White v Calstores Pty Ltd
[2006] QDC 161
•2 June 2006
DISTRICT COURT OF QUEENSLAND
CITATION:
White v Calstores Pty Ltd [2006] QDC 161
PARTIES:
SONJA WHITE (plaintiff)
V
CALSTORES PTY LTD
ACN 000 175 342 (defendant)
FILE NO/S:
D46/03
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Beenleigh
DELIVERED ON:
2 June 2006
DELIVERED AT:
Brisbane
HEARING DATE:
24 and 25 February 2005 & 6 June 2005.
JUDGE:
Tutt DCJ
ORDER:
1. Judgment for the plaintiff in the sum of $84,804.86.
2. I shall hear the parties in respect of costs.
CATCHWORDS:
Claim for damages for personal injury arising out of the defendant employer’s breach of duty of care – where the plaintiff a victim of an armed robbery at a service station – where post traumatic stress disorder injury – whether the employer owed a duty of care to provide safe work environment for plaintiff; safe system of work.
Workplace Health and Safety Act 1995 s 28(1).
Bankstown Foundry Pty Ltd v Braistina (1986) 60 ALJR 362.
Hamilton v Nuroof (WA) Pty Ltd [1956] 96 CLR 18.
Kondis v State Transport Authority [1984] 58 ALJR 531.
McLean v Tedman & Anor (1984) 58 ALJR 541.
COUNSEL:
Mr J W Lee for the plaintiff.
Mr M O’Sullivan for the defendant.
SOLICITORS:
Keith Scott & Associates for the plaintiff.
HBM Lawyers for the defendant.
Introduction
The plaintiff is presently a 36 year old woman who claims damages for personal injury she sustained on 27 October 1998 (then aged 29 years) during the course of her employment as a console operator at a service station owned and operated by the defendant (under a former name) when she was the victim of an armed robbery (“the robbery”) by two offenders.
The Facts
The plaintiff’s evidence is that she commenced her employment with the defendant as a console operator on 23 March 1998 at the defendant’s Kingston service Station.
Photographs were tendered[1] of the work place which show a typical service station environment being an open area known as the “forecourt” where the fuel pumps are located and an enclosed building or shop accessible from the forecourt through sliding glass doors which are controlled within the shop area. A diagram (not to scale) was also tendered of the internal layout of the shop noting particular features.[2]
[1]Exhibits 17a, 17b and 17c
[2]Exhibit 25.
The plaintiff’s evidence was that at approximately 8:00pm on 27 October 1998 she was working alone in the service station and was in the process of serving one of her regular customers (“W”) when she saw the sliding doors of the shop open and “…saw two dark figures standing there holding guns”.[3]
[3]T34 line 50.
The plaintiff’s evidence continued that one of the offenders “…put the gun to the back …” of the head of W who she was serving “…and the other one stood there with the pistol pointing it at me”.[4]
[4]T34 lines 53-54.
The plaintiff was greatly shocked by this experience and continues to be so shocked when she thinks about it. One of the offenders “…had a mask on” and the other one she “…recognised…(as) he was a regular customer”.
One of the offenders demanded that the plaintiff “…put the money in the bag” he thrust at her and after some confusion in being able to open the cash register, she put some money into the bag while at the same time the other offender “…forced [W’s] head onto the bench with the force from the gun”. After money was put into the bag, the offenders left the premises “through the door that they came in through”.[5]
[5]T37 line 33.
The Plaintiff’s Training
In respect of training, the plaintiff’s evidence was that before she commenced her duties she was given a number of “modules” which included “fire, gas, security, health and hygiene, and customer service”.[6] There was also one “…to do with stock control or shrinkage of stock…(and)…a module on robberies…called – armed robbery”.[7]
[6]T19 lines 23-25.
[7]T19 lines 28-35.
The plaintiff’s evidence was that she did not “do” the module in respect of armed robbery because she “was rostered to work” at the relevant time and would “…have to wait until the next training was available”[8] which did not occur before the date of the robbery.
[8]T19 line 38 and T20 lines 39-40.
A document entitled “Service Station Security Manual” which became Exhibit 21 in the proceeding was tendered through the plaintiff and she gave evidence that she received this document from her employer at the commencement of her employment as part of her training for the position. This document referred to a number of aspects of her employment and the premises including procedures and advice on a number of subjects relevant to her employment and which she may encounter in the course of her duties including procedures she should follow in respect of “remote door-locking switches” and “what you should do (and) why you should do it – during a robbery”.
Sliding Glass Doors to the Shop
The plaintiff gave evidence that the sliding glass doors which allowed access to and egress from the shop were able to be controlled by a “remote control button” or “…a fixed button near the console on the wall”.[9] Her evidence was that during the daylight hours from her position in the console area she could “…see through the glass doors and windows of the shop out to the forecourt”[10] and she further stated that if she could not see through he glass doors “on an angle” she could “keep a lookout outside” by coming “…from behind the console and walk around the shop looking out as I was walking up and down from the ATM machine to the console”[11]. The plaintiff further stated that “during the daylight hours” the doors opened because “…there was a sensor on the outside so if anyone came to the doors they’d automatically open”[12] but that “after daylight hours” she used the remote control button to open the doors.
[9]T24 lines 25 and 31.
[10]T24 lines 2-3.
[11]T24 lines 15-20. The diagram being Exhibit 18 also refers to this.
[12]T24 lines 21-23.
The plaintiff gave evidence of “trouble” she had with the locking mechanism of the sliding glass doors and in particular her evidence was in the following terms:
“Did you ever have any trouble with the wall-mounted switch at the console or the remote control switch for the door?—Yes.
Which one did you have problems with?—The remote control.
What sort of problems?—Sometimes when you’d go to lock the doors you’d push the lock button and they wouldn’t lock so you’d have to use the switch on the wall.
