STU v JKL (Qld) Pty Ltd
[2017] QCAT 505
•6 December 2016
CITATION: | STU v JKL (Qld) Pty Ltd and Ors [2017] QCAT 505 |
PARTIES: | STU |
| v | |
| JKL (Qld) Pty Ltd (First Respondent) GHI JKL Limited | |
APPLICATION NUMBER: | ADL005-12 |
MATTER TYPE: | Anti-discrimination matters |
HEARING DATE: | 18,19 and 20 May 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member Ann Fitzpatrick |
DELIVERED ON: | 6 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Subject to the following three orders, the Second Respondent and the Third Respondent pay to the Applicant the sum of $313,316.10 within 28 days. 2. The Applicant file and serve any further calculation of past economic loss relevant to the period 18 May, 2016 to 29 November, 2016, by 12 December, 2016. 3. The Third Respondent file and serve any reply to a further calculation of past economic loss, by 19 December 2016. 4. If a recalculation of past economic loss and other consequent losses together with interest is made, the Tribunal will issue a substituted order for compensation and interest and nominate the time within which it is to be paid. 5. The Applicant file and serve any submissions in relation to costs by 19 December 2016. 6. The Third Respondent file and serve any submissions in relation to costs by 8 January, 2017. 7. The Applicant file and serve any submissions in reply by 22 January 2017. 8. In addition to the Order made on 27 February, 2016, by Senior Member Endicott, publication of the following documents produced to the Tribunal is prohibited under section 66 of the Queensland Civil and Administrative Tribunal Act 2009: (a) Exhibit 5, bundle of medical records of various dates; (b) Exhibit 10, GP Mental Health Plan, dated 30 July, 2009; (c) Exhibit 38, Affidavit of Dr Beech, affirmed 10 May, 2016 (d) Exhibit 39, Affidavit of Dr Beech, affirmed 14 March, 2016 (e) Exhibit 43, affidavit of Dr Quentin Mungomery, dated 12 April, 2016; (f) Exhibit 43a, report of Dr Quentin Mungomery, dated 14 October, 2015; (g) Exhibit 43b, report of Dr Quentin Mungomery, dated 12 April, 2016; (h) Exhibit 44, transcript of proceeding 18- 20 February, 2013; (i) Exhibit 45, Bli Bli Clinic Medical Records; (j) Exhibit 46, Nambour day surgery records; (k) Exhibit 47, Nambour General Hospital medical records; (l) Exhibit 48, Mindful therapy medical records; (m) Exhibit 49, Caloundra Hospital medical records; (n) Exhibit 50, Maroochydore 7 day medical centre medical records; (o) Exhibit 54, bundle of exhibits referred to in the evidence of Dr Beech; (p) Exhibit 55, report by Dr Quentin Mungomery, dated 17 August, 2011; (q) Exhibit 56, report by Dr Quentin Mungomery, dated 3 April, 2012. 9. Publication of details of any settlement agreement between the Applicant and WorkCover disclosed to the Tribunal is prohibited under section 66 of the Queensland Civil and Administrative Tribunal Act 2009. |
CATCHWORDS: | Anti-Discrimination - Sexual harassment -Vicarious liability - compensation for psychiatric injury and economic loss Anti-Discrimination Act 1991 (Qld) ss 119, s 133, s 209(1)(b) and (g) Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 at 466 |
APPEARANCES: | |
APPLICANT: | STU |
RESPONDENTS: | JKL (Qld) Pty Ltd and JKL Limited. |
REPRESENTATIVES: | |
APPLICANT: | represented by Mr D O’Gorman SC with Mr RE Reed of Counsel, instructed by Maurice Blackburn Lawyers. |
FIRST and SECOND RESPONDENTS: | represented Mr R Perry QC with Mr J Merrell of Counsel, instructed by Aitkin Legal. |
REASONS FOR DECISION
On 24 December, 2015 an Appeal Tribunal ordered that the original decision in this matter, made 29 August, 2015 be set aside and that the proceeding be remitted to the Tribunal, constituted by a different Member for re-hearing. The re-hearing took place on 18, 19 and 20 May, 2016.
In accordance with the Order of Senior Member Endicott, made 27 February, 2013, this decision has been de-identified. That has necessitated the substitution of parties’ names throughout this decision. Where it has been necessary to substitute a party’s name in a quotation of direct speech, the name is underlined.
Evidence at the re-hearing
The material admitted into evidence at the re-hearing is set out in the Order made 22 February, 2016. The Order includes evidence and the transcript from the initial hearing. The parties have filed further material on which they rely, which are exhibits in the proceeding. Additionally, oral evidence was given at the re-hearing by the Applicant, her mother, Dr Beech and Dr Mungomery.
The parties agreed at the commencement of the re-hearing that paragraphs 17, 18 and 19 of the Applicant’s affidavit, Exhibit 7 are removed from evidence. Paragraphs 16, 20, 21, 22, 23, 24 and 25 are re-instated as evidence.
Senior Counsel for the Third Respondent put a position agreed with Senior Counsel for the Applicant, in relation to matters referred to in reports of Dr Mungomery and Dr Beech, as follows:
a) Exhibit 11, report of Dr Quentin Mungomery, paragraph 14 – it is accepted by the Applicant that she said words to Dr Mungomery to the effect of what is recorded in paragraph 14;
b) Exhibit 43a, report of Dr Quentin Mungomery, dated 14 October, 2014, paragraph 8 - it is accepted by the Applicant that she said words to Dr Mungomery to the effect of what is recorded in paragraph 8 and that those words were said in August, 2011;
c) Exhibit 39, report of Dr Beech, dated 14 March, 2016, page 4, line 180 - it is accepted by the Applicant that she said words to the effect of what is recorded in the paragraph from line 180, save for the last sentence commencing “There had not been…”
The Second Respondent was served with the application. He has filed no material, did not appear at the re-hearing and has taken no part in any of the proceedings. He was informed of the hearing dates.
Applicant’s case
Upon the re-hearing, the Applicant seeks findings that:
a) The Second Respondent’s behaviour towards her on 1 December, 2010 constituted unlawful sexual harassment pursuant to chapter 4 of the Anti-Discrimination Act 1991 (the Act);
b) She suffered a psychiatric injury in the form of Post-Traumatic Stress Disorder and a Depressive illness which was contributed to in a material degree by the sexual harassment of her by the Second Respondent. Further, that the psychiatric injury rendered her totally unfit for work until mid-2015 and had other significant effects on her.
c) The Third Respondent, is vicariously liable for a contravention of the Act by the Second Respondent, pursuant to s133 of the Act;
d) The Second Respondent and the Third Respondent are jointly and severally liable for the Second Respondent’s contravention of the Act on 1 December, 2010;
e) The Second Respondent and the Third Respondent must pay her compensation and costs.
The Applicant no longer pursues a claim against the First Respondent.
Third Respondent’s case
The Third Respondent records in its submissions that it accepts the Second Respondent’s conduct in sexually assaulting the Applicant on 1 December, 2010, amounted to sexual harassment of the Applicant within the meaning of section 119 of the Act.[1]
[1]Written submissions on behalf of the Third Respondent, filed 13 June, 2016 at paragraph 13.
