team and had been in that position since 2015.
Mr Fitzgerald supervised Ms Robinson’s work as a carer peer support worker, two days a week, when she managed Knox clients. He described Ms Robinson and her work in early 2015 as follows:
15.Her attendance and punctuality were good.
16.She is passionate and committed to the carers, and I found her work performance to be good.
17.On occasion she worked outside her standard hours and she would take time in lieu.
18.Vicky has worked as a Carer Peer Support Worker for 7 years but the role in Knox was relatively new and when I started the number of referrals was quite low.
19.She seemed to be quite busy with Eastern Health, because at times she would ask if she could do some Eastern Health work on days she was working with Knox.
20.She moved to full time in January 2015, although there was no increase in the number of hours she worked with Knox.
21.It was at around this time that the number of referrals to Vicky within the Knox community, seemed to ramp up: she moved from 2 or 1 active carer clients per week in late 2014, to 4-5 in January - February 2015, and as stated above, this was across the same number of work hours.
22.In early January there was an incident involving one of her carers.
23.Vicky was not present at the time but advised me that the carer had wielded a weapon [(a knife)] and threatened their charge.
24.Vicky had to handle the matter, make a police report etc, but at the end of the day there was nothing that could be done, because no-one wanted to press any charges.
25.Vicky was quite upset about it at the time and we debriefed.
26.I was unaware until late November that I had to meet Vicky for Supervision meetings, until late 2014, and with Christmas, my first actual Supervision meeting with her was on 22 January 2015, by which time she had started working full time.
27.We discussed the Carer who had threatened their charge: the Carer was coming in that afternoon to touch base, and things were a lot calmer. I think that one of our staff went into that meeting with Vicky, as well.
28.Vicky said at the Supervision meeting, that she was a bit stressed with the case load that week; that she was getting better in time scheduling and that working out the Client Service Units (CSU) was getting better.
29.CSUs are time units that are input against client records, so give an indication of the amount of time spent on each case.
30.I showed her how to enter the CSUs correctly.
31.She told me that she was working with 5 clients at that time and we discussed each of them.
32.She said she had been working on a new assessment form and advised that she was taking annual leave in March, and that she was working on a “Who Am I” workshop to take place at Knox and Baulkham Heights in April.
33.That was the only Supervision meeting I had with Vicky.
34.It was at around the time of the Supervision meeting that I received an email from Vicki, asking whether there was any guideline as to the number of clients that she should be handling.
35.I made some enquires and explained to her that there was not a set number of clients, but that it was more about the CSU, to demonstrate how her time was being spent.
36.John Rickard, who is the Team Co-ordinator of South Eastern Mental Disability Recovery Team, and I, came to an arrangement whereby we would provide supervision to Vicki, month about, that is, I would provide it one month and John, the next.
37.I am unsure whether John provided supervision to Vicky in February, prior to her ceasing work.
38.In conclusion, I can confirm that there was a doubling in Vicki’s client numbers within the Knox team, from January 2015, although she did not increase her hours within the team.
39.I can also confirm that there was one incident involving a Carer in January 2015, that caused Vicky some anxiety.
Ms Robinson said that she learnt of the knife incident by telephone when a carer, during the course of a conversation, disclosed that she (the carer) held a knife at her partner’s throat and threatened to kill him. She said that she was very stressed and worried as a result of this call.
She then spoke to Mr Fitzgerald and also to Ms Stanley, a program area manager, who told her that she (Ms Robinson) had done everything she could do. She continued to manage the client.
As to the South Eastern part of the job which commenced in January 2015, Ms Robinson worked under Mr Rickard, the team leader.
Ms Robinson said that the change to include home visits as part of her portfolio required her to travel to carers’ homes and speak to the carer in person. The interaction with the carer was essentially the same as either by phone or in face-to-face referrals in a clinical or community setting, save that it was in the home of the person providing the care, and the person requiring the care may be present. Ms Robinson said this was ‘more confronting’.