Were there other occasions when you had problems with the remote control?—Yes. Also, if you wanted to do some packing or unpacking you’d put the button in your pocket so you could use two hands and sometimes it could be accidentally bumped you’re your acknowledgement and they’d open.
And they’d open?—Yeah.
So, you could be out the back stocking a fridge, inadvertently set off the button and the doors would open?—Yes.”[13]
[13]T25 lines 19-38.
The plaintiff also gave evidence that she complained “about these problems…before the robbery” by either writing “…it in the site diary which everyone had access to read and also in the maintenance log book”[14]. Neither of these documents, ie. the site diary and the maintenance log book, were able to be produced in evidence.[15]
[14]T25 lines 48-53.
[15]T27 lines 1-20.
The plaintiff’s further evidence on this point was in the following terms:
“Did you ever make entries in the site diary and the maintenance log book concerning the malfunctioning doors?—Yes.
Can you remember on how many occasions?—I can’t remember.
Can you remember whether it was on more than one occasion that you made such entries?—Yes.
And how often did you have reference to the site diary? That is, how often did you look at it?—Every day before I started my shift.
Did you read it at the beginning of each shift?—Yes.
Did you ever see entries from anyone else concerning the malfunctioning doors?—Yes.
To the best of your knowledge, did the employer make any attempt to fix the doors?—No.
Were the doors ever, to the best of your knowledge, fixed prior to the robbery?—No.
On the occasion of the robbery itself, were you the only employee at the shop?—Yes.”[16]
[16]T29 lines 15-41.
Other evidence on this topic was also provided by the witness Edward Francis Cole called on behalf of the plaintiff and Lorraine Grace Mifsud called on behalf of the defendant.
Mr Cole’s evidence was that he had been employed by the defendant as the “site manager” of the service station at Kingston for “about two months” prior to the plaintiff commencing employment with the company.
Mr Cole’s evidence with respect to the sliding glass doors was in the following terms:
“Were there any documents at the premises for the recording of problems that occurred from time to time?—Just the standard documents of an operations register, which is a commonly known as the blue book, and also the – the site diaries.
Okay. So, there were two separate documents?—Yes, that’s right. One’s more a formal and one’s an informal reminder.
Okay. Can you recall when she arrived to work at the service station whether there were any problems with the doors of the service station?—At the time I took over the site, and during the whole length of the time I was there, there were numerous problems with the doors.
Okay. What sort of problems, could you tell us, please?—In different – different ways one – and they’re not connected to each other, but they’re all connected to the door. There’s one with the buttons. The – we had to change over the remote control buttons for two reasons. One, there was – it was very difficult to ascertain whether or not it actually worked or not, and two, to get it to actually – to work at all in that, however, the connections were – they wouldn’t pick up unless it was pointed in a certain direction or in a certain way. And even when it did work, as I say, there was an uncertainty about whether it actually had worked. Whereas there’s times where you definitely had closed the doors, and locked them, and yet they still remained unlocked even though to the best of the knowledge of the operator they – they were locked. That was a big defect and they rectified that to some degree by changing – put a new remote in. The other areas was the doors had a continual problem with either opening or shutting, staying open, not shutting fast enough, the panic – not wanting to close as a panic in the speed it should close----
Can I just stop you there?—Yes.
You made reference to the term “panic”. Is there a mode of operation of the doors that causes them to close more rapidly than normally?—Yes there is.
And is that what you refer to as the “panic”?—As the “panic”. Yes, that’s correct, sorry.
Okay. And sometimes that didn’t work?—That’s right. Or, wouldn’t work fast enough. It would close at a certain rate, and then once it got to so far, I remember it would just slowly close which would defeat the purpose. There were times where the doors would jam open and stay open. There was times where I’d stay back in the evening so that the operator wouldn’t be there by themselves because the doors – we couldn’t get the service people out in time, or they were late coming out. It was just operational problems. It was just – they were trying to iron them out. The people and service work were baffled by it.”[17]
[17]T169 lines 3-58.
Later in his evidence when discussing “the locking options so far as the doors were concerned with the remote control and the fixed lock…” Mr Cole’s evidence was in the following terms:
“So, once the customer came in, if you didn’t want the doors to open or close automatically, you had to activate the mechanism preventing anyone again who wanted to enter the store from getting in unless you de-activate it?—Correct. Once the customer was inside, you re-activate it. The customer was then locked in the store until you opened it again for them to get out.
So, therefore, he couldn’t go out of the store – or the customer couldn’t go out of the store unless you let the customer out?—That’s correct.
So, it wouldn’t – he wouldn’t have automatic exit from the store?—That’s correct. As I said, that changed later on. But that was the case at that particular time.
Right. So, in other words if you – once the customer was in the store and you locked the door, then if you moved to any cabinet for example then the doors would remain closed?—That’s correct.
There wouldn’t be any automatic opening?—That’s correct.”[18]
[18]T172 lines 36-58.
The witness Mrs Mifsud’s evidence with respect to “…any difficulties in the operation of the door” was in the following terms:
“All right. Now, on the – prior to the robbery that you heard about later, were you aware of any, on this particular day for example, the 27th October 1998, were you aware of any difficulties in the operation of the door?—There was a problem but that was fixed as soon as we were told that there was a problem with the door. We always had someone check them.
Okay. On the particular day though, on the 27th-----?—No.
There was no problem with the door?—No. None that I was – that I knew of.
And was there any problem with the remote control for the door?—Not that I knew of, no.”[19]
[19]T177 lines 10-25.
Mrs Mifsud was also asked to recall what the plaintiff had told her had happened on the evening of the robbery and Mrs Mifsud’s evidence was “…to the best of my recollection she was doing her normal jobs. Da da da. She didn’t have the doors locked because it was quite busy and it would have been – any (sic) she only locked the doors after the robbery…”[20]
[20]T177 line 59 and T178 lines 1-3.