The Third Respondent submits that:
a) it is not vicariously liable for the Second Respondent’s conduct on 1 December, 2010, within the meaning of section 133(1) of the Act;
b) if it is vicariously liable for the conduct of the Second Respondent (which is denied), then any compensation payable to the Applicant must be reduced on the basis that the Applicant’s evidence lacks veracity, the loss claimed is exaggerated and she has failed to mitigate her loss;
c) only 50% of the Applicant’s psychiatric injury and any impaired working capacity had a causal connection to the sexual assault by the Second Respondent. It says that other pre-existing psychiatric conditions and events and subsequent circumstances contributed to her injury and inability to work.
Finding in relation to sexual harassment
The sexual harassment of the Applicant by the Second Respondent on 1 December 2010 is set out in her affidavit sworn 4 February 2013 (Exhibit 7). In summary, the Applicant says that she retired to sleep in her bedroom in Unit 402 of The Hotel apartments, on the first night of her accommodation in that Unit, which she was to share with the Second Respondent. The Second Respondent occupied a separate bedroom. At 5 am on the morning of 1 December, 2010 she awoke to find the Second Respondent in her bedroom. He was naked. He touched her body including her upper thigh and groin and attempted to remove her underpants. The Applicant asked him to stop and to leave the room. She broke down crying. The Second Respondent left the room, saying words to the effect: “I’ll let you get changed”. He returned saying: “this can be our little secret”.
I accept the account of the event given by the Applicant and find that the event occurred as she described in Exhibit 7. The Second Respondent has given no evidence in the proceedings of his version of events. The Third Respondent has acknowledged his conduct amounts to sexual harassment under the Act.
I find that the events as described by the Applicant meet the definition of sexual harassment in s119 of the Act. I find that the Second Respondent subjected the Applicant to unsolicited acts of physical intimacy and engaged in unwelcome conduct of a sexual nature with her. I find that a reasonable person would have anticipated the possibility that the Applicant would be offended, humiliated or intimidated by the conduct.
Is the Third Respondent vicariously liable for the actions of the Second Respondent?
Background facts
I find on the basis of the undisputed evidence and the parties submissions that as at 1 December, 2010:
a) the business of the Third Respondent was the management and operation of hotels and resorts, including The Accommodation, The Complex and The Hotel.
b) The Third Respondent managed the caretaking services for The Hotel.
c) The First Respondent was a wholly owned subsidiary of the Third Respondent and one of the JKL group of companies.
d) Mr CD was the sole Director of the First Respondent. He was a Director of the Third Respondent and the Chief Executive Officer of the Third Respondent. He was the Chief Executive Officer of the JKL group of companies.
e) At the request of Mr CD, the Applicant was employed on 9 August, 2010 by the First Respondent as a guest service agent at The Accommodation.
f) The First Respondent supplied labour to the Third Respondent at certain properties managed by the Third Respondent.
g) The Applicant remained employed by the First Respondent until termination of her employment on 1 February, 2011.
h) By early November, 2010, there was no on-going employment for the Applicant at The Accommodation. At the request of Mr CD a suitable position was sought for the Applicant. A position was found at The Complex, Brisbane as a guest service agent. The Applicant agreed to commence in that position on 1 December, 2010.
i) The Second Respondent, the night caretaker of The Hotel, occupied Unit 402. It is a two bedroom Unit. The second bedroom was unoccupied.
j) Mr CD, suggested to the Applicant that she reside free of charge in Unit 402 of The Hotel to assist her in moving to Brisbane to take up the job at The Complex. Mr CD spoke to the then occupant of the Unit, the Second Respondent and to a Human Resources officer of the Third Respondent to put in train a meeting between the Second Respondent and the Applicant, for the purpose of ensuring they were comfortable to share the Unit together. There is a dispute between the parties as to the significance that can be attached to Mr CD’s efforts. This is discussed later in the decision.
k) The Second Respondent and the Applicant spoke over the telephone. They met on 30 November, 2010. After that, the Applicant moved into Unit 402 on 31 December, 2010.
l) The Applicant entered into no written tenancy agreement.
m) The Second Respondent was engaged as a contractor to the Third Respondent pursuant to a verbal agreement made with Mr CD, for the provision of certain services as a caretaker. There is a dispute between the parties as to when the Second Respondent’s services were being provided. That is dealt with later in the decision. However, broadly, the services included attending to any issue which arose in the building between 10.00 pm and 6.00 am each day, including:
·attending reception before 10 pm to be advised of any late check ins to whom he must attend once reception staff left at 10pm;
·answering his work provided phone between 10pm and 6am. The caretaker’s contact details were available at The Hotel in the event of an urgent request or an emergency. He was required to assist the person who had called;
·to look into any alarm and if necessary implement emergency procedures;
·to report to reception staff at 6 am in relation to contacts during the previous evening and early morning.
n) In consideration for these services, the Second Respondent lived in Unit 402 rent-free. The Third Respondent paid his electricity and phone costs. There was no written tenancy agreement.
o) The Third Respondent had control of Unit 402 as part of its management and caretaking role with respect to The Hotel.
Anti-Discrimination Act 1991 – Vicarious liability
Section 133(1) of the Act provides that if any of a person’s workers or agents contravenes the Act “in the course of work or while acting as an agent” the person is jointly and severally liable with the worker or agent for the contravention.
Section 133(2) provides that it is a defence if the respondent proves on the balance of probability that the respondent took reasonable steps to prevent the worker or agent contravening the Act.
“Work” is defined in the Act to include work under a contract for services.
Issues in dispute – vicarious liability issue
The Applicant relies on the facts set out earlier in this decision.
The Applicant submits that:
a) the sexual assault occurred during the Second Respondent’s on-call period, in the course of his work for the Third Respondent;
b) the authorities demonstrate that in applying a liberal construction to vicarious liability provisions in anti-discrimination statutes, a sufficient nexus may be established between the sexual harassment and the work of the perpetrator even in circumstances where the perpetrator is not directly engaged on the activities of the work at the time of the contravening conduct;
c) the sexual assault was inflicted by the Second Respondent in his place of work;
d) she was an employee of the First Respondent, a subsidiary of the Third Respondent, and was staying in the Unit provided to the Second Respondent at The Hotel, in connection with her employment. The Third Respondent through Mr CD arranged the accommodation to facilitate her taking up employment at The Complex in Brisbane;
e) but for her employment, she would not have been in Unit 402 at the time the sexual assault took place.
f) The Third Respondent is vicariously liable for the Second Respondent’s contraventions of the Act as the Second Respondent was a worker engaged by the Third Respondent and the contravention occurred in the course of his work with the Third Respondent.
