Ross v Gruma Oceania Pty Ltd
[2022] VSCA 87
•13 May 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0100
| JOANN ROSS | Applicant |
| v | |
| GRUMA OCEANIA PTY LTD | Respondent |
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| JUDGES: | BEACH, NIALL and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 May 2022 |
| DATE OF JUDGMENT: | 13 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 87 |
| JUDGMENT APPEALED FROM: | Ross v Gruma Oceania Pty Ltd (County Court of Victoria, Judge Tsalamandris, 29 July 2021) |
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ACCIDENT COMPENSATION – Workplace injury – Plaintiff suffered fall at work – Jury verdict – Jury answered ‘no’ to question whether there was negligence on part of defendant in respect of plaintiff’s fall – Whether open to jury not to be satisfied that defendant was negligent in respect of fall – Whether jury’s verdict was one which no reasonable jury could reach – Jury’s verdict not one which no reasonable jury could reach – Leave to appeal granted – Appeal dismissed.
ACCIDENT COMPENSATION – Workplace injury – Psychiatric injury – Jury verdict – Jury answered ‘yes’ to question whether there was negligence on part of defendant in respect of plaintiff’s return to work, then answered ‘no’ to question whether that negligence was a cause of psychiatric injury to plaintiff – Causation – Whether jury’s answer of ‘no’ was one which no reasonable jury could reach – Jury’s verdict not one which no reasonable jury could reach – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A G Uren QC with Mr C E Hangay | Zaparas Lawyers |
| For the Respondent | Ms M Britbart QC with Mr R Kumar | Russell Kennedy |
BEACH JA
NIALL JA
KENNEDY JA:
Between December 2009 and July 2013, Joann Ross (‘the plaintiff’) was employed by Gruma Oceania Pty Ltd (‘the defendant’). Prior to December 2009, the plaintiff had been employed with the defendant through an agency. The defendant manufactures tortillas and tacos. The plaintiff worked mainly on the tortilla line, although she also worked at times on the taco line. She worked the night shift. There were about 30 people who worked on the tortilla line, and about 20 people who worked on the taco line — making a total of 50 employees who worked on the production line at any one time.
On 26 July 2012, the plaintiff suffered a fall at work. In the proceeding below, commenced in January 2020, the plaintiff sought damages from the defendant for injuries she claimed she sustained as a result of the fall (‘the fall claim’) and subsequent psychiatric injuries which she claimed were the result of bullying, intimidation and harassment during her return to work in the period April to July 2013 (‘the return to work claim’). The plaintiff alleged that these injuries were caused by the negligence of the defendant, its employees and agents.
The plaintiff’s proceeding was heard in the County Court before a judge and jury of six, over 14 days, in July 2021. The parties agreed on the terms of the questions to be asked of the jury. Relevantly, those questions were:
1A. Was there negligence on the part of the defendant in respect of the plaintiff’s fall on 26 July 2012?
1B. If yes to question 1A, was the defendant’s negligence a cause of injury to the plaintiff’s left ankle?
1C. If yes to question 1B, was there contributory negligence on the part of the plaintiff which was a cause of her injury?
1D. If yes to question 1C, to what extent (expressed as a percentage) is it just and equitable that the plaintiff’s damages be reduced, having regard to her own share in the responsibility for her injury?
Plaintiff’s share of responsibility:
Defendant’s share of responsibility:
TOTAL: 100%
2A. Was there negligence on the part of the defendant in respect of the plaintiff’s return to work, in the period from April to July 2013?
2B. If yes to question 2A, was that negligence a cause of psychiatric injury to the plaintiff?
On 29 July 2021, the jury returned a verdict for the defendant by giving the following answers to the questions as apparently read by the judge’s associate and recorded in the transcript:
ASSOCIATE: How do you find on question 1A, was there any negligence on the part of the defendant in respect of the plaintiff’s fall on 26 July 2012?
FOREPERSON: No.
ASSOCIATE: How do you find on question 2A, was there any negligence on the part of the defendant in respect of the plaintiff’s return to work in the period from April to July 2013?
FOREPERSON: Yes.
ASSOCIATE: How do you find on question 2B, was the defendant’s negligence a cause of the psychiatric injury to the plaintiff?
FOREPERSON: No.
On the same day (29 July 2021), the judge entered judgment for the defendant in accordance with the jury’s verdict. At the time of the entry of judgment, neither the judge nor counsel made any observation about the insertion (if there was one),[1] by her Honour’s associate, of the second definite article (before the word ‘psychiatric’) into question 2B. Of that, more later.
[1]The other possibility being that the transcript subsequently produced was wrong and no party took any step to correct it.
The plaintiff now seeks leave to appeal, on the following proposed grounds of appeal:
1.The jury’s verdict of ‘no’ in answer to question 1A: ‘Was there negligence on the part of the defendant in respect of the plaintiff’s fall on 26 July 2012’ was one which no reasonable jury could reach.
2.The jury’s verdict of ‘no’ in answer to question 2B: ‘If yes to question 2A, was that negligence [the negligence on the part of the defendant in respect of the plaintiff’s return to work, in the period from April to July 2013] a cause of psychiatric injury to the plaintiff?’ was one which no reasonable jury could reach.
As both proposed grounds of appeal assert that the verdict of the jury was one which no reasonable jury could reach, it is necessary to consider the principles on which an appellate court is empowered to set aside the verdict of a jury in a civil case.
Appeals against jury verdicts: the principles to be applied
In Zoukra v Lowenstern,[2] the Full Court said in respect of an appeal from a jury’s verdict:
So far as the facts are concerned it is not known what view the jury took. The appeal must therefore proceed upon the basis that the jury took the most favourable view to the respondent which a reasonable jury could take upon the evidence.[3]
[2][1958] VR 594 (Herring CJ, O’Bryan and Dean JJ) (‘Zoukra’).
[3]Ibid 595.
The proposition that, upon an appeal from a jury’s verdict, an appellate court must proceed upon the basis that the jury took the view of the evidence most favourable to the respondent has been stated and restated many times since the Full Court delivered its judgment in Zoukra.[4] As has also been said many times before, it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed where there is a conflict of testimony.[5]
[4]See Liftronic Pty Ltd v Unver (2001) 75 ALJR 867, 872-3 [29]–[30] (‘Liftronic’).
[5]See Hocking v Bell (1945) 71 CLR 430, 441 (Latham CJ in dissent), but see the approval of this passage by the Privy Council on appeal from the High Court’s decision in Hocking v Bell (1947) 75 CLR 125, 130–1.