Although she said that, on average, she did home visits twice a week, her progress notes (contemporaneously compiled) demonstrated that between 6 January and 25 February 2015 she had a total of 26 clients, of which six were South Eastern clients and, of those six, four or five home visits were conducted during that period.[18] The judge apparently accepted the accuracy of these records and noted that it was not disputed that during this period Ms Robinson had ‘performed between four and six home visits (the evidence was unclear as to the exact number and one may have been a repeat visit to the same client)’.[19]
[18]Reasons, [132].
[19]Reasons, [48]; see also Reasons, [132], [264], [282].
Ms Robinson agreed that she was given specific training and induction in January 2015 prior to taking on the South Eastern portfolio and the home visits. Ms Robinson also agreed that in the 12 months before February 2015, the staff at EACH were encouraged to discuss the content of their client care relationships with their supervisors in team meetings, and to speak to their peers about client relationships.[20] This occurred across the three sources of referrals (Eastern, Knox and South Eastern).
[20]Reasons, [139].
At the trial, Ms Robinson said that ‘from memory’ she had team meetings approximately once a fortnight, potentially even weekly. She said that these meetings were with Mr Rickard and Mr Fitzgerald, ‘so often she would go and see [Mr Rickard] first and then straight after go and see [Mr Fitzgerald]’. In the meetings, she and her supervisor would discuss her caseload, her KPIs and ‘any kind of issues’ she was experiencing. She recalls discussing difficult and ‘mostly distressing’ client experiences in the supervision meetings, particularly with her South Eastern referrals. She said that she was not struggling with her Eastern Health referrals, as she felt ‘better supported with those ones’.
The documentation tendered by EACH at the trial demonstrated that meetings were usually held on a weekly basis.
On Tuesday 20 January 2015, Mr Rickard circulated an email to members of EACH’s staff, including Ms Robinson. Attached to that email was a document headed, ‘An introduction to Trauma informed care for Mental Health and AOD Practitioners’. The document enumerated the content to be covered in the three-hour session:
·Introduction to trauma theory
·Creating safety
·Taking a trauma informed history
·Trauma Informed Brief Interventions for [sic]
·Flashback Protocol
·The lived experience of DDI Recovery (video)
·Recommended Trauma Frameworks for processing trauma
·Recommended Reading
Mr Rickard’s email read as follows:
Hi All
We have more training coming up. Trauma informed 3 hour session at fed estate in Ringwood.
The first session is 11 FEB. They will be running this for a few weeks I think there will be a maximum of 30 per session, so please book in for one of the sessions and please let me know which one. …
Ms Robinson attended the training, which included a topic on vicarious trauma, on Wednesday 11 February 2015. The training was conducted by psychologist, Ms Jenni Thompson.
Prior to attending the training, Ms Robinson had never heard of vicarious trauma, nor had she been provided with training to identify signs that she might be experiencing such trauma.[21] Ms Robinson said that ‘she remembered after leaving the session that [she] was experiencing some of those symptoms’. Asked by counsel when, in the period January to February 2015, she first started to experience symptoms, she answered: ‘Yes, so I know that it was before the vicarious trauma training because when I went to the training I recognised some signs …’.
[21]Reasons, [83].
Nearly a week later, on Tuesday 17 February 2015, Ms Robinson and Mr Rickard had a discussion at the offices of EACH — which is central to the determination of this application. The judge in his reasons noted that there was no dispute that this was the first time that Ms Robinson had told her superiors at EACH that she was struggling with the work.[22] It is also clear that this was the first time that Ms Robinson in discussion with any superior at EACH related any anxiety to her experiencing vicarious trauma.
[22]Reasons, [51].
Ms Robinson said she was crying, and this was observed by Mr Rickard. She said that she told him that she was distressed, was not coping, and that she may be experiencing some vicarious trauma symptoms and that Mr Rickard responded ‘well, don’t take on any more clients, just manage the ones that you’ve got’. Ms Robinson said she could not stop crying and recalls saying that she was ‘struggling’ with the amount of cases she was working with. Ms Robinson said that in response to this, Mr Rickard said ‘well, just don’t take on any more clients – carers’.
Mr Rickard agreed that there was a discussion which he described as ‘an informal conversation’. In his witness statement, he said as follows:
34.I was walking past and noticed that she appeared to be a little distressed.
