State of Queensland v Barney
[2013] QCATA 104
•1 May 2013
| CITATION: | State of Queensland & Anor v Barney [2013] QCATA 104 |
| PARTIES: | State of Queensland and Wendy Petersen |
| V | |
| George Fleetwood Barney (Respondent) |
| APPLICATION NUMBER: | APL418-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 15 April 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Mr Richard Oliver, Senior Member |
| DELIVERED ON: | 1 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The Appeal is refused. |
| CATCHWORDS: | APPEAL – ANTI-DISCRIMINATION – DIRECT DISCRIMINATION – RACIAL VILIFICATION – VICARIOUS LIABILITY – COMPENSATION –DAMAGES – QUANTUM – ONUS OF PROOF – where the respondent was the victim of direct racial discrimination during the course of employment – where the respondent developed a depressive illness and took leave – where the respondent brought proceedings claiming compensation for loss and damage caused by the contravention of the Anti-Discrimination Act 1991 – where the Tribunal ordered the appellants to pay the respondent a total award of $76,704.81 – where the total award included general damages which were discounted by 30% – where the appellants appeal that decision – where the appellants contend the total award was excessive and assessed on wrong principles – where the appellants argue the respondent failed to establish that the acts of discrimination were a significant or material cause of the respondent’s illness and associated economic loss – where the appellants argue the Tribunal erred in placing the onus of proof on them to establish the illness was not wholly or partly the result of a pre-existing condition – whether the respondent adduced sufficient evidence to establish the illness was wholly or partly caused by the discriminatory acts – whether the total award was manifestly excessive – whether the appeal should be granted Anti-Discrimination Act 1991 (Qld), s 204, s 209(1)(b) Barney v State of Queensland & Anor [2012] QCAT 695, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS: | Mr S Keim SC instructed by Crown Law for both Appellants |
| RESPONDENT: | Mr Barney on his own behalf |
REASONS FOR DECISION
Mr Barney is of indigenous heritage and actively involved in the indigenous community,[1] facts well-known to his fellow employees in the Department of Communities (‘the Department’) where he has worked for almost two decades.
[1] The Butchulla people, from in and around the K’gari (Fraser Island)/Hervey Bay area.
Mr Barney complained that he was the victim of racial discrimination in the course of his employment as a Residential Care Officer with the Department. He brought proceedings claiming compensation for loss and damage against the State of the Queensland (‘the State’) and Ms Petersen, a fellow employee.
A Member of the Queensland Civil and Administrative Tribunal heard the proceedings at Hervey Bay over five days between 22 February and 23 October 2012 and on 1 November delivered his decision, with written Reasons, that the State and Ms Petersen pay Mr Barney $76,704.81 for damages.[2]
[2] Barney v State of Queensland & Anor [2012] QCAT 695.
The State and Ms Petersen appeal the decision but only as to the amount of the award which they say was excessive, and assessed on wrong principles.
The hearing of Mr Barney’s proceedings was long and difficult because, as the learned Member observed,[3] he represented himself and had a panoply of complaints against both Ms Petersen and others who managed him in his employment, some of which related to matters of discrimination and others to what he saw as poor management practices.
[3] Ibid [5] – [7].
In the learned Member’s lengthy and, with respect, detailed and careful reasons he separated and considered each of Mr Barney’s complaints and, ultimately, determined that he had been the victim, in particular instances which were identified, of direct racial discrimination prohibited under the Anti-Discrimination Act 1991 (Qld) (‘the ADA”) and that he was entitled to compensation from the perpetrators, Ms Petersen and (vicariously, as her employer) the State.
First, the learned Member found that Ms Petersen had refused to swap a shift with Mr Barney in about July 2007 and, in doing so, had said to fellow staff members: ‘I don’t want to go there because the black fella is going to be on there’; and, ‘I’ve got to go and work with that black one’ or similar words which, whatever their content, contained racial epithets.
Secondly, Mr Barney alleged that Ms Petersen, having been directed by a superior to apologise for those statements, said words during a telephone conversation with him on 9 September 2007 like: ‘You are black, black, black, just accept it’. The Tribunal found that, while she may not have used those exact words, she again referred to his race by reference to colour and, in doing so, made inappropriate racial comments.[4]
[4] Ibid [63] – [66].
Thirdly, Ms Petersen made similar comments to other employees about Mr Barney on at least one other occasion, referring to him as ‘the black fella’ which the learned Member again characterised as ‘racial epithets’[5].
[5] Ibid [67] – [75].
Mr Barney, it was found, became aware on 19 July 2007 of at least one of these instances.
Mr Barney went off work (on medical advice) a short time later, on 31 July 2007. His symptoms were mental, not physical. He remained away from work on leave for a period which is not stated in the Reasons below but appears to have been something approaching, but less than, two years. By the time of the hearing he was back on full duties.
The only medical evidence came from his GP Dr McKeon and a psychiatrist Dr Mungomery, whose report noted that Mr Barney had been diagnosed with a ‘current major depressive episode’ on 31 July 2007.