In Calin v Greater Union Organisation Pty Ltd,[6] Mason CJ, Deane, Toohey and McHugh JJ said:
The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.[7]
[6](1991) 173 CLR 33 (‘Calin’).
[7]Ibid 41 (emphasis in original).
In the same case, Brennan J said:
In this case … it would be impossible to hold that a verdict for the defendant was unreasonable unless, on the whole of the evidence, the plaintiff is entitled to a verdict in her favour. But, where the burden of proof is on a party who fails before a jury, the verdict cannot be set aside and a contrary verdict entered unless the jury could do nothing else but find in accordance with that party’s contention. It is not sufficient to show that that party has made out a strong case. Here, the jury might reasonably have refused to be satisfied about one or more of the issues on which the plaintiff bore the onus of proof.[8]
[8]Ibid 46-7 (citations omitted).
In Swain v Waverley Municipal Council,[9] with particular reference to jury verdicts in proceedings for negligence, Gleeson CJ said:
[9](2005) 220 CLR 517 (‘Swain’).
So long as individual jurors act in accordance with the directions they are given, different jurors might be impressed by different parts of the evidence, or by different arguments of counsel. Jurors are instructed that they may take a selective approach to the evidence, and even to different parts of the evidence of a particular witness. They may arrive at their joint conclusion by different paths. There may be no single process of reasoning which accounts for a jury verdict.
…
The resolution of disputed issues of fact, including issues as to whether a defendant’s conduct conforms to a requirement of reasonable care, by the verdict of a jury involves committing a decision to the collective and inscrutable judgment of a group of citizens, chosen randomly.[10]
A little later, his Honour said:
There may also be a dispute about what reasonableness requires in a given case. When a trial judge, or an appeal court, asks as a matter of law[11] whether a judgment adverse to the defendant is reasonably open to a jury, the inquiry may be affected by the nature of the judgment required of the jury. A judgment about whether the evidence could support a certain finding of primary fact might require nothing more than attention to the detail of the evidence, and a consideration of its probative potential. A judgment about whether behaviour is reasonable might involve the application of a measure that is to be found, not in the evidence, but in the wisdom and experience of those who make the decision.[12]
[10]Ibid 519–21 [3]–[7].
[11]Emphasis in original.
[12]Ibid 521-2 [8] (emphasis added).
More recently, in Pasqualotto v Pasqualotto,[13] this Court observed that it is a difficult task to overturn a jury’s verdict.[14] In the course of referring to the High Court’s decision in John Fairfax Publications Pty Ltd v Rivkin,[15] the Court noted that ‘the occasions for judicial correction of jury verdicts will be extremely rare’.[16] That said, the Court accepted that a party seeking to overturn a jury’s verdict was required to show no more than that the jury’s verdict was one that no reasonable jury could have given.[17]
[13][2013] VSCA 21 (‘Pasqualotto’).
[14]Ibid [21] (per Osborn JA with whom Tate JA agreed).
[15](2003) 77 ALJR 1657 (‘Fairfax’).
[16]Ibid [21], [191]–[197] (per Whelan JA). See also Butcher v Australian Tartaric Products Pty Ltd [2009] VSCA 303.
[17]Pasqualotto [2013] VSCA 21, [1] and [21].
PROPOSED GROUND 1
In proposed ground 1, the plaintiff contends that the jury’s verdict of ‘no’ in answer to question 1A, asking whether there was negligence on the part of the defendant in respect of the plaintiff’s fall on 26 July 2012, was one which no reasonable jury could reach. The resolution of this issue requires an analysis of the evidence given at trial about the plaintiff’s fall and the defendant’s relevant warning and cleaning systems applicable to the area where the plaintiff fell.
The only witness who gave evidence at trial about the actual circumstances of the fall was the plaintiff. Her ability to describe the precise circumstances of the fall was obviously affected by the fact that, at trial, she was giving evidence of events that had occurred nine years earlier. There was, however, an ‘accident/incident injury form’ report completed by employees of the defendant on the night of the fall, and an ambulance record completed by ambulance officers on the same night. As counsel for the defendant put it in his final address to the jury, the record completed by the ambulance officers on the night of the fall was:
probably the most critical piece of evidence in this case and it’s critical for a number of points. First, it’s contemporaneous; it is made at the time that this is all happening. Secondly, it’s made by individuals who are totally independent, have no interest in anything other than tending to their duties as ambulance officers. And thirdly, it shows exactly what the plaintiff was saying at that time … .
In addition to the evidence referred to above, the defendant called two witnesses who were employed by it, Alvaro Hincapie and Natasha Pahoff. These witnesses gave evidence relevant to steps taken by the defendant to prevent falls at or about the entrance to its premises.
Evidence relevant to the fall and the issue of negligence
Ambulance record
The ambulance record was tendered by the defendant. The record shows that it was printed at 11:57 pm on the night of the fall. Next to the words ‘Case Description’, it contained the following (as typed):
44 yof arriving for work, as she stepped into front door she slipped on a large puddle of water landing on tiles. pt states she landed onto her right buttock flank area with her right leg twisted behind her. Pain to right lower back, right knee and right ankle. fall took place at approx 21:45 hrs this pm. pt assisted into a wheelchair by co workers, ice pack applied to right ankle followed by a bandage. right leg raised and av requested. pt initially did not want av attendance and would have preferred a member of staff drive her across the road to northern ed.
Accident/incident injury form
The defendant’s accident/injury form recorded that the incident occurred at 9:45 pm on 26 July 2012, and was reported at 9:55 pm. The section of the form dealing with the description of the incident was filled in as follows:
The person was walking into the factory and she slipped as floor was wet. She had cuts, pain in the hip and knee.
In the section of the form asking for the ‘root causes’ to be identified and for a ‘summary of major causes’, the following was written:
It was raining outside and when Jo came inside she wiped off her footwear on mat but she slipped after.
Wet floor sign was on the side and Jo did not notice it.
Plaintiff’s evidence
The plaintiff gave evidence that she arrived at work at about 9:40 to 9:45 pm. It was raining. She parked her car and had to walk approximately 30 metres to the front entrance of the premises. She said she slipped between an area of grey tiles and another area of white tiles inside the front door. She agreed that there was a mat inside the front door, but said that she did not recall any other mat being on the floor in the area on the day of the fall. She said:
After I fell I tried to get up and I found my right-hand side was sore and I was having trouble actually getting to my feet.
The plaintiff gave evidence that she was helped to her feet by some other people, and then sat on stairs just inside the front door. She was asked whether she made any observations of the area around her when she sat on the stairs. She said:
I noticed the cleaner cleaning up the water at the entrance area and I noticed the cleaner put a sign to my right. … a ‘caution’ sign, a ‘warning’ sign. … it [was] small, yellow and red sort of colour.