The plaintiff’s evidence was that shortly before the robbery she “had locked” the doors after W had come in and did not know “…how the doors came to be opened” to allow the offenders access to the shop.[21]
[21]T34 lines 38-42.
On this point the plaintiff was cross-examined in the following terms:
“Can I put to you that you didn’t at any stage prior to the robbery, lock the door?—Yes, I did.
And that – can I put it to you, in fact, the door was operating without any malfunction throughout this particular night?—I’m unsure.”[22]
[22]T96 lines 33-38.
And further she was cross-examined:
“And that in any event you didn’t have any difficulties seeing [W] through the glass? Out onto-----?—That’s because I was looking directly through the glass, I wasn’t on an angle.
And can I put it to you in fact that when you looked out of the store through the glass at night at about 8 o’clock the lights on – that there is no difficulty seeing out, even at an angle?—There is difficulties.
And anyway, you saw him. Now, he came into the store; is that correct?—Yes.
And after he came through the – into the store did someone else leave the store?—There wasn’t anyone else in before him.
All right. Now, as I understand it – understood your evidence you locked – as soon as he came to the door you let him in by activating the remote control; is that correct?—Yes.”[23]
[23]T98 lines 21-41.
And further:
“All right. But in any event, so you say you unlocked the door for him to come though?—Yes.
And then you locked it as soon as he entered?—Yes.
And so that no-one else could go in and out, is that correct?—Yes.”[24]
[24]T99 lines 1-7.
The plaintiff was further cross-examined in the following terms:
“And you then started to serve [W]; is that the position?—Yes, after he walked around and purchased a few things, yes.
Okay. So, obtained a few items to bring to you to scan through the equipment?—Yes.
Is that the position? And you left the console area to go around to get some milk?—I’d just finished the milk order prior to [W] coming in.
When [W] was at the console area you went out to get some milk?—Yes.
And as you went past to get the milk the door was open?—No.
And you went out to get some milk and you came back and again the door was opened as you moved past the doors?—No.
And then you went back behind the console area?—I went back behind the console area but the door was not open.
Can I – what I’m putting to you is that each time you passed the front of the entrance, you triggered the, obviously, the sensor and the doors swung open?—I didn’t go past the exit.
Now, what I put to you is this that at no stage after [W] entered the store did you activate the door so that the doors were locked until after the robbery?—When [W] came in I locked the door and then I don’t know how the doors became open but when they left I used the button – to be (sic) on the console I made it stay on lock.”[25]
[25]T99 lines 41-56 and T100 lines 1-16.
Video Exhibit 31 Sequence
A view of the closed-circuit videos of the service station that evening recorded by the video surveillance system tendered through the witness Ralph Neville Shield and being Exhibit 31 in the proceeding shows that the sequence of significant events from approximately 7:58pm that evening was as follows:
Time Description 7:56:30 (pm) There does not appear to be any customers in the shop at this stage. 7:56:55 Customer W enters store (it is not possible to see whether the doors were locked prior to his entry and had to be unlocked to enable him to enter or were locked again after he had entered) 7:57:30 W walks past the console area; past the glass doors to his left and turns right up an aisle and the glass doors appear to open as he passes within close proximity to them but he does not leave. 7:58:50 The plaintiff appears at the cash register at the console looking out the front glass to the forecourt area with a small grey box (presumably the remote control mechanism) in her right hand. 7:59:32 The plaintiff is still standing at the cash register at the console looking out the front glass to the forecourt area with the grey box placed on the counter in front of her beside the cash register. 7:58:53 Unknown customer enters the shop (again it cannot be determined whether the doors were unlocked by the plaintiff to allow him entry to the store and locked again after his entry). 7:58:56 Unknown customer approaches the console area with what appears to be a credit card in his mouth, pays for his fuel and leaves the console area presumably to exit the shop. 8:00:20 Glass doors are seen to be closing presumably after unknown customer exits the shop. 8:00:27 The plaintiff walks away from the console towards the refrigerators at the opposite end of the shop and past the doors on her left as W approaches console from the right with purchases. Grey box stays on the counter beside the cash register at this time. 8:00:33 Glass doors are seen to be closing presumably after the plaintiff has just walked past them on her way to the refrigerators. 8:00:47 Glass doors are seen to be opened and starting to close presumably after the plaintiff returns from the refrigerators to the console. 8:00:52 The plaintiff returns to the console and proceeds to scan W’s purchases. She does not touch the grey box on the counter in front of her. 8:01:02 Glass doors open and offenders enter shop at an acute angle to the entrance, from the right of the doorway. 8:01:07 Offenders approach the console with weapons and a rifle is placed at the back of the head of W and the robbery takes place. 8:01:28 Offenders exit the shop through the doors which open automatically as they approach and run away from the shop at an acute angle to the left. 8:01:34 The plaintiff picks up the grey box from counter and points it towards the doors, turns to the left side of the console and immediately uses the telephone.
Plaintiff’s Submissions on Liability
It is submitted that the plaintiff’s claim in this matter is based upon the defendant’s failure “…to provide the plaintiff with a safe place of work and a safe system of work” and that it breached its statutory duty pursuant to s 28(1) of the Workplace Health and Safety Act 1995 “…by failure to ensure the health and safety at work of the plaintiff”. Particulars of those respective failures by the defendant are set out in paragraph 6 of the plaintiff’s amended statement of claim dated 22 February 2005 and filed by leave on the opening day of the trial on 24 February 2005.
The particulars of the defendant’s alleged failure in its duty to the plaintiff essentially deal with matters of the inadequate or defective security system in place at the premises; the lack of “any or any adequate training” of the plaintiff in respect of armed persons entering the shop for the purpose of armed robbery; and the inadequacy of lighting in and around the premises. In similar vein the defendant’s alleged breach of statutory duty in respect of the plaintiff is pleaded on the basis that the defendant failed to identify the workplace health and safety risks to which the plaintiff was exposed and did not take appropriate steps to eliminate those risks as a result of which the plaintiff sustained injury which was reasonably foreseeable.