The Third Respondent has submitted that there are four matters in dispute as to the vicarious liability issue. Those matters are:
a) whether the Applicant’s accommodation in the spare bedroom in Unit 402 was a condition of her employment with the First Respondent and whether the Applicant was required as part of her employment to reside at Unit 402;
b) whether the Applicant, as part of her employment with the First Respondent was to be trained to perform caretaking duties at The Hotel;
c) the nature of the services provided by the Second Respondent to it, and when, how and why those services were performed by the Second Respondent; and
d) whether the Second Respondent’s conduct at approximately 5.00am on Wednesday, 1 December, 2010 occurred in the course of his work as caretaker for the Third Respondent.
The Applicant has not submitted in the re-hearing that she was required to reside at Unit 402 as part of her employment. She says that “but for” her employment by the First Respondent she would not have been at the Unit. The Applicant does not submit at the re-hearing that she was to be trained as a caretaker.
The Third Respondent notes that these two issues are not pursued in the re-hearing.
Despite this, the Third Respondent requires an examination of all of the evidence to determine how and why the Applicant came to be in the spare bedroom in Unit 402, when the Second Respondent assaulted her. It seeks to demonstrate that it was not and never could have been truthfully asserted, that it was a requirement of the First Respondent that the Applicant reside in Unit 402. It submits that the evidence of the witnesses for the Third Respondent must be believed in preference to the evidence of the Applicant.
In support of this submission, the Third Respondent asserts that the Applicant’s case in the re-hearing is narrower than run in the first hearing. It submits that the narrowing of the case necessarily arose as a consequence of the evidence given by the Applicant at the first hearing, which lacks credit.
Requirement to reside at Unit 402
I disagree with the Third Respondent that there has been a narrowing of the case as first put. I do not agree that the Applicant’s case as first put, involved an assertion that accommodation at The Hotel was provided to her by the First Respondent as part of her employment at The Complex or that she was compelled by the First Respondent to reside at the apartment. I have referred to the submissions of the Applicant made at the first hearing and note that they are in the same terms as the submissions made in the re-hearing, set out above.[2]
[2]Applicant’s submissions dated 7 June, 2013 at paragraph 78.
The Third Respondent refers to paragraph 3 of the Applicant’s Contentions, as support for what it says was the Applicant’s broader case as first put. Paragraph 3 of the Further Amended Contentions sets out information given to the Applicant by Ms S, Human Resources officer in a telephone conversation about arrangements for her move to Brisbane to take up work at The Complex. Paragraph 3 nowhere asserts that Ms S said the apartment was provided as “part of her employment” or that she was “compelled to reside at the apartment”. Those words are an interpretation of the contentions, made by the Third Respondent. Ms S did not give evidence inconsistent with the conversation relayed in the Contentions. The words used by the Third Respondent do not appear in the submissions of the Applicant at either the first hearing or the re-hearing.
The Third Respondent also refers to the Applicant’s statement of evidence (Exhibit 7) as support for what it says was the Applicant’s broader case as first put. The Applicant sets out the effect of a conversation she had with Mr CD and Mr A, Chief Operations Officer of the JKL group of companies, in early November, 2010. As the Applicant presents the conversation, she was being actively encouraged to take up the role at The Complex in Brisbane and to take advantage of the opportunity to live at The Hotel. She expressed the opinion that “It was presented to me as a requirement that I live with the Second Respondent”.
I am asked to find that the Applicant was not being truthful in giving that evidence.
I consider that evidence to be a statement of the Applicant’s understanding of the conversation. I have no reason to doubt that it was her genuinely held opinion.
Mr CD’s evidence is relevant as to how she could have come to the view expressed in her affidavit. Mr CD agreed in cross-examination at the first hearing that he was encouraging the Applicant to take up the position at the Complex.[3] Mr CD gave evidence in cross-examination that because the company had spent a considerable amount of time getting her to a position, she did have to start working for the company.[4] He affirmed that she was to be transferred to Brisbane and that there was no other alternative.[5] When the Applicant raised concerns about accommodation in Brisbane he considered options to get her established in Brisbane, including arranging for her to live with the Second Respondent at The Hotel. His evidence is: [6]
I then thought about the Second Respondent as maybe an option. It was an option that the Second Respondent and her would have to feel comfortable with. I facilitated the meeting of the two parties, I asked the Second Respondent for permission to be able to do that as that was his residences and I couldn’t make that call as that was his home. I talked to the Applicant about that so I would have to ask the Second Respondent first but if it was an option would this be an option for you. We worked our way through that and as a result of me talking with the Second Respondent, the Second Respondent came back and said I would look at this . I then facilitated a meeting of the two to ensure that both parties were comfortable with the arrangement so at the end of that they had to meet and they had to make sure that both parties were comfortable with that particular situation. I would have much preferred to find another solution but again we were just trying to help her through.
[3]Transcript day 2, page 62, lines 31-35.
[4]Transcript day 2, page 63, lines 24-27.
[5]Transcript day 2, page 63, lines 3-11.
[6]Transcript day 2, page 64, lines 20-33.
Mr CD agreed that he told the Applicant that he had known the Second Respondent for some years and that the Second Respondent was a trustworthy individual.[7]
[7]Transcript day 2, page 65, lines 6-9.
I do not think it is unreasonable in the circumstances that the Applicant would hold the view she formed, given the conversation she had with Mr CD. My assessment of the Applicant is that she was plainly very young at the time of these events. She was 21 years of age. Her evidence suggests someone who was easily confused. She often did not seize the meaning of questions put to her and they had to be repeated. My assessment based on her demeanour in the witness box and her evidence is that of someone who is immature and trusting. Even in his version of the conversation. Mr CD referred to the Applicant as a “kid”.
I do not think it is unreasonable for such a person to feel that when her employer is transferring her to Brisbane and taking active steps to arrange her accommodation that she is required to live in that accommodation.
I reject the submission of the Third Respondent that because she met with the Second Respondent and agreed to move into the spare bedroom that she was exercising a choice as to whether she would stay in the apartment and that it could not therefore have been a requirement that she stay in the apartment. The Applicant’s evidence goes no further than an understanding of her conversation with Mr CD. Again, the Applicant does not put it as her case that she was required to live in the apartment.
I am not prepared to find that the Applicant lacks credit because of her evidence that it was presented to her as a “requirement that I live with the Second Respondent”. I do not find that it was in fact a requirement. I merely find that it is understandable why the Applicant might think that was the case.
I do not think the Applicant has presented her case either at the first hearing or on the re-hearing in the terms submitted by the Third Respondent. She has not submitted that accommodation was provided to her “as part of her employment at The Complex” or that she was “compelled” to reside at the apartment. I do not accept the submission that the Applicant has narrowed her case because her evidence in the first hearing, on this point, lacked veracity.
The Third Respondent submits that inconsistencies in the Applicant’s evidence as to the date or order of discussions in relation to the arrangements for her transfer to Brisbane, between Mr CD, Mr A, Ms S, Ms C and the Applicant affect the Applicant’s credit. I reject that submission. I do not think the inconsistencies bear in any material way on the issue of the Applicant’s credit. The submission is made on the basis of what would have been the content of discussions, if conversations had occurred in the order suggested by the Applicant. The content of the hypothetical conversations relates to the matters the Third Respondent alone has attributed to the Applicant, as the basis on which her case is put.[8] Any inconsistencies in relation to timing of conversations do not impact on the real issues to be decided in this case.
