State of NSW v Coffey

CITATION:	State of NSW v Coffey [2002] NSWCA 361
FILE NUMBER(S):	CA 40957 of 2001
HEARING DATE(S):	28/10/02
JUDGMENT DATE:	7 November 2002
PARTIES :	State of New South Wales v William Coffey
JUDGMENT OF:	Meagher JA at 1; Heydon JA at 18; Ipp JA at 19

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 2291 of 1999
LOWER COURT JUDICIAL OFFICER :	Hosking DCJ

COUNSEL:	A: Mr Burbidge QC with Mr Wynyard R: Mr Toomey QC with Mr Walker
SOLICITORS:	A: Gillis Delaney Brown R: Denis M Amderson
CATCHWORDS:	District Court - psychologically injured worker - safe system of work - appeal allowed.
CASES CITED:	Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Pioneer Construction Material Pty Ltd v Millsom [2002] NSWCA 258 (unreported, 28 August 2002)
DECISION:	1. Appeal allowed; 2. Judgment and verdict below set aside; 3. In lieu of verdict for the plaintiff in the amount of $463,947.00, verdict for the plaintiff in the amount of $459,478.0; 4. The appellant to pay the costs of the appeal, and of the trial.

CA 40957 of 2001

MEAGHER JA
HEYDON JA
IPP JA

Thursday, 7 November 2002

STATE OF NEW SOUTH WALES v COFFEY

Facts
The respondent, Mr Coffey, worked as a caretaker/manager of blocks of Housing Commission flats in Surry Hills from July 1988 to December 1996. During this period, the tenants subjected him to abuse, threats and various accusations. The respondent also had the misfortune of witnessing a number of murders or suicides, the result of which he had to deal with. On several occasions, the respondent requested that security screens be erected on the counter, but his requests were denied. He also asked for legal support, but got none. When the respondent left his job in 1996, he was suffering depression, post traumatic stress disorder and chronic dysthymia.

There was evidence (in the form of an expert report), which the trial judge accepted, that the appellant could have provided the respondent with a grille over the counter, as well as systematic counselling. The appellant did not oppose the admission of this document; nor did they seek to cross-examine on it or lead any evidence to the contrary.

The appellant did have, and provided on one occasion, a counselling service to the respondent. At all times, he could have asked, but did not, for further therapy. On appeal, the appellant admitted the duty it owed to the respondent, and could not deny the breach as found by the trial judge.

Held
A psychologically injured worker often either does not know of his condition or else is too tired to ask for it. Moreover, merely to provide a service to be availed of at the will of the worker does not absolve an employer from performing his duty of care to take reasonable steps to ensure that a safe system of work is in place: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301.

Orders

1. Appeal allowed;

2.…