A little later in her evidence-in-chief, the plaintiff said that apart from the sign she saw when she was sitting on the staircase, she did not observe any other signs at the entrance. She also said that there were no warning signs outside the premises. The plaintiff then said that she estimated it was about six minutes after she slipped that a cleaner arrived. She said she ‘noticed the cleaner cleaned the water and touched the sign’. Asked to identify the water that the cleaner cleaned, she said ‘The water that was near the mat. … near the mat at the entrance?---To the side of the [entrance] mat, on the left [as one entered the premises]’. The plaintiff was then asked and answered the following questions:
Had you seen that water when you were entering the building?---No.
When do you first recall seeing the water?---I don’t recall seeing the water.
You saw it when the cleaner cleaned it up?---Yes.
Had you seen it before then?---No.
In cross-examination it was put to the plaintiff that she had ‘no specific recollection of how [she] fell, apart from a foot slipping out from underneath [her]’, and that she could not remember which foot it was. The plaintiff answered, ‘I can’t recall’. She was then asked and answered the following question:
Ms Ross, you don’t remember the fall, you don’t remember the mechanics of it … . You cannot tell this Court whether your legs, or either of them, were underneath you or out in front of you or to the side or anywhere else, can you?---It was too long ago to recall exactly what happened.
The plaintiff was asked whether she would accept that the ambulance officers were more likely than not to have correctly recorded the information they were given on the night of the fall. The plaintiff responded, ‘I don’t know’. Counsel for the defendant then put to the plaintiff the ambulance officers’ ‘Case Description’. In particular, counsel put the passage, ‘as she stepped into front door, she slipped on a large puddle of water, landing on tiles’. Counsel then asked the plaintiff whether that was correct as far as she could remember it. The plaintiff replied, ‘Yes, as far as I remember’. The plaintiff was then asked whether she saw that puddle of water before she slipped. She answered, ‘No’.
Alvaro Hincapie’s evidence
The defendant called Alvaro Hincapie, who at the time of the fall was employed as the sanitation manager at the premises. He was not working at the time of the fall, but gave evidence that, at the time of the fall, there were five cleaners rostered to work at the premises. One cleaner (Juan Hernandez) had ‘responsibility for the area of the staff entrance’.
Mr Hincapie gave evidence that since 2009 or 2010 there had been two mats placed in the entrance, about two or three paces apart: one immediately inside the front door; and the other around a corner to the left, in a small corridor.
Mr Hincapie said that when it was raining there was usually a warning sign placed in the entrance area, just next to the stairs that were just inside (and facing) the front door. He then said:
If the floor is wet, we dry it, but time to time we check.
In cross-examination, Mr Hincapie was asked and answered the following questions:
At that time, that is in July of 2012, were there any instructions that you gave, as the supervisor of Mr Hernandez, as to what he should do when the weather was wet?---As (indistinct words) SOP when it start to rain, we go, we dry the floor, whatever is wet, and we put there the ‘wet floor’ sign.
Sorry, so whenever it’s wet you put a wet - - -?---We dry the floor and then we put there the ‘wet floor’ sign.
Do you do anything else?---No, no, nothing else because anyway they have more jobs to do, so it’s just the sign there and that’s it. From time to time we go and check it and dry the floor if necessary.
Now, from time to time you go back and check the floor?---Yes.
Do you understand that there would be a high volume of people going in and out of the staff entrance area at about 9.45 pm on a work night?---Yes, I understand that.
Do I understand you correctly in saying you don’t take any special precautions in relation to the staff entrance area at that time?---Correct.
So even if it’s a wet night and you have 50 staff members coming in with wet shoes and so on, if you’ve already put the sign up and dried the floor previously, that’s it; is that right?---Yes, right.
So would I be right in understanding that the floor surface at that entrance area is likely to get wet as staff come in on a wet night?---It’s a possibility, yes, but at the same time because we have there both mats, that is going to help to dry the shoes a little bit.
Later in cross-examination, Mr Hincapie was asked and answered the following:
I suggest to you that the floor surface is slippery when it’s wet, isn’t it?---Yes, could be, could be slippery.
Apart from people bringing in water, they can bring in bits of mud and other rubbish on their shoes?---Could be.
Particularly on a wet night. It can get stuck to the sole of the shoe and then be brought in by others?---It’s a possibility.
So as far as your evidence goes, the only protection that workers had from the risk of slipping on a slippery floor surface was a sign and two mats; is that right?---Correct.
Later in cross-examination, Mr Hincapie was asked whether, as the sanitation manager, he thought, ‘from a resource point of view’, that it would be reasonable to have a cleaner at the front entrance when staff members were arriving at 9:45 pm. He said:
Yeah, I would say yes. Yes, I would say yes it would be acceptable, but at the same time because, if the floor is not wet or something, there is not going to be a point to have someone all the time there.
Natasha Pahoff’s evidence
Natasha Pahoff gave evidence that she commenced employment with the defendant as a human resources manager in 2012. The only evidence she gave relevant to the fall was that from the time she commenced employment there had always been two mats: one immediately inside the front door; and the second one, to the left of the entranceway — ‘where the staff progress down the corridor to the factory’.
Plaintiff’s contentions
Relying upon several authorities,[18] the plaintiff submitted that the defendant, as her employer, bore a heavy responsibility to devise, institute and enforce a safe place of work, and a safe system of work, so as to avoid exposing workers, such as herself, to unnecessary or unreasonable risks of injury. Moreover, reasonable care by the defendant required it to take into account any carelessness or inadvertence of its employees, including in not seeing a warning sign.[19]
[18]In particular, Kirby J’s judgment in Liftronic (2001) 75 ALJR 867, 884 [85]. See also Kondis v State Transport Authority (1984) 154 CLR 672, 678; Leighton Contractors v Fox (2009) 240 CLR 1, 12 [21]; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301, [50]–[52].
[19]Czatyrko v Edith Cowan University (2005) 79 ALJR 839, 842–3 [12].
The plaintiff submitted that the accident happened in the following circumstances:
(1)At approximately 9:45 pm on 26 July 2012, the plaintiff slipped and fell after she entered the premises to commence her shift. Other employees were entering at around the same time. The floor at the entrance was tiled. At the time she entered the premises, there was a non-slip mat on the tiled floor at the entrance door, and another such mat to the left of the entrance. There were, however, no mats or other coverings on the tiled floor between the two mats. It was raining at the time. Rain water was able to get onto the floor at the entrance, and had done so previously.
(2)The plaintiff stepped on the entrance door mat, intending to turn left. She stepped off the door mat onto the tiles, turned left and slipped and fell. After the fall, the plaintiff saw water on the floor. She did not see the water before she fell.