35.I asked if she was ok.
36.This led to quite an in-depth conversation about how she was and ended with her being quite emotional.
37.We talked about a number of things, and she did say that she was struggling at that point.
38.Her main concern was the stress she was feeling from vicarious trauma.
39.She elaborated some of her clients’ situations and said that she was struggling to let go.
40.She said she knew that it was not her suffering to own.
41.We had attended Trauma Informed training the previous week.
42.She said that during and after the training it highlighted to her that she needed to work through her inability to let go of other people’s suffering, and not own what is not hers to own.
43.During that conversation she became quite emotional.
44.I said to Vicky that from this point we would stop any new referrals indefinitely, until she felt able to manage.
45.She was concerned that there might be a waiting list and I told her that there would not be one.
46.In this conversation or perhaps on 10 February 2015 she said that the time spent driving across the geographical area we service, was causing a problem, and that she was not able to see as many people as she thought she would be able to.
47.She was worried that she could only see one or two clients when previously she could do this easily.
48.This conversation took place in an open environment, and I invited her to continue the conversation in my office, and she said she was fine.
49.I said that if there was anything I could do, or anything she needed, to let me know.
50.After I finished talking to Vicky, I went and told Management that I was stopping all referrals and we discussed how we would best support her.
51.That was the last conversation of note that I had with Vicky, although we continued to have regular contact regarding operational matters, including the development of a Carer Support Group, which I thought was a great idea.
52.Vicky ceased work a week or so later: she sent me a text message on 25 February 2015 to say that she was unwell and would not be in and on Friday 27 February she sent another text message to say that she was unwell and seeing her doctor and psychologist.
53.She did not return to work with my team after that time.
54.In the 12 days she worked with us, Vicky did 9 home visits (on our system) and by the standards of Outreach, this was a small caseload, but for her capacity perhaps that was too much for her.[23]
[23]The accuracy of this figure is questionable. Assuming Mr Rickard is referring only to South Eastern home visits it is irreconcilable with the progress notes and the judge’s findings. See [64] above.
In examination-in-chief, Mr Rickard said as follows about his conversation with Ms Robinson:
COUNSEL: Mr Rickard, was there an occasion during Ms Robinson’s work with EACH during the early part of 2015 that you saw Ms Robinson in the office crying?
MR RICKARD: Yes, I do recall that, and look, to be perfectly frank that’s probably the only thing that I do remember with any certainty regarding Vicky.
COUNSEL: Can you please tell the court what you remember about seeing Vicky and what eventuated after you saw her crying?
MR RICKARD: Well, I remember walking into the office area where all the team sit and seeing Vicky - I don’t remember if I heard her crying, because she had her back to me, or I just saw her seemingly distressed or maybe sitting in a way that I thought she was distressed. I remember going to her to see how she was and I asked the question, and then when I got to her and then I could obviously visibly see she was distressed and crying.
COUNSEL: And what happened when you got to her?
MR RICKARD: Well, I asked her if she was okay, or words to that extent, I don’t remember the exact words obviously. And I’m pretty sure I asked her if she wanted to speak to me in my office, like in private. And my memory serves me at this stage that she didn’t, but look, you know, as I said, I’m vague about that. But I can’t remember speaking to her in my office after that, I don’t think she did from memory, but look, my memory from that time ago is vague.
COUNSEL: Okay. What if anything else are you able to recall about the content of the conversation that you had with Vicky at her desk?
MR RICKARD: I can’t really say because, you know, my memory is vague but I know there was some conversation around her client load or her client work.
COUNSEL: Okay. And do you have any recollection of what if anything you suggested or recommended to her at that time?
MR RICKARD: No, look, I can’t, I would just be guessing right now and I don’t want to do that.
In cross-examination, Mr Rickard was questioned on his style of supervising employees, in terms of their potential mental health concerns. He said that he would ‘provide the opportunity to encourage and support’ but it would be ‘up to the [employee] to identify [the concerns], otherwise [he] would not know’.