Findings
[8]Written submissions of the Third Respondent, filed 13 June, 2016 at para 239 and 240.
Credit
For these reasons, I am not prepared to make an adverse finding against the Applicant in relation to credit with respect to the issue of whether the Applicant was required to reside in Unit 402 as part of her employment with the First Respondent.
Is it the case that:
· but for her employment, the Applicant would not have been in Unit 402; and
· the sexual assault took place in accommodation provided and arranged by the Third Respondent?
I accept the Applicant’s submission and find that but for her employment the Applicant would not have been in Unit 402 at the time the sexual assault took place. Another way of expressing this is as put in the Applicant’s submissions that her accommodation in the spare bedroom of Unit 402, was connected with her employment by the First Respondent. This finding is based on the following matters:
a) it is compelling that the Unit was under the control of the Third Respondent. The Chief Executive Officer of the Third Respondent made occupation of the Unit available to the Applicant to assist her move to Brisbane, to take up work at The Complex. He set the terms of that occupation, namely that it was rent free and subject to the Applicant and the Second Respondent feeling comfortable in sharing the Unit.
b) It is not the case that the Applicant was a stranger to the Third Respondent invited by the Second Respondent to share the Unit for reasons completely unconnected with his work for the Third Respondent or her work for the First Respondent.
c) I reject the submission of the Third Respondent that the Applicant was merely a “guest” of the Second Respondent, who had the capacity to consent to her presence. There is no evidence from the Second Respondent that he actively extended a personal invitation to the Applicant to live in the Unit, as one would normally do with a guest.
d) I reject the submission of the Third Respondent that the Applicant was no more than an invitee of the Second Respondent in his private capacity. There is no evidence that the Second Respondent was acting in his private capacity. There is evidence which suggests he was not acting in his private capacity. First, he had no control over whether the Applicant paid him rent. He was told that she was to live in the Unit rent free. Second, the letter from the Second Respondent to Mr A, Exhibit RG1 to the affidavit of Ms Green, sworn 13 February, 2013 sets out the “Rules for the Applicant’s residence”. If the Second Respondent was entering into a private arrangement there would be no reason for him to send such a letter to Mr A.
I reject the submission of the Third Respondent that it is wrong to submit, as the Applicant does, that the sexual assault took place in accommodation provided and arranged by the Third Respondent. It is said that submission is not supported by the totality of the evidence. It is submitted that the Third Respondent – the company that had the contract for services with the Second Respondent – had no involvement at all in the Applicant residing in the apartment. It is hard to understand how that submission could be made. The Third Respondent controlled the Unit, pursuant to its management business.[9] Mr CD, the Chief Executive Officer of the Third Respondent, suggested the accommodation as a means of enabling the Applicant to commence work at the Complex. Mr CD determined to provide the accommodation rent free. He telephoned the Second Respondent to obtain his agreement to sharing with the Applicant. He encouraged the Applicant to take up the offer of accommodation, assuring her that the Second Respondent was trustworthy. Mr CD instructed the Human Resource officers of the Third Respondent to facilitate contact between the two to ensure they were comfortable sharing the Unit. It is in this context that the Applicant agreed to move into the Unit. Just because she made that agreement, does not mean her accommodation was not provided and arranged by the Third Respondent. Based on this evidence, I find that the sexual assault took place in accommodation provided and arranged by the Third Respondent.
[9]Transcript day 2, pages 50 and 51; Exhibit 20 – Management Agreement; Transcript day 2, page 67, lines 13-15; Exhibit 19, affidavit of Mr CD at para 56.
Training as a caretaker
The Third Respondent submits that at the initial hearing an allegation was raised that the Applicant was to be trained as a caretaker. The Third Respondent speculates as to why such an allegation may have been made - that is if she was being trained, then an argument might arise as to whether the assault occurred in the course of that training so as to be considered to be in the course of the Second Respondent’s work for the Third Respondent. I cannot see that such an argument formed part of the Applicant’s submissions at the first hearing, even though there was some evidence from the Applicant in relation to the point.
I am asked to consider the veracity of the Applicant’s evidence that she was to be trained in the caretaking role at The Hotel. It is suggested that this is a fiction made up by the Applicant to support her case that she was required to reside in the apartment by the First Respondent or was there for some reason connected with the Third Respondent.
The Applicant alleges that she arranged a meeting with Mr CD to discuss the proposed living arrangements and that this occurred after she had some conversations with the Second Respondent. The Applicant says that Mr CD told her the Second Respondent would teach her a lot more things about the company and she could learn how to do the night caretaker position. Mr CD denies meeting with the Applicant after she had spoken to the Second Respondent, in order to discuss the proposed living arrangement, and denies the words attributed to him.
The Third Respondent also relies on the evidence of Mr A, whose evidence is that he was present for part of a meeting with the Applicant in early November, 2010. He says that Mr CD did not make comments in his presence about the Applicant being trained as a caretaker. He said that in any event, the Applicant lacked maturity and experience to be a caretaker. Other evidence is given that the Applicant did not have the skills to be a caretaker.
It is submitted that because the Applicant’s evidence on this issue is inconsistent with the evidence of Mr CD and Mr A, she should not be accepted as a witness of credit. The fact that other witnesses did not think caretaking work was any part of the Applicant’s role or that she did not have the capacity for that work, does not help resolve the conflict in the evidence.
It does not advance the Applicant’s case in relation to vicarious liability as in fact put at the first hearing, or on the re-hearing, to claim that Mr CD said she was to be trained as a caretaker.
The Applicant remained steadfast in her version of events under cross-examination, as did Mr CD.
I am unable to say whether the Applicant or Mr CD is mistaken as to what was said in their conversation. I do not think there is sufficient justification to find that the Applicant fabricated the conversation. It is possible that the Applicant was confused and mistaken, given other evidence referring to training as a night caretaker, whilst she lived at Unit 402. The Applicant says in her evidence in chief that the Second Respondent rang her on 30 November, 2010 and said words to the effect: “you are not to stay for dinner. You must do exactly what I say. These are Mr CD’s instructions. You’ve got a lot to learn. If I break my arm, you will have to know what to do.”[10] In the absence of any evidence from the Second Respondent, I accept that the Second Respondent said those words to the Applicant.
[10]Affidavit of STU sworn 4 February, 2013 (Exhibit 7) at para 97.
The words are consistent with a letter the Second Respondent sent to Mr A, copied to Mr CD and a Mr R. On 30 November, Ms G, the hotel Manager at The Hotel scanned and emailed to Mr A, a hand written letter from the Second Respondent. The document appears as RJG1 to the affidavit of Ms Green (Exhibit 35). The document is headed “Situation at U402 The Hotel & The Complex (perhaps) Rules for the Applicant’s residence” and includes: “Suggestion the Applicant be trained to assist the Second Respondent every night not affected by the Complex situation. Reason will restrict time to go out contact boyfriend etc, be near parents etc would also obviate and explain reason for perceived (sic) preferential treatment from other staff at JKL. Further option 1 train for The Complex (same situation)”
It is not clear whether the “suggestion” referred to is a suggestion proffered by the Second Respondent or whether it is a suggestion which has been made to him. The Second Respondent was not called to explain the meaning of his document.