(3)There was a warning sign in the entrance area, which was there when the plaintiff entered the premises. The plaintiff did not see the sign before she fell.
(4)The tiles in the entrance area could be slippery when wet (so much was agreed by the defendant’s sanitation manager, Mr Hincapie, in his evidence at trial). There was no evidence, however, that the floor was slippery when dry. That a wet floor is slippery is common sense, and indeed the trial was conducted on that basis. Additionally, it was not disputed that the floor was wet when the plaintiff fell.
The plaintiff submitted that it was reasonably foreseeable by the defendant that there was a risk of an employee slipping on the tiled floor at the entrance to the premises and suffering injury if the tiles were wet at the time when employees were entering the premises, or walking on the tiled floor. She submitted that no reasonable jury could have found otherwise.
The plaintiff also submitted that it was reasonably foreseeable by the defendant that the part of the tiled floor at the entrance to the premises, which was uncovered by mats, was likely to be wet at the time the plaintiff entered the premises, and that no reasonable jury could have found otherwise. It had been raining at the time, sufficient to cause the defendant to put up a ‘wet floor’ sign. The plaintiff also relied upon Mr Hincapie’s evidence that ‘when we have rain[y] days — usually when we know that it is raining, we usually put a wet sign floor [sic] just next to the stairs that are there. If the floor is wet, we dry it, but [from] time to time we check’.
Additionally, the plaintiff submitted that the defendant actually knew that the tiles at the entrance were likely to be wet at the time she entered the premises, and no reasonable jury could have found otherwise. The defendant knew that the tiles were likely to be wet at the time the plaintiff entered the premises because the defendant’s case at trial was that a ‘wet floor’ sign had been put up before the plaintiff entered the building.
The plaintiff contended that it was not open to the jury to find that the placement of a warning sign and intermittent mopping up was a sufficient compliance with the duty of care owed by the defendant to its employees, in view of the fact that the tiles at the entrance were liable to get wet when it was raining, and were wet on the day. There was a ‘cheap and easy alternative method of reducing or eliminating the danger, namely the provision of a few non-slip mats at the entrance’. Moreover, at trial, the defendant did not dispute that it could have obtained extra mats and placed them over the short area between the entrance mat and the left stair mat, or that doing so would have provided a non-slippery surface for its employees to walk on.
Ultimately, the plaintiff contended that the risk to which she was exposed when she fell was unnecessary and unreasonable because it was not prevented or likely to be prevented by the placement of a ‘wet floor’ sign and by intermittent mopping up; and an appropriate and reasonable method of removing or minimising the risk would have been to place a small number of mats on the tiled area where the plaintiff had to walk, or to have positioned a cleaner in the entrance area to mop up any water on the tiles (at least when employees were starting their shifts). The plaintiff submitted that no reasonable jury could have found otherwise.
Defendant’s contentions
In response to proposed ground 1, the defendant observed that no complaint was made about the trial judge’s charge to the jury, which it submitted was consistent with settled legal principles. The defendant referred to its counsel’s address to the jury, noting that the following matters had been highlighted in final address:
(1)There was no ‘inherent danger’ in the use of floor tiles, which ‘are used in buildings right throughout the world’.
(2)There was a small porch area at the entrance, to provide some protection from rain.
(3)There was a very large, non-slip mat at the entrance to the premises.
(4)There was an area with ‘dimples’ at the bottom of the stairs, to protect against slips.
(5)There was a second non-slip mat, at the start of the corridor.
(6)The measures proposed by the plaintiff were those that might be effected in a ‘perfect world’.
(7)There was a warning sign and a cleaner responsible for the area, which was well lit.
The defendant contended that a particular difficulty for the plaintiff in the present case related to the assessment of the risk of injury. The plaintiff could not recall much about the circumstances of the incident, including what shoes she was wearing, or even how she fell. The plaintiff had given differing versions about where the fall occurred (albeit that each version had her falling on tiles somewhere between the two non-slip mats). There was ‘scant evidence about the amount of any water on the floor (or how long it had been there)’. Additionally, there was no evidence of any prior falls, or any evidence of any previous failure in the system which was in place at the time of the fall. The defendant submitted that these were all relevant factors to be taken into account when determining the magnitude of the risk of injury and whether a response to that risk was required.
The defendant submitted that the jury was not required to reach a conclusion that either of the plaintiff’s suggested measures (more mats, or a cleaner on the scene) was required in the exercise of reasonable care. A dedicated cleaner stationed at the entrance could not reasonably have removed all water from the floor surface. Additional mats, unless specifically cut to the dimensions of the entrance area, would be unlikely to cover the whole of the floor surface.
The defendant submitted that the reasonable response to the foreseeable risk of injury was a matter for the jury to determine, ‘bringing to bear the totality of its life experience as members of the community’. While it would have been open on the evidence for the jury to answer question 1A in favour of the plaintiff, it was not irrational or unreasonable for the jury to conclude that there was no negligence on the part of the defendant in respect of the fall.
Consideration
The defendant’s submission that the trial judge charged the jury consistently with settled legal principles may be accepted. In the course of her Honour’s charge, on the issue of whether the defendant acted reasonably, the judge said:
Reasonableness does not mean perfection. The reasonableness of the conduct of the defendant must be tested having regard to what was reasonably foreseeable at the time, not in retrospect. In deciding whether the defendant acted reasonably, it is relevant that there is an affirmative obligation on an employer to consider the issue of accident prevention.
Her Honour’s direction to the jury that there is an affirmative obligation upon an employer to consider the issue of accident prevention was given in conformity with the High Court’s decision in McLean v Tedman.[20] In McLean, Mason, Wilson, Brennan and Dawson JJ said:
The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer.[21]
[20](1984) 155 CLR 306 (‘McLean’).
[21]Ibid 313 (emphasis added, citation omitted).
There is some force in the defendant’s criticisms about the vagueness and lack of particular detail in the plaintiff’s evidence about the precise circumstances of the fall. The issue of whether it was open to the jury not to be satisfied that there was negligence on the part of the defendant in respect of the fall, however, has to be determined by reference to the whole of the evidence (albeit on the basis that the jury took the most favourable view to the respondent which a reasonable jury could take upon that evidence).
The case was conducted at trial by the defendant on the basis that particularly critical evidence relating to the fall was the description of the circumstances of the fall contained in the ambulance officers’ report. When one considers the evidence as a whole, and takes the most favourable view to the respondent, there can be little doubt that the plaintiff slipped on wet tiles which were wet because it was raining outside; the tiles on which the plaintiff slipped were slippery, because they were wet; the defendant, through its relevant employees (including its cleaning staff) knew that the tiles were liable to become wet and slippery when it was raining; and at least one of the defendant’s cleaning staff knew that the tiles had become wet (and thus slippery) on the night of 26 July 2012, before the plaintiff entered the premises.