Mr Rickard also accepted that there was no formal process for debriefing by an external provider of carer peer support workers such as Ms Robinson. He also agreed that he did not organise for Ms Robinson to see a counsellor to debrief about her experiences with clients prior to 17 February 2015 as he did not know anything was wrong until the moment he saw Ms Robinson crying. He went on to say that ‘it is not that unusual for someone to be back at work after crying during the course of employment’. He explained that the nature of the work is highly emotional, and he would see that regularly, and ‘through a process of that, people continued to work’.
Ms Robinson’s progress notes record her working Wednesday, 18 and Thursday, 19 February 2015. The progress notes read as follows:
18/2/15
I met with [NAME] and [NAME] this morning. They had not followed up on the community groups that I had given them information for. They are very isolated and not connected into the community and they would like to be connected in. I came back to the office and sent off a referral for them both to recieve [sic] respite funding to join groups. [NAME] is going to go down to her local community house/ centre and see if she can join a craft group. She will get the information. [NAME] asked me to look into local fishing groups. I have rung the [REDACTED] Angling club and I am waiting to hear back from them. I have another appointment in a fortnight with them.
18/2/15
I did a referral to Life Assist for [NAME] to receive respite and emailed it to them. Waiting to hear back.
18/2/15
I had contacted Life Assist in Narre Warren, however they had not made contact with [NAME] for several weeks and I had tried to contact them both by email and by phone but have had trouble getting in contact, so I did a new referral and sent it to the head office of Life Asssit [sic]. Awaiting response.
18/2/2015
I rang [NAME] and had a brief conversation around services. I have made another appointment with her for next week. I made a referral for her to Life Assist. I still haven't heard back from the council re services.
18/2/2015
Did a referral to Life Assist for [NAME] and printed off counselling info for relationship counselling. I need to find alcohol services.
19/2/2015
Put a referral through to Sure for family drug counselling.
19/2/15
Carer did not turn up for appointment.
19/2/15
I researched transport services for [NAME]’s son to be taken to medical appointments to give her some respite from doing it so often. I emailed [NAME] with the services available to her. Awaiting her response.
19/2/15
I rang [NAME] to see how she was tracking, she thinks [NAME] is a bit paranoid at the moment, but did not want to ring CATT or [NAME], Case Manager. I asked her what she could do if she was finding him frustrating, she didn’t know, so I reminded her of our meeting when we spoke about them going into seperate [sic] rooms. She had not heard from Brain Link or Specialist Recovery yet. I have sent both Brainlink and [NAME OF CASE MANAGER] an email asking for an update.
19/2/15
I rang [NAME] and got more details from her to put in a referral for both MIF for connect groups and Life Assist respite. I am waiting to hear back from both services.
On Friday 20 February, Ms Robinson took the day off work as she was experiencing high anxiety. Ms Robinson emailed Ms Stanley.
Hi Deb,
I’m experiencing a high amount of anxiety today so I have decided to take the day off. I tried to recall my time sheet, but it has already been approved, so I’m not sure what to do? I didn’t have any appointments today, so it is not necessary to cancel any. If you need to contact me, you can call me on …
Thanks,
Vicky
When asked of this email exchange in cross-examination, Ms Stanley said that she had no recollection of receiving it. Ms Stanley did not reply to the email.
Ms Stanley was also asked whether she could recall Ms Robinson having a crying incident at work on 17 February 2015. Ms Stanley responded that it was difficult for her to state it was precisely at that time, but that she did have a conversation with Ms Robinson when she was distressed. When asked what support was offered to Ms Robinson at that time, Ms Stanley said, from memory, some adjustments to work, a reminder about Employee Assistance Program services, and asking Ms Robinson if she needed to take ‘some time away to be okay’.
According to her time sheet, Ms Robinson recorded that she then worked a total of 5 hours and 35 minutes on Monday 23 February 2015 and 7 hours on Tuesday 24 February 2015. Ms Robinson’s contemporaneous client progress notes confirmed this.
In evidence-in-chief, Ms Robinson said she did not have a clear memory of the Monday and Tuesday, but did recall attending a case management meeting with a carer and a medical treatment team, seeing a psychiatrist and psychiatric nurses, a case manager and carer, and a care recipient.