The learned Member assessed Mr Barney’s general damages at $55,000, which he then discounted to $40,000, and damages for lost income at a net (after tax) figure of $21,089 which he did not discount. He allowed interest on both these sums at 4% from 31 July 2007, for a total award of $76,704.81.
The discounting for general damages of slightly under 30% was applied because, as the learned Member accepted, ‘Mr Barney’s depressive illness may not have been entirely caused by the acts of discrimination’[6] and his history of depression at earlier times, and his perceptions of mismanagement in his employment, may also have played some part. The figure for past economic loss was not, however, discounted because of what the learned Member found to be a clear temporal connection between the offending instances, and the commencement of his sick leave.[7]
[6] Ibid [135], [144] – [145].
[7] Ibid [143].
No challenge was made by the State and Ms Petersen to the learned Member’s findings about breaches of the ADA or his decision to allow monetary damages, nor the ‘raw’ figures he adopted for non-economic damages and economic loss, or the interest calculation he made.
In particular, in oral submissions Senior Counsel made it clear the appellants did not challenge the assessment of $55,000 as the starting point, as it were, for properly measuring all the things falling within the realm of non-economic loss here (described, shortly, in the ADA as ‘compensation for loss or damage caused by the contravention’[8]).
[8] ADA s 209(1)(b).
Rather, the appellants say, the discounting was far too little and should have been in the order of 95% for both heads of damage. That major discounting is warranted because, it is argued, the evidence showed that a number of other things of which Mr Barney complained in the workplace were not discriminatory and not compensable under the ADA but had a major, causative role in his subsequent ill-health, and absence from work.
Mr Barney advanced, it is clear, a case before the Tribunal which relied upon a number of events of alleged discrimination over and above those involving Ms Petersen. They included his employer’s alleged insistence that he work on rosters, and attend training with, Ms Petersen despite his complaints about her discriminatory statements; his immediate supervisor’s failure to respond appropriately to those complaints; and, discriminatory conduct by the employer around his redeployment and work situation[9].
[9] Barney v State of Queensland & Anor [2012] QCAT 695 at [10].
The learned Member considered each of these additional allegations in some detail, and found that none of them involved a contravention of the ADA.[10]
[10] Ibid [98] – [106].
When he came to assess damages he was obliged to take these matters into account and, also, parts of the limited medical evidence which suggested Mr Barney’s problems might be attributed, according to Dr Mungomery, to ‘a number of reported workplace stressors including bullying, harassment and racial abuse’.[11]
[11] Dr Mungomery’s report 13 February 2008, at [43].
The learned Member’s failure to apply a discounting of the order for which the appellants contend occurred, they now argue, because he wrongly shifted the onus of proof about loss and damage from Mr Barney to them and erroneously held that, because they failed to call evidence to establish the effects of any unrelated matters that might have caused or contributed to his illness, like bullying or harassment or difficulties with his superiors, the discounting should be relatively small.
In doing so the Tribunal, it is said, misapplied the principles laid down by the High Court in Watts v Rake[12] and Purkess v Crittenden[13]. Those cases establish that, when a claimant for damages in a personal injuries case is able to show a clear causal link between the defendant’s negligent conduct and the claimant’s injury, a defendant who wishes to prove that the injury is wholly or partly the result of some pre-existing or unconnected disability bears the onus of establishing that and separating out, as it were, the different causative factors with some precision.
[12] (1960) 108 CLR 158 at 163.
[13] (1965) 114 CLR 164 at 167-9.
This burden only passes to the defendant, of course, after the claimant has first discharged the primary burden of establishing a clear causal link between wrongful event, and injury.
It is argued that the Tribunal wrongly found, here, that this burden had passed so that it fell upon the State and Ms Petersen when, on Mr Barney’s own case, he had failed to establish such a clear causal link between the offending discriminatory acts and his depressive condition.
Rather, it is said, his case failed to establish that those acts were a significant or material cause of his condition and associated economic loss – in other words, that he failed at the first hurdle of those tests because his evidence did not establish a causal connection between his ‘injury’ and the offending conduct.
The learned Member’s reasons address these matters at considerable length, in terms which make it clear that he was alert to the questions they raised.
He acknowledged, at several places, that the only substantial medical evidence he had – Dr Mungomery’s report – spoke in terms suggesting a mild history of depressive illness dating back to 2001; and, that Dr Mungomery spoke of:
… a number of reported workplace stressors involving bullying, harassment and racial abuse… in combination with more long-standing heavy workload in his role as a residential care officer… [which] has resulted in Mr Barney developing a range of depressive and anxiety symptoms which he most recently began to receive treatment for in July 2007[.][14]
[14] Dr Mungomery’s report 13 February 2008, at [43] and [44].
The learned Member carefully summarised this evidence at paragraph [121] of his Reasons, in terms which fairly reflect an acknowledgment that the psychiatrist was attributing some causative explanation for Mr Barney’s depressive condition to factors arising in his employment which were not the subject of adverse findings against the respondents. That acknowledgement was reaffirmed in paragraphs [124] and [125].