Defendant’s Submissions on Liability
The defendant essentially submits that it provided the plaintiff with a safe system of work; trained the plaintiff sufficiently to cope with and react to an armed robbery and provided her with adequate assistance in the course of her duties. The defendant submits further that “there is no evidence that there was any malfunction with the security doors at the time of the subject accident. The plaintiff did not see the robbers until they were inside the shop in any event. The doors were locked after the accident. The plaintiff should not succeed in respect to this issue”[26].
[26]Paragraph 11 of counsel’s written submissions for the defendant.
The defendant finally submits that the lack of lighting and/or effect of reflection on the shop glass front played no part in the plaintiff’s inability to observe the offenders from entering the shop as she had no opportunity to observe them in the relevant circumstances. Generally the defendant submitted that the plaintiff failed to discharge her onus of proof to enable her to succeed in her claim.
The Law
The duty of care owed by an employer to an employee is well established and is succinctly summarised as a duty “…to take reasonable care to avoid exposing the employee to unnecessary risk of injury”: Hamilton v Nuroof (WA) Pty Ltd [1956] 96 CLR 18 at 25. This duty was repeated in Bankstown Foundry Pty Ltd v Braistina (1986) 60 ALJR 362 at 365 where it was expressed in the following terms:
“What must be asserted is that the law has not changed, it is as accurate today as it was thirty years ago to say that the duty:
‘is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury’: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, per Dixon CJ and Kitto J (at p 25).
We digress to remark upon the formulation preferred by Windeyer J, with whom McTiernan, Kitto, Taylor and Owen JJ agreed, in Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319, namely:
‘For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.”
This passage has been repeated more than once in recent decisions of the court: Raimondo v South Australia(1979) 23 ALR 513 at 518; McLean’s Roylen Cruises Pty Ltd (ALJR) at p 425; (ALR) at p 7. It seems right to us to caution the reader against interpreting the concluding phrase in the citation, that is, “without unduly impeding its accomplishment”, as furnishing an additional qualification to an employer’s liability independently of the question of what is reasonable in the circumstances. If protective measures are reasonably open to an employer then ordinarily they will not unduly impede the accomplishment of the task. The extent to which the proposed measures would unduly impede that accomplishment will bear directly on the question whether it was reasonable to expect them to be undertaken.”
The comments by Mason J (as he then was) in Kondis v State Transport Authority [1984] 58 ALJR 531 at 537 are also apposite where he said:
“The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employees and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee’s safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken.”
As was also said by the High Court in McLean v Tedman & Anor (1984) 58 ALJR 541 at 543:
“Many statements are to be found in the cases which give emphasis that in discharging his duty to take reasonable care to avoid injury to his employee an employer is bound to have regard to any risk of injury that may occur by reason of an employee’s inadvertence, inattention or misjudgment in performing his allotted task. Thus, in Sungvavure Pty Ltd v Meani (1964) 110 CLR 24, Windeyer J said (at p 36): “A safe system of work is one that is safe for an average workman taking reasonable care for his own safety.” But his Honour immediately followed that comment with the observation — “It is not a system which is safe only for persons of superior skill whose attention never wanders.” More recently, in Ferraloro v Preston Timber Pty Ltd(1982) 42 ALR 627; 56 ALJR 872, the court in its unanimous judgment said (ALR) at 629; (ALJR) at 873:
“The employer’s duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task”: see also Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 at 218; Turner v State of South Australia(1982) 42 ALR 669; 56 ALJR 839 at 842.
And further at page 544:
“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 (see Fleming: The Law of Torts (6th ed, 1983) pp 480–1). And in deciding whether an employer has discharged his common law obligation to his employees the court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.”
Findings on Liability
Applying all of the above relevant principles to the circumstances of the instant case and in particular bearing in mind that it would be a reasonable conclusion to draw from those authorities that the higher the risk to which an employee may be subjected in the course of the employment, the higher is the duty of care of the employer to guard against such a risk, I make the following findings:
1. On 27 October 1998 the plaintiff was employed by the defendant as a console operator at its service station at Kingston, Queensland.
2. The defendant owed the plaintiff a duty to provide the plaintiff with a safe place of work; a safe system of work; and to ensure the health and safety of the plaintiff during the course of her employment.
3. The plaintiff was acting in the course of her duties on the said date when at approximately 8:00pm she was the victim of an armed robbery by two offenders who entered the shop premises of the service station.
4. The sliding glass doors of the shop premises had been defective (in that the locking mechanism would not secure the doors in the locked position despite the locking mechanism being applied) from time to time in the months preceding the robbery and the plaintiff had complained to the defendant and her superiors of such malfunctioning during that period.
5. The plaintiff followed the employer’s instructions so far as was practicable during the course of the evening to keep the doors to the shop premises locked so as to control the entry of persons into the shop.
6. The practice of locking and unlocking the doors to allow access to and egress from the shop has to be balanced against the number of customers entering and exiting the premises from time to time so that it would not be practicable to lock the doors after every customer entered the shop during busy periods and then be required to unlock them when they exited.
7. I find that during the period from 7:00pm to 8:00pm on 27 October 1998 there was a gradual decline in customers entering the shop premises and that on my observations of the video and the plaintiff’s oral evidence I find that she did operate the remote control mechanism to lock the doors from time to time in accordance with the defendant’s instructions after customers entered and exited the shop.
8. It is impossible to say from the video evidence whether the plaintiff locked the doors after customer W entered the shop but it would appear from the video image that while customer W was within the premises and apparently selecting his items of purchase, the plaintiff placed the remote control mechanism on the console counter and moved from her position within the console area to the refrigerator within the shop premises which appears to be located near to the doors, at which time the doors opened and closed on two occasions when the plaintiff walked to and from the refrigerator prior to the offenders entering the shop premises.