It was not in issue that Ms Robinson undertook a client home visit on Monday 23 February 2015. Within Ms Robinson’s progress notes is the following entry:
[NAME]’s son had a recent suicide attempt and was in hospital with physical injuries, no long term brain injury. She has been holding it together, but has some grief and frustration around the limitations on what she can do for her son. MST are involved. I suggested the possiblility [sic] of looking into an outreach worker for him and we discussed other options for him to have socialisation. He is high functioning and does not enjoy going to MI groups. [NAME] has been quiet proactive over the past 14 years in gathering information and accessing services. I provided her with an updated list of services and suggested Grow Support Group, MIF, Life Assist for respite, FRCS and Carers Vic for counselling, etc. She requested to be linked up to email distribution list. Call her in two weeks to see how she is tracking.
In her evidence-in-chief, Ms Robinson said that she recalled driving to this appointment and while she was driving, shaking uncontrollably and pulling over to the side of the road as a means of trying to calm herself down. She said she ‘kind of pushed through and just went to the meeting’ but that she did not think she was ‘able to go back to work after that’.
Ms Robinson then worked on Tuesday, 24 February 2015. Within Ms Robinson’s progress notes is the following entry:
Proviced [sic] carer peer support to carer. Rang Mecwa Care to look at engaging services to help her with her gardening, but they were unsure if she was eligible and will contact her and let me know. [NAME] is also going to ring Life Assist and follow them up about respite. I filled out a referral form for Bridges Community support for travel for her husband to dyalisis [sic], but she is still waiting to see if they require this service and will let me know.
Early on the following morning (Wednesday 25 February 2015), Ms Robinson went to her general practitioner, Dr Berghofen. The doctor recorded that Ms Robinson ‘feels quite stressed’ and that she had ‘started to work full time in her usual job’. She ‘feels overwhelmed and not able to cope’, that she ‘had a panic attack yesterday at work’, ‘started crying at work’, ‘wanted to quit her job alltogether [sic]’, but that she ‘does not feel depressed’, ‘feels Lovan is helping with that’, and that she ‘has not seen [her] psychologist for more than one year’.
Ms Robinson was then off work from 25 February to 20 April 2015.
April to November 2015
Ms Robinson returned to part time work at EACH’s Ringwood offices on 20 April 2015 under a series of ‘return to work arrangements’:
(a)Arrangement starting 20 April 2015, with review date of 24 April 2015;
(b)Arrangement starting 4 May 2015, with review date of 14 May 2015;
(c)Arrangement starting 18 May 2015, with review date of 25 May 2015;
(d)Arrangement starting 7 September 2015, with review date of 23 September 2015;
(e)Arrangement starting 30 November 2015, with review date of 16 December 2015; and
(f)Arrangement starting 15 February 2015, with review date of 28 March 2016.
In the arrangement commencing on 20 April 2015, Ms Robinson was to work for three hours per day on two days in the week commencing Monday 20 April 2015 (on Monday 20 April and Wednesday 22 April) and three hours per day on three days in the week after (i.e. Tuesday 28 April, Thursday 30 April and Friday 1 May 2015).
The tasks or duties to be undertaken by Ms Robinson under the return to work plan were:
·Administration: Undertake clerical duties such as typing, resource information, photocopying, update procedures and forms
·Position Description provided upon commencement
The relevant workplace supports, aids or modifications to be provided were:
·Take rest break where required
·Vicky to self monitor anxiety levels and inform Team Leader/Manager if required
·Meet with Team Coordinator weekly and as needed to monitor RTW plan and discuss any concerns
·Access EAP service as needed
Specific duties or tasks to be avoided by Ms Robinson were:
·No client contact or contact with client information.
·No working outside of the hours stated in the RTW plan.
As noted by the judge, it was not in issue that the return to work plan itself was appropriate and that Ms Robinson performed the role without any difficulty.[24]
[24]Reasons, [57].
Ms Robinson returned to an administration role in EACH’s Ringwood offices on 20 April 2015 in a part-time capacity. She worked at a desk transferring files on a computer and had no client contact. Ms Goodwin, a project and data lead responsible to Mark Quaass, who supervised and allocated Ms Robinson’s work, said the following in respect of the work undertaken by Ms Robinson during this period:
It was administrative work, so completing and updating forms and templates, policies and procedures, general admin. Sometimes it was booking catering or following up on room bookings and car bookings, just general administrative work.