Mr A and Mr CD both deny seeing the document before the events of 1 December, 2010. Mr CD says he did not have any contact from the Second Respondent which would have initiated such a document, nor its contents.[11]
[11]Affidavit of Mr CD sworn 11 February, 2013 (Exhibit 19) at para 63.
Finding
I am not prepared to make an adverse finding in relation to credit against the Applicant, in relation to this issue or to find that she fabricated evidence. It is possible she was mistaken because of her discussions with the Second Respondent. It is not necessary to make any finding as to whether the Applicant was in fact to be trained as a caretaker, as that does form part of the Applicant’s case.
Other matters in dispute as to the vicarious liability issue
The Third Respondent submits that findings are required in relation to the nature of the services provided by the Second Respondent to it, and when, how and why those services were performed by the Second Respondent.
The final matter is whether the Second Respondent’s conduct at approximately 5.00am on Wednesday, 1 December, 2010 occurred in the course of his work as caretaker for the Third Respondent.
What were the Second Respondent’s duties and when were they performed?
There is no dispute between the parties that the Second Respondent’s duties are as set out in the Particulars filed by the First, Third and then Fourth Respondents, dated 18 December, 2012 (Exhibit 2). I find that the Second Respondent’s duties were as particularised by the Third Respondent.
The Second Respondent’s duties are described in that document as:
·providing an after-hours on-call service for late guest arrivals and emergencies;
·to be available for after-hours call outs to respond to any emergencies;
·the ability to liaise with the building manager to find a suitable replacement to be on-call;
·to facilitate late arrivals for check-in;
·to respond to emergencies in the building during the evening for example fire-alarms, lift breakdown, mechanical failure, security complaints;
·to provide guest assistance if answering service unable to deal with problem;
·to complete the after-hours call out log book for all call outs;
·to present in a professional manner at all times;
·to have a limited understanding of front office policies and procedures;
·to maintain guest privacy and confidentiality at all times;
·to undertake effective, honest and professional communication with JKL staff members to ensure the smooth operation of the property;
·to ensure all pertinent information is handed over to incoming JKL employees;
·to remain vigilant for situations that could cause a safety risk and remove or advise the building manager; and
·to ensure all accidents on the property were reported to the hotel manager on an incident report.
Mr CD and Mr A both gave evidence at the first hearing in relation to the Second Respondent’s duties. They were cross-examined in the first hearing, but not in the re-hearing. Mr CD’s evidence in cross-examination in the first hearing was that the Second Respondent was “on call between the hours of ten and six”.[12] Mr A cavilled at the term “on call”, but agreed in cross-examination that the Second Respondent was required to be available to respond if necessary to a range of issues which might occur.[13]In re-examination, he explained that: “there is no on call unless the phone rings”.
[12]Transcript day 2, page 56, line 19.
[13] Transcript day 2, page 89, line 20.
The Third Respondent submits that the evidence does not prove that the Second Respondent was required to be awake and available between 10.00pm and 6.00am. I find on the basis of the evidence of Mr CD and Mr A that although the Second Respondent may not have been required to be awake during those hours, he was required to be “available” to attend to his duties. I assume that if he slept, he would be awoken by his phone or an alarm or a knock on the door.
The Third Respondent submits that the evidence does not prove that the Second Respondent worked a “shift” between 10.00 pm and 6.00 am, in that he was not required to provide any services at all if the phone did not ring or if no issue arose. The Third Respondent submits that the Second Respondent was only performing services for it, if and when he was required to do so.
The Third Respondent says that is consistent with the features of his engagement. The Second Respondent was not paid a specific amount of money if he was required to provide services between 10.00pm and 6.00 am, nor was he paid an amount to physically be present (in case he was needed) in The Hotel between those hours.
That submission ignores the provision of accommodation in Unit 402 free of charge, payment of electricity charges and provision of a mobile phone and payment of its costs. The evidence is that those benefits were provided in return for the Second Respondent providing caretaking duties.[14] Those benefits were constant whether the Second Respondent was called on to take an active step or not.
[14]Transcript day 2, page 57, lines 6-11.
I reject the submission that the Second Respondent was not required to provide any services at all if the phone did not ring or if no issue arose. The evidence from Mr CD and Mr A was clear that the Second Respondent was to be “available” between 10 pm and 6 am. I find that being “available”, that is ready and able to respond when called upon, is a service. I find that the Second Respondent was providing that service between the hours of 10.00 pm and 6.00 am and that he was required to do so as a necessary part of his engagement. Inconsistent with the submission of the Third Respondent is the evidence that the Second Respondent was not free, when not being actively called upon, to do as he liked to or to locate himself wherever he liked. For example, the Second Respondent was required to remain sober between the hours of 10.00 pm and 6.00 am.[15] He had to be located close enough to The Hotel during those hours to be able to respond in a suitable period of time to any call on him.[16] He had to remain “vigilant for situations that might cause a safety risk”.[17]
[15]Affidavit of Mr A, sworn 19 February, 2013 at paragraph 9 (Exhibit 23).
[16]Transcript day 2, page 57, line 28.
[17]Exhibit 2.
The Third Respondent submits that the evidence does not prove Unit 402 was the Second Respondent’s place of work. The evidence is said to be that Unit 402 was the Second Respondent’s private residence. I accept that Unit 402 was the Second Respondent’s private residence. However, that does not limit the Unit having another character. The Unit is located within The Hotel building. The Second Respondent was responsible during the hours of 10.00 pm to 6.00 am for that building. Whilst he was making himself available to deal with any issue, which might arise, he would no doubt locate himself in Unit 402 for comfort and convenience. As a matter of common sense, that is why he was provided with on-site accommodation. Mr CD gave evidence that the Second Respondent had no other place in the building to use as an “office” or place of work. Mr CD did not see why the Second Respondent would need an office.[18] Mr CD also said that once the Second Respondent stepped outside his front door to respond, the common area became his place of work.[19] That last evidence is self-serving and inconsistent with Mr CD’s evidence that the Second Respondent was contracted to be “available” to respond during the hours from 10.00 pm to 6.00 am, which must necessarily mean he is “available” whilst in Unit 402, not just after he takes a call and steps into the corridor. I find that Unit 402 was a place of work for the Second Respondent as well as being his residence.
[18]Transcript day 2, page 74, line 28.
[19]Transcript day 2, page 74, line 23.
The Third Respondent submits that the evidence does not prove the Second Respondent was required to remain at The Hotel between 10.00 pm and 6.00 am. It says the evidence is he needed to be available, although he did not need to be physically present and awake at The Hotel, between 10.00 pm and 6.00 am, to provide caretaking services if and when they arose. I accept that submission to a limited extent. I have referred to the evidence that the Second Respondent needed to be proximate enough to The Hotel to attend to his duties. That said he did not need to be physically present and awake between 10.00pm and 6.00am, provided he could respond effectively when needed. I reject the suggestion that caretaking services might only arise between 10.00pm and 6.00am, if the Second Respondent was actively called upon. I have found that he was providing caretaking services by being available, or at the ready during the hours of 10.00 pm to 6.00 am.