At the time the plaintiff fell, some 50 employees were coming into the premises to commence their shifts. In the circumstances, it was well-arguable that accident prevention (being one of the modern responsibilities of an employer) required the defendant to place non-slip mats on the tiles so that employees would not have to walk on slippery tiles; alternatively, it was well-arguable that accident prevention required the defendant to station a cleaner in the entranceway to the premises, at least at the commencement of a shift when significant numbers of employees were entering the premises.
On the whole of the evidence given at trial, it was certainly arguable that on the evening of 26 July 2012 the defendant, knowing that the floor at the entranceway of its premises was being made wet by employees arriving at work, should have placed additional non-slip mats on the tiled area of the entrance so that its employees did not risk slipping on the wet tiles. It would not have been necessary to have covered the entire area with non-slip mats. The defendant’s obligation to take reasonable care could easily have been complied with by the provision of a sufficient number of mats so that employees could choose to walk on the mats rather than on the tiles.
The plaintiff’s strongest case at trial was for the provision of extra mats which would have obviated the need for her to walk on wet and slippery tiles. Undoubtedly, the taking of that step would (assuming the plaintiff had then walked on such mats) have obviated the risk of injury. It could reasonably be argued that such a step (the provision of extra mats) would have discharged the duty to take reasonable care that the defendant owed to the plaintiff on the evening of 26 July 2012.
It is not, however, to the point that this Court might think that the plaintiff’s case on the issue of negligence in relation to her fall was well-arguable. The burden of proof was on the plaintiff. The jury’s verdict that it was not satisfied on the balance of probabilities that there was any negligence in respect of the plaintiff’s fall cannot be set aside, and a contrary verdict entered, unless the jury could have done nothing else but find in accordance with the plaintiff’s contention.[22]
[22]Calin (1991) 173 CLR 33, 46–7 (per Brennan J).
It was a matter for the jury, exercising its collective wisdom and experience,[23] to determine whether the defendant’s system and conduct on the evening of the fall was reasonable. That system involved the provision of two non-slip mats, a warning sign and a cleaner (albeit one who was not present in the vicinity of the fall on a continuous basis). Plainly, the defendant’s system could not be said to have met a standard of perfection — but it did not have to be. It only had to meet the requisite standard of reasonableness — a judgment about which ‘might involve the application of a measure, not in the evidence, but in the wisdom and experience of those who make the decision’.[24] The exercise of reasonable care did not require the taking of steps that guaranteed, in absolute terms, the removal of all risks (in this case, of slipping) no matter how small.
[23]See Swain (2004) 220 CLR 517, 521-2 [8] (Gleeson CJ), but noting Fairfax (2003) 77 ALJR 1657, 1676 [114] (per Kirby J) as to the absence of any ‘mystical immunity from appellate review’ associated with jury verdicts.
[24]Swain (2004) 220 CLR 517, 521-2 [8] (per Gleeson CJ).
The jury saw and heard the plaintiff, Mr Hincapie and Ms Pahoff. Individual members of the jury may have been impressed or unimpressed by particular parts of their evidence. Notwithstanding the contents of the ambulance record and the accident/incident injury form, the jury might have taken the view that the plaintiff’s evidence was so lacking in detail that they could not be affirmatively satisfied that the plaintiff slipped ‘on the large puddle of water’ referred to therein — and thus any negligence in permitting such a puddle to exist had not been shown by the plaintiff to have involved negligence ‘in respect of the plaintiff’s fall’.
In short, having reviewed all of the evidence for ourselves, while this was a case upon which the plaintiff could have succeeded, we are unable to conclude that the jury, acting reasonably, could do nothing else but find for the plaintiff on the issue of negligence in relation to the fall. It is to be remembered that the jury’s answer to question 1A did not involve an affirmative finding that there was no negligence in respect of the fall. Instead, the verdict reflected the jury’s conclusion that, after weighing up the whole of the evidence, the jury was not affirmatively satisfied that there was negligence in respect of the fall.
It follows from what we have said above that proposed ground 1 must be rejected.
PROPOSED GROUND 2
Proposed ground 2 relates to the plaintiff’s second cause of action, the return to work claim. In the return to work claim, the plaintiff claimed that she suffered psychiatric injury as a result of ‘prolonged exposure to workplace bullying/harassment and/or stress from April 2013 until July 2013’. In her further amended statement of claim,[25] the plaintiff provided 22 paragraphs of particulars of this claim. Those particulars included complaints about:
[25]Filed pursuant to leave granted by the trial judge on day 12 of the trial.
·a meeting the plaintiff attended with Ms Parhoff, Joseph Campbell (the defendant’s occupational health and safety officer) and Kerri Martin (assistant to the defendant’s human resources manager) on 8 April 2013;
·a meeting between the plaintiff, Mr Campbell and Ms Martin on 28 May 2013;
·the plaintiff being directed to attend a meeting at the defendant’s premises on 11 June 2013, which meeting did not take place;
·a meeting between the plaintiff, Ms Parhoff and Ms Martin, on 4 July 2013, which meeting was recorded without the plaintiff’s knowledge or consent;
·various conversations the plaintiff had with Mr Campbell and/or Ms Martin and/or a shift supervisor (Mr Bansal);
·Mr Campbell contacting the plaintiff’s sister and daughter without the plaintiff’s consent;
·the circumstances in which return to work plans, described as ‘the first plan’, ‘the second plan’ and ‘the third plan’, were prepared and/or the terms of those plans; and
·various emails sent by Mr Campbell to the plaintiff.
In answering question 2A ‘yes’, the jury found that there was negligence on the part of the defendant in respect of the plaintiff’s return to work in the period from April to 12 July 2013. In proposed ground 2, the plaintiff contends that the jury’s verdict of ‘no’ in answer to question 2B, asking whether this negligence was a cause of psychiatric injury to the plaintiff, was one which no reasonable jury could reach.
Return to work evidence
The plaintiff gave evidence that she was off work for approximately one week, ‘maybe up to two weeks’. She then resumed on full-time duties. In November 2012, she had a dispute with the defendant concerning a disclosure she made about her suffering from epilepsy. The plaintiff said that she was given a warning for disclosing that she had epilepsy, ‘because they did not believe me’.