9. I find that an unknown customer entered the shop premises immediately prior to the offenders entering the shop and he paid for his fuel and exited the doors with the remote control mechanism remaining on the console counter.
10. I find that the plaintiff was then in the process of scanning customer W’s purchases through the scanning machine when the offenders entered the premises through the doors and committed the robbery.
11. I find that at the time the offenders entered the shop premises the doors were not locked. It is impossible to determine from any independent evidence whether this was due to the plaintiff’s failure to lock them after the unknown customer left the shop or because of a fault in the locking mechanism of the remote control. In any event I find that even if it was due to the plaintiff’s failure to lock the doors such failure was no more than inadvertence or inattention on her part in the performance of her duties and not any deliberate failure by her to comply with her employer’s instructions in respect of security directions. While there was no empirical evidence before the court of statistics in respect of the incidence of armed hold-ups of service stations or convenience stores at night, it is common knowledge that such premises are high risk venues and become soft targets for such offences, more particularly where there is only one operator on duty at such a time as in the instant case.
12. In all the circumstances I find that the employer breached its duty of care to provide a safe place of work; safe system of work and to ensure the health and safety at work of the plaintiff in that when it required the plaintiff to work alone in the shop premises at night it should have provided her with the assistance of a security guard to police and/or secure the premises during the night shift at which time there was a foreseeable risk of injury to the plaintiff from the type of occurrence which in fact occurred on 27 October 1998 at approximately 8:00pm.
13. I therefore find that the plaintiff is entitled to an award of damages for the injury she has sustained arising out of the defendant’s breach of duty of care which it owed to the plaintiff.
Plaintiff’s Injury
The plaintiff claims that she suffered personal injuries in the following terms:
(a) Post traumatic stress disorder;
(b) Severe depression;
(c) Elevated anxiety.[27]
[27]Paragraph 7 of the Amended Statement of Claim dated 22 February 2005.
The plaintiff’s evidence with respect to her injuries is that she confirmed what was contained in the medical report dated 3 March 2003 from Dr Donald A Grant, psychiatrist, and being Exhibit 12 in the proceeding and essentially she described her symptoms after the robbery as being:
· She began to cry and her legs felt like jelly.
· She generally felt awful.
· She cried all the way home.
· She was a nervous wreck and cried all night sleeping very little.
· She was feeling very anxious and insecure.
· She would break down and cry.
· She felt unable to keep going to work because of anxiety.
· She had nightmares and bad dreams.
· She became scared and withdrawn.
· She had recurring memories of the robbery.
· She became very angry and irritable and moody.
· She felt lazy being very unmotivated and not wanting to do anything.
· Her relationship with family members deteriorated.
· Her relationship with her then fiancé became strained and “…eventually broke up because of her behaviour”.
· Had to take time off work.
· Was on and off work for a period of time immediately after the robbery.
· Underwent rehabilitation at Woolworths as a day shelf stacker.
· Offered part-time work as a cashier with Woolworths, ultimately resumed full-time work with “Caltex down at Surfers Paradise”.[28]
Plaintiff’s Medical History following Injury
[28]T65 line 5.
Assessment by Ms Janis Fittell, Psychologist
The plaintiff was first interviewed by Janis Fittell, psychologist, on three occasions a short time after the incident occurred on 27 October 1998. Ms Fittell’s observations are detailed in her letter dated 5 November 1998 in which she states:
“Sonia is continuing to experience significant adjustment difficulties such as anxiety, hypervigilance, intrusive thoughts and sleep disturbance. She is anxious about returning to work which she intends to try next week on a graduated basis.”[29]
[29]Exhibit 3.
In her letter dated 30 November 1998 Ms Fittell states:
“I have seen Sonja on 4 occasions since my last correspondence. Sonja’s condition has improved and she has returned to work on her regular shifts. However, she still requires another staff member to be present with her during these shifts, which is not usual practice. She is hypervigilant at work and particularly reactive to any males who look suspicious or who remind her of the offenders. At these times she begins to shake and can become immobilised.”
Treatment by Dr Irene Hides, General Practitioner
The plaintiff also sought treatment from her general practitioner, Dr Irene Hides, who saw her on 30 October 1998 (a few days after the incident). In her letter dated 7 December 1998, Dr Hides observed:
“She was very agitated and not sleeping. Sonja was having counselling and working shorter hours. Sonja was prescribed Prothiaden an antidepressant which is also helpful for agitation.
On 2/11/98 she was again seen. She was still very stressed and not sleeping. The dosage of her Prothiaden was increased. On the 6/11/98 Sonja was seen again. She was still having counselling and having difficulty sleeping. She was waking on and off during the night. On the 17/11/98 Sonja was still agitated and having counselling. Her sleep pattern was erratic.”[30]
[30]Exhibit 5.
Assessment by Ms Cheryl Gilbert, Psychologist.
The plaintiff received counselling from Cheryl Gilbert, psychologist, CRS Australia through WorkCover and a brief report of that counselling dated 1 March 2000 is Exhibit 22 in these proceedings. In that report, Ms Gilbert details that:
“The first counselling session was held on 14/07/99. It was determined at that meeting that counselling would occur on an as-needed basis, in an effort to assist Ms White to independently deal with issues. She has already received PTSD counselling and it was felt that further counselling in that regard would not be beneficial…following the unsuccessful court appeal[31], Ms White took significant steps toward emotional recovery and alternative work options were considered. Counselling in relation to personal issues was terminated, in favour of counselling toward returning to work.”[32]
[31]By the Attorney-General against sentence imposed on the offenders.
[32]See page 2 of Exhibit 22
Assessment by Dr Chris Cantor, Psychiatrist
The plaintiff was interviewed by Dr Chris Cantor on 15 September 1999 (11 months post robbery) and his findings were detailed in his report of 30 September 1999 which is Exhibit 8 in these proceedings.