Finding
In the end, the relevant finding is that the Second Respondent was engaged to be available to attend to issues that might arise at The Hotel between the hours of 10.00 pm and 6.00 am. The duties are as set out in the Particulars (Exhibit 2). I find that he was working during the hours of 10.00 pm and 6.00am, pursuant to his engagement, whilst waiting for any call, alarm, incident or issue to arise during those hours. I reject the submission that the Second Respondent was only working once he responded to any call, alarm, incident or issue.
Did the sexual assault occur in the course of the Second Respondent’s work for the Third Respondent?
The Third Respondent submits that it is necessary to construe s133(1) of the Act, in particular the meaning of the words “in the course of work”.
The Third Respondent refers me to an interpretation of the phrase in Commonwealth of Australia v Lyon[20] with respect to workers’ compensation statutes. In that case the phrase “ in the course of work” was found to:
a) contemplate the circumstances where a worker is engaged in the work he or she is employed to do;
b) to contemplate the circumstances where a worker is engaged in something which is concomitant with or reasonably incidental to the worker’s employment, and
c) such that the scope of what is within the “course of employment” is a matter of degree, in which time, place and circumstances as well as practice must be considered together with the conditions of employment.
[20](1979) 24 ALR 300 at 303 to 304 per Deane J.
I think that statement is a helpful way to apply the facts. I also consider it is sufficiently broad to enable a wide and liberal interpretation of the phrase “in the course of work”, as urged by the Applicant in her submissions. The Applicant relies upon the statements of Kiefel J, as she then was, in South Pacific Resort Hotels Pty Ltd v Trainor[21] and the case which followed her analysis.[22]I agree that a wide interpretation is desirable, given the remedial nature of the Act.
[21](2005) 144 FCR 402, at 414-415 [65]-[67],[69]
[22]Lee v Smith [2007] FMCA 59 at [201]-[207].
I have found that being “available”, or ready to respond to an issue between the hours of 10.00 pm and 6.00 am, was an integral part of the Second Respondent’s work pursuant to his contract for service. On this basis I find that the Second Respondent was engaged in the work he was required to perform at the time of the sexual assault and that he was therefore engaged in the “course of work” at the time the contravention of the Act occurred. To the extent that it might be necessary to go further, the facts of this case also fall within what is contemplated by the wider meaning of the phrase expressed in the second and third limbs of the interpretation given in Lyon’s case.
I accept the submission of the Applicant that when the Second Respondent was “on-call”, or holding himself “available” between the hours of 10 pm and 6 am, he was a worker performing work. That is, he was engaged in the duties required under his contract for services. I adopt the comment of Dixon J in Automatic Fire Sprinklers v Watson:[23] “They also serve who only stand and wait”. I reject the submissions of the Third Respondent that reliance cannot be placed on this case. I place reliance on His Honour’s comment, as a neat way of expressing the fact that passive work is as much work as active work, particularly if that is expressly required of the worker. I consider that to be the case whether the requirement is made pursuant to a contract of service or a contract for service.
[23](1946) 72 CLR 435 at 466.
I reject the submission that the Second Respondent was not working unless he was actively called upon. The Third Respondent engaged the Second Respondent to be available to respond to issues which might arise in the building between set hours, it directed that he be sober and vigilant during those hours and provided him with on-site accommodation to enable him to do that work.
In the terms of the legislation, it matters not if the sexual assault occurred in his private residence or anywhere else in The Hotel. The critical issue is that it occurred in the course of his work for the Third Respondent.
It is not necessary to find that the sexual assault took place in the Second Respondent’s place of work, but it adds force to a finding that the sexual assault occurred in the course of the Second Respondent’s work. Unit 402 was on-site accommodation, which enabled him to respond within an appropriate time to any issue that arose in the building. That is a matter which I can logically infer from the evidence of Mr CD and Mr A about the work to be performed by a night caretaker such as the Second Respondent. I do not consider that any further evidence is required to draw that inference. I find that Unit 402 was the place where the Second Respondent was based, whilst being available to respond. For that reason, it was the Second Respondent’s place of work. That is consistent with the evidence of Mr CD.[24]
[24]Transcript day 3, page 52, line 19-20.
In terms of the legislation, it does not matter how the Applicant came to be in Unit 402. Section 118 of the Act sets out an outright prohibition: “A person must not sexually harass another person”. The prohibition is not limited in relation to place or circumstance. Once the Act has been contravened the vicarious liability provision set out in s133 of the Act will be engaged if the contravention occurred in the course of work of a person’s worker. It is irrelevant to submit, as the Third Respondent has done, that the Applicant was the Second Respondent’s guest and that she was not in any way connected with the Third Respondent or the Second Respondent’s work for it.
Finding as to vicarious liability
I find that the Second Respondent’s contravening conduct occurred in the course of his work within the meaning of s133(1) of the Act. On that basis, I find that the Third Respondent is vicariously liable for the Second Respondent’s contravention of the Act.
Defence
The Third Respondent has submitted that there was nothing it could have done to avoid the event occurring on 1 December, 2010. That is not a defence. S133 (2) of the Act sets out a defence, however it is not engaged. The Third Respondent led no evidence of any reasonable steps it took to prevent the Second Respondent contravening the Act. I do not accept there were no reasonable steps it could have taken. At the very least one would expect a publicly listed company, such as the Third Respondent, to have an Anti-Discrimination Policy and an education program for its workers. It is beside the point that the Third Respondent did not know what the Second Respondent might do or that it could not control what he might do in “his own home”. Unit 402 was also a place of work. If the Third Respondent had taken steps to inform its workers of their legal obligations and to provide the education and training necessary to ensure compliance, then it may have avoided responsibility for the unlawful acts of its worker.
Medical conditions and affect on ability to work
The Applicant’s submissions
The Applicant submits that in December 2010, she sustained a psychiatric injury in the form of Post-Traumatic Stress Disorder (PTSD) and a Depressive illness. She relies on the diagnosis of Dr Beech, Psychiatrist set out in his reports dated, 25 October 2015[25] and 7 May 2016[26]; and his evidence given in the re-hearing. At the re-hearing the Applicant did not call Dr Mungomery, Psychiatrist as her witness. However, in her submissions, she points to large elements of Dr Mungomery’s reports and evidence, which support her claim. The evidence which the Applicant points to are parts of the reports given by Dr Mungomery to WorkCover, dated 17 August, 2011[27] and 3 April, 2012;[28] his report to Maurice Blackburn, dated 4 December, 2012,[29] his evidence to the Tribunal on 18 February, 2013[30], his report to WorkCover dated 14 October, 2014[31] and his oral evidence on the re-hearing.[32]
[25]Annexure MB-1 to Exhibit 39 (affidavit of Dr Michael Beech affirmed 14 March, 2016) at page 22, LL 1145-1162.