When asked if she understood there was to be any restriction on Ms Robinson’s work during this time Ms Goodwin said that ‘there was to be no client contact or interaction with client records’.
As to whether she was given any special instructions in relation to the management of Ms Robinson or the work to be allocated to her within the project and data team, she said:
It was just mostly around minimising any access to anything to do with clients, but our team didn’t have that level of interaction anyway. And we were to just be mindful that she may need to have time off and that she was only working part-time hours.
On 21 April 2015, the day after the April return to work arrangement was put in place, Ms Westworth, the psychologist, wrote a letter to Dr Berghofen, following her review of Ms Robinson. She stated that she had been treating Ms Robinson periodically since May 2010 for anxiety and depression, and that she had ceased therapy in October 2013 given Ms Robinson’s symptoms had reduced and she was ‘managing very well’. According to Ms Westworth:
Mrs Robinson’s condition has been stable for over 18 months until recently when she commenced full time work. Mrs Robinson reported that she was enjoying her work, until recently when the emotional stress of her work became overwhelming. Mrs Robinson reported that in her work she is constantly being exposed to hearing other people’s traumas. Mrs Robinson found it increasingly difficult to cope with the stress and was suffering from depression and anxiety with panic attacks. Mrs Robinsons symptoms have included; anxiety, insomnia, panic attacks, rapid breathing, shakiness, stuttering, restlessness, low mood, reduced self-confidence and self-esteem.
The recent increase in emotional stress and an increase in her work criteria have lead [sic] to an exacerbation of her pre existing symptoms of depression and anxiety. It is likely that Mrs Robinson has also suffered Vicarious Trauma due to the nature of her work.
…
Mrs Robinson is eager to return to work and it is suggested that she doesn’t return to her previous role; where she was the support person to families with a relative with a Mental Health need. It is recommended that at this point Mrs Robinson be placed in a role that doesn’t have direct client contact, for example office/admin role or a project role. I would also advise that she return’s [sic] to work on a gradual basis; initially part-time, with regular reviews as she increases her hours to a level that she can manage.
I have spoken with the return to work manager at her place of employment, EACH, and they have been supportive in assisting Mrs Robinson in a gradual return to work plan.
Ms Robinson was gradually transitioned back to full-time work which first commenced in the week of 25 May 2015. However, as per the return to work arrangements, Ms Robinson was still not permitted to have client contact, and her tasks were limited to undertaking ‘clerical duties’ in an office setting.[25]
[25]The second page of the 18 May 2015 return to work arrangements form is missing from Exhibit P9 and so, it is unclear what tasks Ms Robinson was limited (or not) to performing.
On 4 June 2015, Ms Westworth wrote to Dr Berghofen following a review and noted that:
To date Mrs Robinson has attended six counselling sessions under the Medicare’s Mental Health Care Plan this calendar year and I have asked her to present for her 6th session review.
The therapeutic treatment thus far has continued to focus on insight-oriented therapy, cognitive behavioural strategies and mindfulness. There has been an ongoing focus on building her self-confidence and self esteem especially in regards to returning to her place of employment.
Mrs Robinson has recently completed a graduated return to work plan, which has been successful. She is currently enjoying her new role and being back at work. Therapy has supported Mrs Robinson in her return to work.
Mrs Robinson has used therapy to gain insight and understanding to her symptoms and is learning ways to manage her depression and anxiety. Mrs Robinson has learnt ways to manage daily stressors and her anxiety. Therapy has focused on rebuilding her self-confidence and self-esteem, assisting her to have a positive orientation for the future especially in regards to work.
Mrs Robinson has shown significant improvements in lower levels of depression and anxiety; she has developed greater self-care and confidence. She has found the therapeutic process helpful and would like to attend further sessions. Future treatment will continue to address Mrs Robinson’s psychological issues.
Ms Robinson said that in July, probably a few months after her return to work, she was moved to a different spot and had to answer a telephone for Mr Quaass.