In that report, Dr Cantor opines:
“This lady appears to have had normal psychological functioning prior to the robbery. Subsequently she has developed a Post Traumatic Stress Disorder. Given effective treatment and rehabilitation she should recover more or less fully. However, it is likely that the recovery process may take one or two years. During this time she should be fit for return to normal employment hours within a period of six months or so. Indeed it could be argued that she is capable of working full-time currently – if acceptable daytime hours were to be available to her…her condition may now be considered as stable and stationary…
…Treatment should consist of suitable anti-depressant therapy combined with psychological approaches to anxiety management.”[33]
[33]See page 5 of Exhibit 8.
In a progress report dated 11 November 1999 Dr Cantor reviews his clinical observations of the plaintiff after an appointment on 28 October 1999 and opines:
“As there has been no detectable improvement and the symptoms remain at a prominent level, it would be too early to consider the condition stable and stationary”.[34]
[34]See page 2 of Exhibit 9.
A further report dated 23 May 2000 (17 months post robbery) was supplied by Dr Cantor after a further interview with the plaintiff on 15 May 2000. Dr Cantor opines:
“This lady continues to suffer Post Traumatic Stress Disorder but appears to be in the road to gradual recovery. Her symptoms have declined from severe to moderate and she has succeeded with a work trial which has led to subsequent casual employment. There have been minor incidents at work to which she has responded somewhat excessively, but her employer appears to have been supportive and she has continued working reliably. She herself volunteers that she would be keen to accept full time employment if it was offered provided that she is not subjected to “high risk duties”. Further gradual improvement may be expected provided she does not encounter further scary incidents reminiscent of the original robbery… Her work related condition is likely to gradually subside over the next one to two years…I believe that it would be reasonable to consider her condition stable and stationary…it should be noted that she has discontinued antidepressants and is not engaged in any ongoing psychological therapy.”[35]
[35]See page 4 of Exhibit 10.
Assessment by Dr J Reddan, Consultant Psychiatrist
The plaintiff was also assessed by Dr J Reddan, consultant psychiatrist, who provided a report of her findings dated 7 August 2002.[36] In that report Dr Reddan observed:
[36]Exhibit 15 (assessment on 6 June 2002, 3 years and 8 months post robbery.)
“I note when assessing the results of the validity scales, that she endorsed the items consistently, indicating that she had paid due regard to the item content. However, she endorsed an extreme number of “pseudosymptoms”. Pseudosymptoms are complaints that often sound like legitimate signs of distress that are connected with a number of common mental disorders. This result suggests that she was attempting to appear to be much more disturbed that she actually is, or that she has come to believe she is more disturbed than she actually is.
…
Ms White’s description of her symptomatology and the accompanying material would suggest that she developed Post Traumatic Stress Disorder (Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition, Text Revision) after the robbery. This may have been a recurrence of the condition because she described developing pervasive anxiety after a beating when she was aged 16 years which lead to her being hospitalised. The PTSD developed in the setting of a troubled young woman who has some histrionic and paranoid personality traits and who has significant unmet dependency needs.
…
As previously stated, Ms White’s PTSD has substantially resolved, but she described some ongoing symptoms in the form of being pre-occupied with crime and a general fearfulness of becoming a victim of crime. She no longer, however, displays marked hyperarousal…She is likely to improve further when the litigation has been concluded as there will then be fewer cues to maintain her pre-occupation with the robbery and her sense of outrage… She does not currently require psychotropic medication…According to the Psychiatric Impairment Rating Scale, her degree of impairment attributable to the armed robbery of 1998 is of the order of approximately 2%.”[37]
[37]See pages 10-12 of Exhibit 15.
Assessment by Dr Donald Grant, Psychiatrist
Dr Donald Grant, psychiatrist, saw the plaintiff on 28 February 2003[38] (4 years and 4 months post robbery) and prepared a report of his clinical findings dated 3 March 2003 which is Exhibit 12 to these proceedings.
[38]Dr Grant clarified in evidence that he examined the patient on 28 February 2003 although his report puts the date as 28 February 2002: T40 lines 31-42.
Dr Grant opines that the symptoms that the plaintiff described would satisfy the criteria for Post Traumatic Stress Disorder as follows:
1. “Ms White was involved in an experience that involved a threat to her physical integrity and a threat of being killed. Her response at the time was one of intense fear, helplessness, and horror.”
2. “This traumatic event has been persistently re-experienced through recurrent and intrusive distressing recollections, recurrent distressing dreams, and intense physiological and psychological reactivity upon exposure to reminders of the event.”
3. “Ms White has had persistent avoidance of stimuli associated with the trauma and has shown a numbing of general responsiveness. She has made efforts to avoid thoughts and feelings associated with the trauma….”
4. “Ms White has shown persistent symptoms of increased arousal, indicated by difficulties with her sleep, irritability and outbursts of anger, hypervigilance and an exaggerated startle response.”
5. “Ms White’s disturbance went on for more than a month.”
6. “Ms White’s disturbance caused clinically significant distress and impairment in social and occupational functioning.”[39]
[39]See page 12 of Exhibit 12.
Dr Grant further observes:
“By virtue of its duration, the PTSD would be regarded as chronic, and I would rate it as having been of moderate severity.
…It would appear that the armed robbery is the primary cause of Ms White’s PTSD. However, there were probably some underlying predisposing factors which made it more likely that she would develop this disorder. She had previously had a traumatic experience at aged 16 when she was severely beaten up. There was some anxiety around the time of that episode, but she denies any ongoing sequelae from it. There may also be some relevant personality factors that have either predisposed Ms White to some extent to the development of the PTSD or coloured the presentation of that disorder after the robbery. She had a rather emotionally deprived and disrupted childhood, with her parents separating at aged five and a subsequent ambivalent relationship with her mother. She has been left with some probable dependency traits in her personality, and she may also have some mild personality traits.