[26]Annexure MB-2 to Exhibit 40 (affidavit of Dr Michael Beech affirmed 10 May, 2016) at page 5, LL 225-252.
[27]Exhibit 55.
[28]Exhibit 56.
[29]Annexure QJVM-1 to Exhibit 11 (affidavit of Dr Q Mungomery affirmed 6 February, 2013).
[30]Transcript day 1, page 111, lines 14-29 and Transcript day1, page 114. lines10-22.
[31]Exhibit 43A.
[32]Transcript day 6, page 3-23, lines 39-40; Exhibit 55 at paragraphs 83-84 and [5] and [6] on page 11; Transcript day 6, page 3-25, lines 3-7; Transcript day 6, page 3-36, lines 36-41.
The Applicant makes the following submissions.
Both Psychiatrists make the same diagnosis of Post-Traumatic Stress Disorder and a Depressive illness.
The Applicant submits that her psychiatric injury was contributed to in at least a material degree by the sexual assault of her by the Second Respondent. The Psychiatrists are agreed that is the case, but there is a difference in opinion as to the degree of contribution and the effect of earlier stressors. In the re-hearing both Psychiatrists agreed that a person of normal fortitude could have suffered the same psychiatric conditions as a result of the sexual assault.
Dr Mungomery thought that pre-existing vulnerabilities, psychiatric conditions and additional stressors that occurred in the two years prior to the sexual assault would be significant in the development of her psychiatric conditions.[33]
[33]Exhibit 43A at paragraph 107; Exhibit 43B at page 31; Transcript day 6, page 3-56, lines 36-40.
Dr Beech addressed this issue in a further report, dated 7 May, 2016. He acknowledged that the Applicant had in earlier years suffered from psychological conditions and there had been other stressors, but he did not think the Applicant had at the time of the 2010 incident a pre-existing impairment. In particular, he noted that prior to the incident the Applicant had for 12 months or so not suffered from any psychological or emotional disturbance and she had returned to work.[34]
[34]Annexure MB-2 to Exhibit 40 (affidavit of Dr M Beech, affirmed 10 May, 2016).
The Applicant submits that the psychiatric injury sustained by her on 1 December, 2010 as a result of the sexual assault of her by the Second Respondent rendered her unfit for work until mid-2015. She points to the fact that she was performing satisfactorily in her position at The Accommodation[35]
[35]Exhibit 31 (affidavit of Anne-Marie Burgess sworn 11 February, 2013) at annexure AMB 1 (page 12); Exhibit 7 (affidavit of STU sworn 4 February, 2013) at annexure NCK3 (page 156); Exhibit 7 ( affidavit of STU sworn 4 February, 2013 at annexure NCK3 (page 156).
Dr Beech expressed the opinion that: “it was her conditions that arose from the 2010 incident that caused her impairment and inability to work…”[36]
[36]Annexure MB-2 to Exhibit 40 (affidavit of Dr Michael Beech affirmed 10 May 2016) at page 5, LL225-229 and 245-252.
Dr Beech expressed the opinion that the Applicant ceased being totally incapacitated for work around mid-2015 when she commenced employment in Darwin at Quest Serviced Apartments.[37]I note the date was in fact, March, 2015.
[37]Annexure MB-2 to Exhibit 40 (affidavit of Dr Michael Beech affirmed 10 May, 2016) at page 24, LL1286-1290.
Dr Mungomery expressed the opinion in his reports to WorkCover and to Maurice Blackburn that the Applicant was totally impaired in her capacity for work. In his report to Aitkin Legal, dated 31 March, 2016,[38]Dr Mungomery expressed the opinion that the Applicant was totally impaired in her capacity for work for a period between December 2010 to October 2014. He refined that view in his oral evidence to express the period as up until at least October 2014, because he acknowledged that she was having residual symptoms at that time.
[38]Exhibit 43B at [6] on page 12.
As to the Applicant’s prognosis, Dr Beech considered her overall prognosis to be positive, but thought that she remained at risk of a relapse of her depression and the re-development of another Major Depressive Episode. She was also vulnerable to a recrudescence of her Post-Traumatic Stress Disorder syndrome. Dr Beech thought the Applicant would benefit from 12 or more sessions of psychological therapy at a cost of $250.00 per session. He expressed the view that she continues to suffer residual symptoms of Post-Traumatic Stress Disorder. The Major Depressive Disorder has remitted. The alcohol abuse continues but he would see this as a pre-existing condition.[39]
[39]Annexure MB-1 to Exhibit 39 (affidavit of Dr Michael Beech affirmed 14 March, 2016) at page 22, LL1169-1177, page 23, LL1210-1239 and page 24 LL1260-1265.
Dr Mungomery reaches similar conclusions in relation to the Applicant’s prognosis. He thought she would benefit from ongoing psychiatric and psychological treatment, including medication.[40]
[40]Exhibit 56 at [8] on page 11; annexure QJVM-1 to Exhibit 11 (affidavit of Quentin Mungomery affirmed 6 February 2013) at [6] on page 15; Exhibit 43A at [7] on page 33.
The Third Respondent’s submissions
The Third Respondent submits that the Applicant’s credit is materially relevant to any assessment by the Tribunal of her loss, to any reliance on the expert medical opinions given by Dr Mungomery and by Dr Beech; and to any reliance upon her own account of her inability to work.
The Third Respondent also submits that the Applicant has not been truthful in her evidence before the Tribunal, either in the earlier hearing or in the rehearing, in relation to evidence concerning her alleged loss, in terms of:
a) any steps taken by her to attempt to mitigate her loss;
b) the period of time that she was actually totally incapacitated to perform work of a kind that she was performing for the First Respondent; and
c) the extent to which she was humiliated or offended by, or otherwise suffered, by reason of the conduct of the Second Respondent.
The Third Respondent submits that the Applicant’s veracity is relevant to the weight to be given to the written medical reports given by Dr Mungomery in 2011 (Exhibit 55), in 2012 (Exhibits 56 and 11) and by Dr Beech in 2015 (Exhibit 39), which were based upon the veracity and accuracy of the history given to those experts by the Applicant.
Credit issues arising out of the first hearing
The Third Respondent refers to the Applicant’s evidence in the first hearing and submit that her evidence lacked credit.
The Third Respondent submits that the Tribunal should accept that the Applicant was not telling Dr Mungomery the truth about her pre-existing psychiatric or psychological health, in an endeavour to paint an incomplete picture when he examined her, so as to support her case. Namely, to increase the loss she says that she has suffered from the conduct of the Second Respondent (rather than from other causes), for which she seeks to make the Third Respondent vicariously liable.
It is submitted that the conduct of the Applicant in deliberately withholding such relevant information is of such a nature as to tend rationally and logically to weaken the Tribunal’s confidence in her veracity.
Treatment in the 12 months prior to 1 December, 2010
The Third Respondent submit that it is clear from the cross-examination of the Applicant in the earlier hearing and the cross-examination of Dr Mungomery in the earlier hearing that the Applicant had not given Dr Mungomery a full account of all her previous psychiatric and medical history when he examined her on three occasions - August, 2011, March 2012 and December 2012.