She said that she would take phone calls that sometimes involved client information regarding ‘difficult cases, including one where one of the carers that [she] was caring for, some committed suicide’. She described one incident as follows: ‘the only one that I particularly remember because it was the carer’s son who committed suicide, they gave me her name and told me that the carer had — the care reciprocant [sic] had committed suicide and yeah, I found it distressing. I can’t remember what else was said’. She said that this phone call occurred in November. She said that at that time she was answering the call for Mr Quaass.
Ms Robinson recalled feeling ‘distressed’ by the incident. Nevertheless, she attended work the next day and assisted in running a function on that day.
Mr Quaass said that Ms Robinson performed administrative tasks for the team, and from his memory, those tasks were allocated by Ms Goodwin, a project and data lead. Mr Quaass could not recall specifically ever asking Ms Robinson to take phone calls on his behalf when he was not in the office and said that the team had ‘recorded messages where messages would be left on [his] phone and people could contact [him] via the work mobile’.
Ms Goodwin was adamant in cross-examination that Ms Robinson’s tasks under the return to work plan were confined to administration and clerical duties, and that Ms Robinson only worked within Ms Goodwin’s team.
When asked if she ever requested Ms Robinson to take incoming phone calls for Mr Quaass, the critical incidents response manager, she said: ‘No’. In response to further questions concerning answering Mr Quaass’ telephone, there was the following exchange:
COUNSEL: Did you ever see her answering his phone?
MS GOODWIN: No, we never answered his phone.
COUNSEL: You never saw the plaintiff answer this [sic] phone?
MS GOODWIN: Correct, no.
And then after intervention by the judge, Ms Goodwin repeated it, saying: ‘Yes, sorry, I did say none of us in the team answered his phone.’ When asked if she was aware Ms Robinson was taking messages for Mr Quaass during this period, she said she was not.
In her evidence-in-chief, Ms Robinson was also asked if she had any engagement with clients during this period. She described a particular incident where a mother was ‘screaming about wanting to get her kids back’. She also reported witnessing ‘other arguments and things like that’ between mental health patients in the reception area, because sometimes they could become aggressive.
The clinical records of Dr Berghofen confirmed, at least in a general sense, that in the months leading up to November 2015, Ms Robinson was generally coping well with the return to work plan. For instance, on Monday 12 October, the following entry is noted:
patient feeling well
says coping with current work and workload
however still fragile
sees psychologist regularly under workcover
takes two Lovan daily
workcover certificate written
Ms Robinson accepted that at that time, things were going well at work.
The end result is this: even if Ms Robinson had been taken off all client contact on 17 February, there was only one further relevant client contact that would have been avoided, and its effect on her psyche is unknown.
As to the third part of the claim for breach of duty of care (the period from April to November 2015), as mentioned earlier, there was no issue that the return to work plan itself was a reasonable response to Ms Robinson’s psychological condition. The primary contentious issue was Ms Robinson’s alleged exposure to phone calls which may contain accounts of trauma. It was also vaguely asserted that there was a lack of supervision and instruction throughout the period.
Dr Lewis had opined that it was ‘incumbent on [EACH] to ensure that Ms Robinson did not remain exposed to indirect trauma (whilst undertaking administrative duties) from April to October 2015’. This is exactly what the return to work plan envisaged in terms of removing Ms Robinson from client contact.
The judge accepted that Ms Robinson had on occasion answered Mr Quaass’ phone and heard an account of a carer’s son committing suicide. However, the judge concluded:
The return-to-work plan was appropriately prepared, considered by medical practitioners and implemented, without any reason for the defendant to be alert to the risk of further injury to the plaintiff until the unfortunate bomb scare. The one caveat to that is the task of answering Mr Quaass’ phone, which I accept the plaintiff did on occasion, well-intentioned, but outside the scope of her return-to-work plan and without the direct or indirect approval of the defendant. I do not accept that she was ever directed by any employee of the defendant to answer Mr Quaass’ phone.[43]
[43]Reasons, [412].