On about 3 April 2013, after the performance of a CT scan on 22 February 2013, the plaintiff was fitted with a CAM boot[26] to be worn on her left leg. The defendant did not have any work duties available for the plaintiff while she was fitted with the CAM boot. The plaintiff’s evidence was that she was told that she could not work in the factory without steel-capped boots. On 17 June 2013, when the CAM boot was able to be removed, the plaintiff returned to work on reduced hours and alternative duties.
[26]Also known as a moon boot, CAM being an acronym for controlled ankle motion.
Between May and July 2013, Mr Campbell prepared the three return to work plans to which we have already referred (dated 29 May 2013, 17 June 2013 and 27 July 2013[27]). Mr Campbell attempted to contact the plaintiff’s general practitioner, Dr Arthur Bablis, on numerous occasions, including to discuss what duties might be appropriate for the plaintiff. Dr Bablis said that he considered certificates of capacity were the way in which he communicated with the employer about what she was capable of performing; he ‘does not hold telephone conversations with third parties’.
[27]Although the third plan was dated 26 July 2013, it was common ground at trial that the correct date of the third plan was 26 June 2013.
The plaintiff’s evidence was that she felt pulled between her employer and her general practitioner, in circumstances where the third return to work plan in particular was inconsistent with Dr Bablis’ certification for her to work for four hours a day.
At some point in the return to work period (ie between April and July 2013), the plaintiff was asked to contact the defendant on a daily basis. Mr Campbell’s evidence was that there were issues with contacting the plaintiff. The plaintiff said that she felt harassed by the requirement to contact the defendant on a daily basis.
During the return to work period, the plaintiff had communications with Mr Campbell, Ms Martin and Ms Pahoff. Those communications included letters, emails and meetings on 28 May 2013 and 4 July 2013, which were recorded.
The plaintiff’s evidence was that she felt intimidated by Ms Martin, who told her she should comply with the return to work program, and that having time off involved the defendant having to hire a casual to replace her on the shift and that the WorkCover claim would result in increased premiums for the defendant. Ms Martin’s evidence was that she would not know about premiums, and that as there was often a large number of agency staff she did not think she would have said anything to the plaintiff about her absence from work resulting in a casual needing to be hired.
Ms Pahoff said that the anxiety and stress as a result of intimidation and harassment (referred to on a WorkCover certificate of 17 June 2013) was a different injury and needed to be examined by CGU. Ms Pahoff’s evidence was that the defendant vehemently denied any intimidation and harassment of the plaintiff. Ms Pahoff referred the issue to CGU, and also wrote to the plaintiff and asked her to come in and discuss the circumstances of her suffering stress and anxiety.
During the meeting on 4 July 2013, involving the plaintiff, Ms Pahoff and Ms Martin, there was a discussion about the harassment and intimidation which had been referenced on her certificate of capacity. The plaintiff stated that there had been an incident when she worked a few days earlier, and that the defendant would need to get the camera footage of the factory floor to see what had happened. She also referred to problems with a former occupational health and safety employee, and the leading hand, dating back to 2010.
The plaintiff said that the meeting on 4 July 2013 was recorded without her knowledge and consent. She described wires coming out of the recording device, and said she was devastated when she saw that Ms Martin had secretly recorded it. Ms Martin said it was her standard practice to record meetings, as she was bad at talking and taking notes at the same time. She said it was her practice to ask for a person’s consent and that if it was given then she would start the recording. Ms Pahoff said there was no practice to record all the meetings but when they were recorded, the device would be placed on the table for all to see. She said they would use small digital recorders that did not have wires.
Dr Bablis said the plaintiff attended him on 17 June 2013 and reported to him feeling stressed by the return to work process. Issues of anxiety, stress, harassment, ridicule, issues dragging out and job security were noted on subsequent attendances on 27 June 2013, 2 July 2013, 8 July 2013 and 11 July 2013. On 11 July 2013, Dr Bablis certified the plaintiff as unfit for all duties, and referred her to a psychiatrist, Dr Despina Mouratides.
Medical evidence
Dr Arthur Bablis
Dr Bablis gave evidence of his various consultations with the plaintiff as her general practitioner. From May 2013, he recorded histories of the plaintiff feeling harassed in respect of ‘constant calls from [her] employer’ and the plaintiff’s belief that the defendant was ‘trying to railroad her to return to fulltime work’.[28] Dr Bablis noted that the plaintiff was becoming increasingly anxious and stressed. He also diagnosed her as suffering from depression.
[28]The first such history was recorded in Dr Bablis’ clinical note dated 30 May 2013.
Dr Despina Mouratides
The plaintiff tendered three reports (dated 24 March 2014, 17 December 2015 and 1 January 2018) from her treating psychiatrist, Dr Mouratides. She was not, however, called as a witness at trial.
Dr Mouratides first saw the plaintiff in November 2013, at the request of Dr Bablis. She took a history of the plaintiff becoming depressed as a result of treatment she received at work, both before and after the fall. That history included the plaintiff being bullied and harassed by a night forelady when the plaintiff was demoted in about 2009/2010; together with a history of the plaintiff’s complaints about her treatment by the defendant between April and July 2013. Dr Mouratides’ diagnoses were Post-Traumatic Stress Disorder, Major Depressive Illness, Panic Disorder and Generalised Anxiety, secondary to Agoraphobia. Dr Mouratides noted that the plaintiff’s symptoms started in 2012, before she was ultimately diagnosed in 2013.
In her final report, Dr Mouratides expressed the opinion that the plaintiff’s treatment by the defendant had ‘had a very detrimental effect on her life’.
Dr Rebecca Riseley
At trial, the plaintiff called her treating psychologist, Dr Riseley. Dr Riseley saw the plaintiff in her professional capacity on 14 occasions from May 2018. She took a history of the plaintiff suffering physical injury as a result of the fall, and then suffering subsequent psychiatric injury. In a report dated 15 March 2021, Dr Riseley said that the plaintiff ‘indicated no significant prior psychiatric history, with no serious mental health illnesses or injuries reported’. Dr Riseley diagnosed the plaintiff as suffering from Depression, Anxiety and Panic Disorder with Agoraphobia.
In her report of 15 March 2021, Dr Riseley also took a history from the plaintiff about matters that occurred at work before the fall, together with a history of the plaintiff’s current situation, as follows:
Ms Ross discussed her wish to not have to live with her memories and trauma related to being bullied at work. Ms Ross has vivid, ongoing and recurrent memories of being bullied in her workplace. She recounts feeling belittled, undermined and intimidated. The tactics reportedly used by Ms Ross’ supervisor included but were not limited to yelling at her, standover tactics, fearmongering, the formation of alliances, exclusion, demotion, false allegations, complaints about Ms Ross’ performance, mismanagement, withholding of overtime, recording of conversations and personalised attacks. Ms Ross expressed self-recrimination believing that she let herself down by not standing up to her bully and by ‘allowing’ someone to treat her so badly.