The evidence reveals that the Applicant had a number of medical consultations with General Practitioners during the period 2008 to July, 2009, where she made complaints of anxiety and depression. The relevant medical records appear in Exhibit 5 and Exhibit 10.
The Applicant does not deny not telling Dr Mungomery about her medical consultations during the period May 2008 to July 2009. However, she says that she did not deliberately not disclose the consultations. Many of the consultations she could not recall, when questioned about them in the first hearing.
Interest on Past Loss of Superannuation Benefits
Interest is claimed at 3.5% per annum for 5.9 years from 12 December, 2010 to 29 November, 2016 on $21,059.06. The amount I award is $4,348.70.
Special Damages and Interest
The parties are agreed that the amount for out of pocket expenses in respect of medication is $396.40. Interest at 3.5% per annum for 5.9 years to the date of this decision is $81.77. The total amount I award is $478.17.
Future Economic Loss
The Applicant submits that on the basis of Dr Beech’s evidence she has an ongoing permanent disability arising from the residual Post-Traumatic Stress Disorder and it is possible that she could suffer an exacerbation of her psychological conditions or a relapse in the future. Since recommencing work, the Applicant has not been able to secure full-time employment with an income commensurate to that of her former employment with the First Respondent. The current wage rate for her former position with the First Respondent is $1,881.42 per fortnight. Her current position is casual, although there is a prospect of full-time employment. On that basis, the Applicant continues to suffer economic loss as a result of the 2010 incident and will suffer economic loss into the future for an indefinite period, with a possibility of further discrete periods of increased loss. On that basis, the Applicant submits that it is appropriate to award a global sum for future economic loss in the amount of $25,000.00 inclusive of superannuation.
The Third Respondent makes no submissions in relation to future economic loss.
I consider the submissions as to future economic loss to be reasonable. I award compensation for future economic loss in the sum of $25,000.00, net of tax. Loss of future earnings or loss of future earning capacity are capital in nature and are not taxable in the hands of the recipient.[99]
[99]ATO Taxation Ruling 2424 at [21].
Future medical and pharmaceutical expenses
Based on the evidence of Dr Beech and Dr Mungomery, both parties agree a sum of $3,000.00 for future medical and pharmaceutical expenses is reasonable. I am prepared to award that amount.
Double compensation
The Applicant submits that she settled with WorkCover Queensland, her common law personal injuries claim against the First Respondent for damages arising out of the 2010 incident. The settlement sum did not include any separate figure for legal costs and from the settlement sum certain refunds were made to Centrelink and to Medicare. In order to avoid the prospect of double compensation, it is submitted that a sum be deducted from amounts otherwise awarded by the Tribunal as compensation to the Applicant. That sum is said to be calculated by taking the net settlement proceeds received by the Applicant and making a modest deduction to take account of her liability to meet legal costs from that sum.
The Third Respondent has made no submissions in relation to this issue.
I accept the Applicant’s submission and proposal as reasonable. I agree that the sum submitted by the Applicant should be deducted from the award of compensation made in favour of the Applicant. The amount is not expressly disclosed in this decision in order to protect the confidentiality of the settlement agreement.
Other Orders
The Applicant no longer seeks an apology from the Third Respondent. She seeks an order that the Third Respondent conduct sexual harassment education programs with their employees and contracted caretakers. The Third Respondent do not address this issue.
I decline to make an order in relation to the conduct of sexual harassment programs. The Third Respondent has the advantage of legal advisers who can no doubt advise it, in relation to its responsibilities under the Act.
Conclusion in relation to relief
The total award for which the Second Respondent and the Third Respondent are jointly and severally liable is:
a) General damages $ 70,000.00
b) Interest on general damages $ 8,260.00
c) Past economic loss $162,594.42
d) Interest on past economic loss $ 33,575.75
e) Past loss of superannuation $ 21,059.06
f) Interest on past loss of superannuation $ 4,348.70
g) Future economic loss $ 25,000.00
h) Special damages $ 396.40
i) Interest on special damages $ 81.77
j) Future medical and associated costs $ 3,000.00
$328,316.10
Less amount to avoid double
Compensation _________
TOTAL $313,316.10
Costs
Both parties submit that they should be given an opportunity to make submissions in relation to costs once the decision is published. I agree to that course.
Non-publication orders
At the hearing Counsel for the parties requested non-publication orders in relation to the Applicant’s medical records. A non-publication order was also requested in relation to details of any settlement agreement reached with WorkCover. I agree to make those orders. The orders are set out below.
Orders
I order that:
1. Subject to the following three orders, the Second Respondent and the Third Respondent pay to the Applicant the sum of $313,316.10 within 28 days.
2. The Applicant file and serve any further calculation of past economic loss relevant to the period 18 May, 2016 to 29 November, 2016, by 12 December, 2016.
3. The Third Respondent file and serve any reply to a further calculation, by 19 December, 2016.
4. If a recalculation of past economic loss and other consequent losses together with interest is made, the Tribunal will issue a substituted order for compensation and interest and nominate the time within which it is to be paid.
5. The Applicant file and serve any submissions in relation to costs by 19 December, 2016.
6. The Third Respondent file and serve any submissions in relation to costs by 8 January, 2017.
7. The Applicant file and serve any submissions in reply by 22 January, 2017.
8. In addition to the Order made on 27 February, 2016, by Senior Member Endicott, publication of the following documents produced to the Tribunal is prohibited under section 66 of the Queensland Civil and Administrative Tribunal Act 2009:
i)Exhibit 5, bundle of medical records of various dates;
ii)Exhibit 10, GP Mental Health Plan, dated 30 July, 2009;
iii)Exhibit 38, Affidavit of Dr Beech, affirmed 10 May, 2016
iv)Exhibit 39, Affidavit of Dr Beech, affirmed 14 March, 2016
v)Exhibit 43, affidavit of Dr Quentin Mungomery, dated 12 April, 2016;
vi)Exhibit 43a, report of Dr Quentin Mungomery, dated 14 October, 2015;
vii)Exhibit 43b, report of Dr Quentin Mungomery, dated 12 April, 2016;
viii)Exhibit 44, transcript of proceeding 18- 20 February, 2013;
ix)Exhibit 45, Bli Bli Clinic Medical Records;
x)Exhibit 46, Nambour day surgery records;
xi)Exhibit 47, Nambour General Hospital medical records;
xii)Exhibit 48, Mindful therapy medical records;
xiii)Exhibit 49, Caloundra Hospital medical records;
xiv)Exhibit 50, Maroochydore 7 day medical centre medical records;
xv)Exhibit 54, bundle of exhibits referred to in the evidence of Dr Beech;
xvi)Exhibit 55, report by Dr Quentin Mungomery, dated 17 August, 2011;
xvii)Exhibit 56, report by Dr Quentin Mungomery, dated 3 April, 2012.
9. Publication of details of any settlement agreement reached between the Applicant and Workcover which have been disclosed to the Tribunal is prohibited under section 66 of the Queensland Civil and Administrative Tribunal Act 2009.
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