The question of Mr Barney’s onus of proof,[15] in the face of the uncertainties engendered by this evidence was, however, directly addressed by the learned Member at paragraphs [141], [142] and [143].
[15] Which, unsurprisingly, always lay primarily upon him: ADA s 204.
In the first, he observed:
It is undoubtedly the case that Mr Barney’s mental state was impacted upon by his perception of his treatment by management, which the Tribunal has found not to be discriminatory. It is also the case that Mr Barney had some history of depression prior to June 2007, and worked in a stressful environment.
In the second, he said:
There is no evidence, however, of a significant history of extended periods off work as a result of depression until Mr Barney became aware of at least some of the comments made by Ms Petersen… (emphasis added)
At paragraph [143], the learned Member makes a specific finding that:
… the cause of Mr Barney ceasing work was the effect of becoming aware of the incident… regarding Ms Petersen and that her subsequent purported apology was a major contributing factor in him remaining off work.
He then goes on to address the nub of the appellants’ complaints here:
While the other factors would undoubtedly have impacted upon Mr Barney, there is insufficient evidence for the Tribunal to find that he would have ceased work when he did in the absence of the matters the Tribunal has found to be discriminatory, or that he would have been in a position to return to work any earlier, having not also been affected by the other issues which the Tribunal finds were not discriminatory… (emphasis added).
It is the reference to ‘insufficient evidence’ in this passage, and its suggestion that some evidentiary burden lay upon the appellants which they failed to discharge, which has excited them.
It is true that, in earlier passages in his Reasons[16] the learned Member had spoken in terms that might be construed as suggesting that, in his view, some evidentiary burden lay upon them to adduce evidence that would:
… differentiate between Mr Barney’s incapacity so far as it related to the actions of Ms Petersen which the Tribunal accepts were discrimination, and the other actions complained of by Mr Barney.[17]
[16] Barney v State of Queensland & Anor [2012] QCAT 695 at [137] – [140].
[17] Ibid [137].
Those passages must be considered, however, in light of that part of the Reasons which precedes them, in which the learned Member referred to the appellants’ submission that:
… if the comments made by Ms Petersen were found to constitute unlawful discrimination that their contribution to the economic loss suffered by Mr Barney would be minimal, and at best in the order of perhaps 5%. They say in relation to Mr Barney’s economic loss that the evidence presented to the Tribunal does not support the conclusion that that a 20 month absence from the workplace could be attributed to remarks by Ms Petersen outside Mr Barney’s presence.
It must be conceded that, at some points in these passages in the Reasons, the learned Member may have expressed himself infelicitously in the sense that, taken out of context, what he said might be construed as suggesting the error for which the appellants contend.
Once it is appreciated, however, that his remarks were made in the context of addressing the very heavy discounting of Mr Barney’s compensation for which the appellants contended both before the Member, and here; and that he had elsewhere correctly addressed, in appropriate terms, the question that was critical to causation – whether Mr Barney had discharged the onus of establishing a causal connection between his depressive condition and his absence from work, and the offending conduct – it can be seen that he avoided the error which lies at the heart of the appellants’ complaint.
The learned Member’s conclusion that ‘…the cause of Mr Barney ceasing work was the effect of becoming aware of the incident… regarding Ms Petersen and that her subsequent purported apology was a major contributing factor in him remaining off work’ was reasonably open on the evidence before him. Once that conclusion was reached, there was no apparent basis for reducing or discounting Mr Barney’s claim for economic loss.
The causal connection between Mr Barney’s major depressive illness and the offending acts was specifically addressed at pages 23 and 24 of the Reasons and the same temporal connection (between the offending acts, and the manifestation and diagnosis of Mr Barney’s major depressive condition) was found. Again, it cannot be said that the finding is against the weight of the evidence or not reasonably open.
The learned Member was then left, as he observed at page 24, to assess compensation for ‘general’ damage in the face of the evidence he had which, as he again acknowledged[18], was not a straightforward task. He was obliged to do so using the common sense approach sanctioned by the High Court in March v E & MH Stramare Pty Ltd[19].
[18] Ibid [144]
[19] (1991) 171 CLR 506.
In addressing that exercise the learned Member found that:
Mr Barney’s depression and anxiety was significantly caused by learning of Ms Petersen’s discrimination against him, and then contributed to by Ms Petersen’s “apology”.[20] (emphasis added)
[20] Barney v State of Queensland & Anor [2012] QCAT 695 at [145].
Again, that finding was fairly open in light of the medical evidence, and the close connection between Mr Barney learning of some of the incidents of discrimination and going off work, and the diagnosis just a few days after. In light of it, his decision to reduce Mr Barney’s general damages for contingencies by something in the order of 30% is unexceptionable.
The appeal was on a question of law only, and leave was not required under s 142 of the QCAT Act. For the reasons set out above, the appeal must be dismissed.
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