…
Despite the lapse of time and treatment Ms White does demonstrate some ongoing symptoms of residual post-traumatic stress disorder. I believe it is likely that she will have long term anxiety symptoms in this regard, which will have an effect upon her quality of life at work and at home. I would see her as having a degree of permanent impairment due to chronic residual post-traumatic stress disorder of approximately 5% … further treatment at this stage is not likely to achieve very much in the way of further gains.”[40]
[40]See pages 12 and 13 of Exhibit 12.
Assessment by Jackie Bentley, Occupational Therapist and Counsellor
The final report relevant to the plaintiff’s injury was prepared by Jackie Bentley, occupational therapist and counsellor, dated 28 September 2004.[41]
[41]Exhibit 13.
Ms Bentley opines that the effect of the armed robbery incident on the plaintiff contributed to:
· “Difficulty performing her work because of feelings of anxiety, insecurity and fears or her safety. Ms White returned to work the day after the incident as she was determined to help catch the perpetrators. Her anxiety levels remained high she attempted to continue working in a variety of service stations but her anxiety and fear continued. In early 2004 she commenced truck driving and feels relatively safe performing this work because does not have the responsibility of having money with her and she has minimal contact with people particularly strangers.”
· “Reduced motivation initially to perform self-care tasks. Her motivation has not been significantly restored.”
· “Reduced motivation to perform home-making tasks. She did not receive any assistance from her partner or children so for some time “let the lot go”. When there were no clean clothes or the house became a “mess” she would clean and wash.”
· “Hypervigilance in regard to her security at home. She now has dead locks on doors and windows and a guard dog. She continues to wake to sounds particularly if her partner is working a night shift.”
· “Ongoing anxiety is she does not feel safe or sees people who are dressed similarly to the robbers or have their skin colour.”
· “Reduced confidence in driving to the location and suburb where the incident occurred and to other locations which she knows have been robbed.”
· “Cessation of her former leisure/sporting interests. Following encouragement from a friend, she played golf and walked for a year or so. She later discontinued these activities.”[42]
[42]See page 12 of Exhibit 13.
In terms of the plaintiff’s future work prospects, Ms Bentley opines that:
“It is considered Ms White is unlikely to be capable of returning to the type of work in which she has received training ie. console operating or check-out operating because of her fears that she could be robbed again. There appears to be no physical reason that would prevent her from returning to such work but the ongoing psychological sequelae of the robbery including her anxiety, fears and over vigilance would prevent her from performing such work satisfactorily. She would be unlikely to cope with any type of sales work where money is on the premises and where she might be responsible for it. Her limited trust in people would contribute to increasing her anxiety when dealing with strangers. She has no other formal training.
Overall it is considered the truck driving work may be the most suitable and achievable type of work that Ms White can perform in the foreseeable future. This is an industry in which she feels reasonable safe, has had a long association and has a reasonable level of trust in her truck driver associates.”[43]
[43]See page 13 of Exhibit 13.
Findings on Plaintiff’s Injury and its Sequelae
On a review of all medical evidence with respect to the plaintiff’s injury I make the following findings:
1. As a result of the armed robbery at the plaintiff’s place of work on 27 October 1998 the plaintiff developed a post traumatic stress disorder which in the early stages was severe but over a period of approximately 17 months gradually improved to that of a moderate condition with some ongoing symptoms which trouble her from time to time but do not otherwise incapacitate her in any aspect of her life and work.
2. The extent of the plaintiff’s continuing disability from the injury she suffered is to a moderate or minor level only and is of the order of a 2% to 5% permanent impairment from which she will continue to have ongoing symptoms from time to time when subject to circumstances which might remind her of the robbery.
General Damages
The plaintiff’s pre-incident history was not entirely free from problems of the type suffered from the robbery because of her unstable home life in early childhood and as a teenager but I find that her pre-existing problems such as they were, had no significant impact upon her post-incident symptoms and that she is entitled to be compensated for her injury on the basis that her current disability has been caused by the adverse effects of the robbery as described by her and confirmed by the medical reports. Her impairment is of a minor to moderate degree and I assess her general damages in the sum of $30,000.00. I allow interest on the sum of $20,000.00 at the rate of 2% for 7.6 years, that is, $3,040.00.
Past Economic Loss
The plaintiff’s evidence was that as at the date of the robbery she had been employed by the defendant for a period of approximately 7 months and if she had not suffered the trauma of the robbery she would “…have remained working as a console operator at the defendant’s premises at 280 Kingston Road”.[44] At that time she also had the care of two children aged approximately 10 and 7 years respectively.
[44]T65 lines 42-43.
Prior to her obtaining employment with the defendant, the plaintiff’s work history was somewhat spasmodic and of a casual nature which is understandable because of the ages of her children, but her employment with the defendant was full-time and permanent and she had been employed in that capacity for the 7 months prior to the robbery so that it is reasonable to accept that she would have continued in this employment into the future.
At trial the plaintiff was employed as “a semi-trailer driver” carting “general goods” which involves loading and unloading trailers. Her evidence was that this is done by use of “a pallet jack”. This work “is fairly active work” and subjects her to potential injuries from time to time.
The thrust of the plaintiff’s evidence was that her employment future lies in her current area of employment[45], namely that of a truck driver, and that she would “never go back as a console operator” or in any occupation where she would be required to “…interact with the public and take money from them at a central point such as someone working in a TAB office or in a store selling retail products for cash”.[46]
[45]T165 line 10.
[46]T69 lines 40-43.
In cross-examination the plaintiff confirmed that she had “stopped taking any medication” by 2003 and had “…worked at Archerfield BP between February and June 2003 as a console operator”[47] and “…worked as a console operator at BP Pacific Highway between April and June 2004… and then from June 2004 onwards…able to obtain employment as a truck driver”.[48]
[47]T165 lines 45-47.