Ms Ross frequently ruminates about her ‘losses’ which she reports to include but are not limited to; the life she was living, her capacity to attend to her daily living tasks, the daily requirement to manage her pain and suffering … .
Dr Riseley’s opinion as to the relationship between the plaintiff’s psychiatric condition and her employment with the defendant was set out in her report of 15 March 2021 as follows:
a) Whether she developed a psychiatric condition secondary to her left foot injury
Prior to Ms Ross’ foot injury there was no evidence of depressive or anxiety symptoms. Therefore, it is likely that the foot injury and the development of her psychological conditions are related.
b) Whether her employment caused, aggravated, exacerbated or accelerated a primary psychiatric condition, or resulted in a recurrence or deterioration of such a condition
Based on the information presented throughout this report, Ms Ross’ psychological conditions were likely triggered by her employment experience and were and continue to be exacerbated by her employment.
c) Whether her employment was a significant contributing factor in the development of a primary and/or secondary condition
Ms Ross’ employment was a significant contributing factor in the development of her psychological depressive, anxiety, panic and agoraphobia symptoms.
d) Whether the employment remains a significant contributing factor to a primary and/or secondary condition
Ms Ross’ perception of her former employer/employment continues to contribute to her psychological conditions.
Dr Mark Vella
The plaintiff tendered a report (dated 24 July 2013) and a letter (undated) from Dr Mark Vella. Dr Vella was the psychiatry registrar of a Crisis Assessment and Treatment Team (‘CATT’). Dr Vella’s report recorded that the plaintiff had initially been referred to CATT, ‘after a “nervous breakdown” which she relates to long-standing difficulty in her workplace, worsened since breaking her leg in a workplace accident’.
In his report, Dr Vella noted that the plaintiff was ‘under the impression her workplace [was] trying to terminate her employment’. He said that the plaintiff was diagnosed with a major depressive episode, ‘likely the result of workplace stress’. The report concluded:
Her current psychological functioning is significantly below pre-morbid levels, and it does appear that her workplace stress is a major precipitant.
In his undated letter, Dr Vella referred to the plaintiff’s description of ‘working on a broken foot for a time in fear of taking more sick leave and angering her employer’. Dr Vella said that it appeared ‘that [the plaintiff’s] psychological deterioration [was] largely the result of concern for her job’.
In addition to tendering Dr Vella’s report and letter, the plaintiff tendered a discharge summary (‘the discharge summary’) completed by Dr Vella and a consultant psychiatrist, Dr Raju Lakshama. The discharge summary recorded that the plaintiff was admitted to hospital on 6 August 2013, and discharged on 13 September 2013. The discharge summary recorded the plaintiff’s presenting complaint as follows:
Joann is a 44 year old mother of three daughters who was referred to N-CATT under WorkCover with severe depressive symptoms in the context of workplace bullying. She describes her work as being ‘trying to get rid of her’ and when she broke her foot at work, she tried to work on it for some time for fear of being accused of inappropriate absenteeism. When her fracture was diagnosed, she reports harassment from her employer (on a daily basis) to elicit details about her return to work and describes their unwillingness to conform to plans made by her doctors.
The discharge summary recorded the plaintiff’s diagnosis as, ‘Major Depressive Disorder’ and ‘Anxiety Disorder NOS’.
The discharge summary did not specifically address the issue of causation that underlies proposed ground 3. However, it contained the following:
Her workplace is the vehicle through which she is able to provide for her children, which Joann sees as her main purpose. Perhaps an element of guilt at the working hours she had as her children were growing up is part of this. The threat of her loss of job is too difficult to bear; she endures [a] difficult working environment under a constant threat of being hassled by her bosses, to the point of working on a broken foot to avoid taking more leave. Stuck for the first time in a situation she can neither tackle head on nor avoid, Joann decompensates and the world becomes hostile, with her developing anxiety and depressive symptoms. Importantly, her past history of head injury and epilepsy has an impact, potentially impacting on the range of coping strategies she is able to utilise, and thus, her ability to cope with these stressors. Potentially subtle cognitive deficits are the cause of her workplace targeting her for dismissal to begin with, as may be her avoidant behaviour manifesting as absenteeism (although Joann has explained it has related to her neurological and gynaecological conditions which are consistent with her history). Work is likely to remain a perpetuating factor here, as is Joann’s avoidant style.
Ms Laura Cook
The plaintiff tendered two reports (dated 4 October and 19 November 2013) from Ms Laura Cook. Ms Cook saw the plaintiff on some six occasions, on referral from Dr Bablis. The history taken by Ms Cook included one of the plaintiff being subjected to harassment by a leading hand at work; the plaintiff’s work blaming her for the conflict between her and the leading hand; the plaintiff being upset that her workplace did not believe that she had epilepsy; and an accusation that the plaintiff had lied about taking time off for treatment of her epilepsy, and giving her a warning.
In her second report, Ms Cook expressed the opinion that the plaintiff met the diagnostic criteria ‘for an Axis 1 disorder of Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic’.
Professor Saroja Krishnaswamy
The plaintiff tendered two reports (dated 2 March and 6 April 2021) from Professor Saroja Krishnaswamy to Dr Bablis. The reports related to a telehealth conversation Professor Krishnaswamy had with the plaintiff, on referral from Dr Bablis, on 2 March 2021.
While Professor Krishnaswamy’s reports do not deal with the causation issue currently before the Court, they contained the following history:
Jo tells me that in 2010 she was harassed and bullied at work and broke her leg in 2012 and continued to work when it was broken and she was standing for too long, for almost eight hours a day, and only in March 2013 did she find out it was broken. She then took time off to get the fracture worked out and she stated she had a breakdown then and she called it a ‘nervous breakdown’. She took work to court at that time and one of the psychiatrists called Dr Jager who saw her when she was not in a right frame of mind said upset her so much she walked out [sic]. He then wrote a negative comment about her and she therefore lost WorkCover claims. She said she then spent six weeks in North Park Hospital and after that had lost her job and her house. She got some claims back including 77 weeks of pay and some injury claims then she took work to court then [sic]. At this point, since 2016, the lawyer is now looking into claims against work into paying suffering and serious injury claims [sic]. She said since then she’s feeling as though she’s having another nervous breakdown, she’s got headaches, she can’t breathe, and she feels dead inside, anxious and has become sad. In the last one year, when she was not seeing a psychiatrist because she couldn’t get a psychiatrist because she’s gotten worse and she describes various symptoms now where she thinks she is going downhill particularly as they are revisiting the work claims, there has also been the virus and the lockdown, not having a psychiatrist although she continues to see a psychologist [sic].