Having earlier noted in relation to Dr Lewis’ opinion on this issue:
Further, I do not accept his conclusion that, in contravention of the return-to-work arrangements, the defendant required the plaintiff to undertake work that exposed her to client incidents/information or ‘triggering’ information. If there was a contravention of the return-to-work arrangements, that was because the plaintiff took it upon herself to undertake tasks outside the agreed return to work. That may have been well-intentioned on her behalf, but there is no evidence that she ever raised the issue of answering Mr Quaass’ phone with any other employee of the defendant, or that she was directed to do that task.[44]
[44]Reasons, [343].
On the application, it was submitted that his Honour did not deal adequately with the conflict between the evidence of Mr Quaass and Ms Goodwin, and that of Ms Robinson in resolving whether she was required to answer Mr Quaass’ telephone, with the implied risk that she might hear of a traumatic incident — as happened on one occasion.[45]
[45]Reasons, [303]–[307].
Counsel for Ms Robinson is correct in asserting that his Honour did not in terms deal with the conflicts in the evidence of Ms Robinson and the two EACH employees.
However, we think it is tolerably clear, as argued by counsel for EACH, that it is implicit in his Honour’s finding set out at [176] and [177] above, that he accepted the evidence of Mr Quaass and Ms Goodwin over that of Ms Robinson: Ms Robinson was not required to answer the telephone in the manner she described.
Ms Goodwin was emphatic that answering Mr Quaass’ phone was not part of Ms Robinson’s duties. This was consistent with the evidence of Mr Quaass. Ms Robinson was a poor historian, and the judge had the ability to see and hear each of these witnesses.
As the judge concluded, answering the phone was not within the scope of her return to work plan and on the basis of the evidence of Ms Goodwin and Mr Quaass, his Honour was correct in concluding that this was not approved by her supervisors.
It would also seem, as the judge concluded, that Ms Robinson took it upon herself to answer the phone and, on one occasion, was exposed to the story of a suicide.
It follows that we also agree with the judge in rejecting Dr Lewis’ criticism of the failure of EACH to quarantine Ms Robinson from calls such as that described by Ms Robinson.
The fact that Ms Robinson, unintentionally, was exposed to one further account of trauma was unfortunate, but not due to any lack of reasonable care on the part of EACH.
As to the implementation of the return to work plan generally, Dr Lewis said that Ms Robinson would have benefited from regular workplace supervision, support and training from April to October 2015 ‘to meet the demands of her changed work situation from in or around 2015’.
The evidence of Ms Robinson’s fellow employees, and particularly Ms Goodwin, her direct supervisor throughout this period, made it clear that Ms Robinson was being adequately supervised and supported when she returned to work.
In our view, one could hardly imagine a more reasonable return to work plan than that devised by EACH and supervised by Ms Goodwin. Ms Robinson was placed in an administrative role in an office setting and had no direct client contact, either face to face, or in a community or clinical setting. On any view, this was a reasonable response to the identified risk of injury — that of exposure to trauma.
The judge was correct. It was not EACH’s responsibility to protect Ms Robinson from any form of contact with the outside world such as clients being noisy or disruptive in the office space. Ms Robinson’s case on this point is overreach. It imposes on the employer a standard of perfection and requires the employer effectively to be the guarantor of an employee’s health and safety — that is not the proper measure of an employer’s responsibility. EACH’s response was reasonable — indeed, in our view, it went beyond that standard.
The judge was correct to find that there was no breach of duty in relation to this period.
In summary, there was no breach of duty by EACH in relation to Ms Robinson’s employment. For the reasons set out above, we would grant leave to appeal in respect of grounds 2 and 2A but dismiss the appeal on those grounds. We would not grant leave to appeal on proposed ground 8.
The other proposed grounds of appeal
As noted,[46] EACH rightly conceded that ground 3 was made out, and we would grant leave to appeal on that ground. However, for the reasons we have given we would dismiss the appeal on ground 3.
[46]See [53] above.
With the concession by EACH as to ground 3, the other proposed grounds of appeal are otiose and do not need to be considered. Leave to appeal will be refused on those other proposed grounds.
Conclusion
The end result is that notwithstanding Ms Robinson’s success on ground 3, the notice of contention is made out and the appeal should be dismissed.
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