[48]T165 lines 50-55.
At trial the plaintiff’s evidence was that she worked “…anywhere from 50 to 70 hours a week” and earned income “in the hand, probably about between 800 and a thousand”[49] per week.
[49]T166 lines 9-15.
From the financial information tendered at trial[50], I find that as at the date of the incident the plaintiff earned an average of $450.00 nett per week. This finding is based upon her 1999 income tax return and income tax notice of assessment for that year.
[50]Exhibit 24.
On my calculations, the plaintiff’s income for the financial years ended 30 June 1999 to 30 June 2004 inclusive are as follows:
1999 tax year gross income $29,391.00 tax payable $ 5,916.00 nett income $23,465.00 2000 tax year gross income $24,419.00 tax payable $3,792.00 nett income $20,627.00 2001 tax year gross income $27,805.00 tax payable $4,623.00 nett income $23,182.00 2002 tax year gross income excluding Australian Government pension and allowances ($9,380.00) $8,446.00 tax payable $1,995.00 nett income $6,451.00 2003 tax year gross income excluding Australian Government pension and allowances ($8,299.00) $9,524.00 tax payable $1,985.00 nett income $7,539.00 2004 tax year gross income $27,159.00 tax payable $4,319.00 nett income $22,840.00
On my calculation the plaintiff’s total nett income in the six financial years following the incident to 30 June 2004 exclusive of workers’ compensation payments[51] and Australian Government pension and allowances was approximately $88,790.00[52].
[51]See Exhibit 19.
[52]Total nett income $104,000.00 less workers’ compensation payments of $15,210.00.
The nett income the plaintiff would have received had she continued in her employment with the defendant company in her capacity as a console operator until 30 June 2004 would have been $132,750.00 being for 295 weeks at $450.00 per week. On these calculations therefore, if one accepts that she would have had no interruptions of any description for personal, family or domestic reasons, commonly referred to as the vicissitudes of life, her maximum loss of income over that period would have been approximately $43,960.00. Taking into account that she had two young children to care for and other general contingencies, I am of the opinion that it is reasonable to reduce this amount by 20% and I therefore assess her past economic loss in the sum of $35,000.00.
As plaintiff had received workers’ compensation payments during this period of approximately $15,000.00, she would be entitled to interest on the sum of $20,000.00 of her past economic loss assessment at the rate of 5% per annum over that 5 year period, which I calculate at $5,000.00.
Past Loss of Superannuation
I allow the plaintiff a past loss of superannuation component calculated at the rate of 7% on her past loss of income of $35,000.00 in the sum of $2,450.00.
Future Economic Loss
The evidence is that the plaintiff was able to resume full-time employment as a truck driver in June 2004 and is likely to continue in that capacity for the foreseeable future. Obviously this type of work is demanding but it would appear from the evidence that the plaintiff is able to cope with it and seems to enjoy it. While she continues to work in this capacity she will earn a considerably higher amount than she would be capable of earning as a console operator or the like, but obviously it would be unreasonable to expect that she would continue in her present occupation until she was 60 or 65 years of age.
She is presently aged 36 years and it would be reasonable to expect that she could continue in her present occupation until approximately her 50th birthday as there was no evidence put before the court that she suffers from any other physical disability which might inhibit her capacity to continue in this line of work until at least that age. It is then a question for the court to determine the extent to which the plaintiff’s earning capacity has been impaired beyond that time as a result of the injury she has suffered the subject of this proceeding which will reduce her working capacity.
I do not accept that her working capacity has been significantly affected by the employment-caused injury and despite her reluctance to resume any occupation in the capacity of a console operator she has already demonstrated she is very capable of carrying out this type of work and in fact resumed duties as a console operator in 2002 and 2003 albeit during the day and in the company of other work colleagues. However I accept that it would be reasonable for her not to accept a position in this line of work which involved night duties and/or working alone and to that extent she has suffered an impaired earning capacity as a result of the employment-caused injury for which she is entitled to be compensated.
Effectively her loss under this head of damage is on a deferred basis as it would not become a relevant issue for at least 10 to 15 years from this point in time and I do not accept the submissions made on her behalf that she would have a greatly reduced earning capacity as a result of the employment-caused injury, when she reached a stage where she might elect not to continue in her current occupation.
In those circumstances I find that her reduced earning capacity is of the order of $100.00 per week and I therefore allow her the sum of $22,500.00 for future economic loss.[53]
[53]Luntz Table 2 Multipliers 29 years being 810, less 14 years being 529, = 281 x $100 = $28,100 less 20% = $22,480 rounded to $22,500.
Loss of Future Superannuation
I assess her loss of future superannuation at the rate of 9% in the sum of $2,025.00.
Special Damages
Special damages are agreed in the sum of $5,449.95 being payments made by WorkCover Queensland on the plaintiff’s behalf and I allow this sum.
Fox v Wood Component
I further allow the sum of $4,037.30 under this head of damage being the taxation instalments paid by WorkCover on the plaintiff’s behalf.
Summary of Quantum
In summary I assess the plaintiff’s quantum of damages as follows:
Head of Damage Amount General Damages: $30,000.00 Interest on $20,000.00 of that amount at 2% for 7.6 years: $3,040.00 Past economic loss: $35,000.00 Interest on past economic loss: $5,000.00 Past superannuation: $2,450.00 Future economic loss $22,500.00 Future superannuation $2,025.00 Special damages $5,449.95 Fox v Wood $4,037.30 TOTAL $109,502.25
Orders
In summary therefore, I give judgment for the plaintiff in the sum of $84,804.86 calculated on the basis of an award of damages in the sum of $109,502.25 less refund to WorkCover Queensland of the sum of $24,697.39 in accordance with the long established principles in this type of claim.
I shall hear the parties in respect of costs.
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