Plaintiff’s contentions
The plaintiff’s first contention in this Court, with respect to proposed ground 2, was that the jury’s verdict that the defendant was negligent in respect of her return to work, but that that negligence was not a cause of psychiatric injury to her, could theoretically be explained on one of two bases. Either the jury considered that the plaintiff ‘did not have her alleged psychiatric injury’; alternatively, the jury considered that the plaintiff’s psychiatric injury was not caused by the defendant’s negligence (whatever that negligence was found to have been by the jury).
The plaintiff then submitted that the jury did not give its verdict on the first of these two alternative basis, because of the use of the definite article in question 2B, as read by the judge’s associate, when the jury’s verdict was taken. In further support of this submission, the plaintiff noted that, at trial, the defendant did not challenge the fact that the plaintiff suffered from a psychiatric injury (whatever its cause may have been).
The plaintiff then turned to the second of the alternative bases upon which question 2B might have been answered ‘no’. As to what negligence the jury actually found in respect of the plaintiff’s return to work, the plaintiff observed that, during the judge’s charge, her Honour ‘treated the case as put by the [plaintiff] as one of a failure to consult, ie as a breach of the [defendant’s] return to work obligations’. It was then submitted that the jury was ‘bound to accept this characterisation’. Then, after referring to the judge’s charge on causation, and the defendant’s limited submissions on causation in its final address, the plaintiff referred to the expert medical evidence of Dr Bablis, Dr Riseley, Ms Cook, Dr Vella and Dr Mouratides, before submitting that no reasonable jury ‘would have found’ that the defendant’s negligence was not a cause of the plaintiff’s psychiatric injury.
In oral argument, the applicant contended that the jury’s affirmative answer to question 2A (that there was negligence on the part of the defendant in respect of the plaintiff’s return to work) meant that the jury found that it was reasonably foreseeable that there was a risk that the plaintiff would suffer psychiatric injury if the defendant failed to take reasonable care in relation to her return to work. The applicant then submitted that the risk which was reasonably foreseeable eventuated, and that no reasonable jury could conclude otherwise. The applicant submitted that it then followed that it was unreasonable for the jury not to have found that the defendant’s negligence in respect of the plaintiff’s return to work was a cause of her psychiatric injury — a foreseeable risk of psychiatric injury occurring if there was negligence of the part of the defendant, having eventuated.
Defendant’s contentions
In response to proposed ground 2, the defendant observed that the plaintiff’s case on the return to work claim was put on a number of bases, some of which the jury may have concluded involved negligence on its part, without resulting in any consequential psychiatric injury to the plaintiff. The respondent submitted that the medical opinions — which it noted were dependent upon the reliability and credibility of the plaintiff’s accounts — did not compel a causative finding between any particular incident of negligence found by the jury and any psychiatric injury suffered by the plaintiff.
In support of that submission, the respondent noted, by way of example, that the jury might have accepted that it was unreasonable for the defendant to return the plaintiff to work on 17 June 2013 (the day on which she was first medically certified as capable of returning), in circumstances where there was no evidence that this return to work was causative of any psychiatric injury. Likewise, the jury might have concluded that the requirement that the plaintiff telephone the defendant every day was negligent, but not have been satisfied that this was causative of any psychiatric injury.
Consideration
The plaintiff’s submission that the jury’s negative answer to question 2B can be explained by the jury either not accepting that the plaintiff had any psychiatric injury, or by concluding that the negligence it found in respect of the plaintiff’s return to work was not a cause of whatever psychiatric injury from which the plaintiff suffered, may be accepted. The plaintiff’s reliance upon the use of the definite article when question 2B was read to the jury is, however, misplaced. The jury’s verdict (the answer ‘no’ to question 2B) was agreed by the jury in its deliberations on that question as originally framed and not containing the definite article before the words ‘psychiatric injury’.
While it was perhaps unfortunate that the judge’s associate inserted a word into question 2B, without the parties or the judge taking up the issue and requiring the question to be read as agreed, in the circumstances of this case it is not necessary to say any more about this issue. This is because it is plain from the evidence that the plaintiff did suffer from various psychiatric conditions requiring consultations with, and treatment by, medical practitioners from time to time in the years after 2010. While putting causation in issue at trial, the defendant did not challenge this basal proposition.
The difficulty for the plaintiff with respect to proposed ground 2 is that little (if any) attention was given at trial to the issue of whether any and which of the particular incidents about which the plaintiff made complaint could be said to be a cause of any psychiatric injury suffered by the plaintiff. The medical evidence on causation was expressed at a high level of generality. It is not possible to identify some particular episode that formed part of the return to work claim which the jury must have concluded involved negligence — and in respect of which no reasonable jury could have failed to be satisfied on the balance of probabilities that it was a cause of the plaintiff suffering psychiatric injury. In order to be successful at trial in respect of any of the return to work episodes, far greater attention had to be paid by the plaintiff to evidence that might have been capable of being given at trial about what (if any) injury was suffered as a result of that episode or episodes.
The plaintiff’s difficulties with causation are not overcome by the assertion that the jury’s finding of negligence contained within it an acceptance of the proposition that the risk of psychiatric injury (if there was negligence on the part of the defendant) was reasonably foreseeable and that that risk had ultimately eventuated. One cannot know which of the various episodes relied upon by the plaintiff to establish negligence the jury accepted. It was open, on the whole of the evidence, for the jury to have been satisfied that there was negligence in respect of as few as only one of the plaintiff’s many complaints about what occurred between April and July 2013, and then not to be satisfied that that negligence was a cause of any psychiatric injury.
In view of the paucity of evidence on the issue of causation in relation to the return to work claim, there is no basis for concluding that it was not open to the jury not to be satisfied on the balance of probabilities that the negligence it found in respect of the plaintiff’s return to work between April and July 2013 was a cause of psychiatric injury to the plaintiff. Far from the medical evidence mandating an answer favourable to the plaintiff on the issue of causation, the histories given by the plaintiff to the various medical experts of multiple events and incidents (both before and after April 2013) made it difficult, in the absence of further elucidation, to say that any particular event (and more particularly any event occurring between April and July 2013 which formed part of the return to work claim, and which the jury found involved a breach of duty by the defendant) was a cause of any psychiatric injury to the plaintiff.
It follows from what we have said above that proposed ground 2 must be rejected.
Conclusion
Proposed ground 1, but not proposed ground 2, was sufficiently arguable to justify a grant of leave to appeal being made in respect of it. For the reasons given above, however, the appeal will be dismissed.
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