Wolters v The University of the Sunshine Coast
[2012] QSC 298
•5 October 2012
SUPREME COURT OF QUEENSLAND
CITATION:
Wolters v The University of the Sunshine Coast [2012] QSC 298
PARTIES:
GJENIE WOLTERS
(plaintiff)
v
THE UNIVERSITY OF THE SUNSHINE COAST
ABN 28 441 859 157
(defendant)FILE NO:
8439 of 2010
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
5 October 2012
DELIVERED AT:
Brisbane
HEARING DATE:
20, 21, 27, 28 and 29 August 2012
JUDGE:
Applegarth J
ORDER:
The plaintiff be awarded nominal damages for breach of contract, otherwise her claim is dismissed.
CATCHWORDS:
EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – Generally – Duty to take reasonable care to avoid psychiatric injury – where plaintiff was employed as a security officer at the University – where during a power outage at the University a superior (“Bradley”) aggressive confronted and verbally abused the plaintiff – where plaintiff suffered psychiatric injury – where another employee of the University had earlier suffered psychiatric injury as a result of similar conduct by Bradley and successfully claimed workers’ compensation – whether by failing to adequately investigate this incident and counsel Bradley the University breached its duty of care to the plaintiff – whether the University breached its contract of employment with the plaintiff – whether, in the circumstances, had the University fulfilled its duty of care by reprimanding and counselling Bradley the incident involving the plaintiff would not have occurred and she would not have suffered psychiatric injury
Batiste v State of Queensland [2002] 2 Qd R 119, cited
Betts v Whittingslove (1945) 71 CLR 637, cited
Chappel v Hart (1998) 195 CLR 232, cited
Czatyrko v Edith Cowan University (2005) 214 ALR 349, cited
E M Baldwin & Son Pty Limited v Plane & Anor (1998) 17 NSWCCR 434, cited
Flounders v Millar (2007) 49 MVR 53, cited
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, cited
Gittani Stone Pty Ltd v Pavkovic (2007) Aust Torts Reports 81-924, cited
Hegarty v Queensland Ambulance Service (2007) Aust Torts Reports 81-919, cited
Jovanovski v Billbergia Pty Ltd [2010] NSWSC 211, cited
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, applied
Lusk v Sapwell [2011] QCA 59, cited
March v E & MH Stramere Pty Ltd (1991) 171 CLR 506, cited
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, applied
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98, cited
Roads and Traffic Authority v Royal (2008) 245 ALR 653, cited
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, cited
Sheather v County Energy (2007) Aust Tort Reports 81-901, cited
Tame v New South Wales (2002) 211 CLR 317, cited
TC v State of New South Wales [2001] NSWCA 380, cited
Vairy v Wyong Shire Council (2005) 223 CLR 422, citedWyong Shire Council v Shirt (1981) 146 CLR 40, cited
COUNSEL:
S D Anderson for the plaintiff
G C O’Driscoll for the defendantSOLICITORS:
Shine Lawyers for the plaintiff
Bruce Thomas Lawyers for the defendant
The plaintiff, Ms Wolters, was employed by the defendant (“the University”) as a security officer. Her work impressed those who worked with her, including her supervisors who assessed her performance very highly. Ms Wolters took pride in her work and planned to work as a security officer at the University for a long time.
Mr Mark Bradley was instrumental in the construction of the University of the Sunshine Coast. As an employee of the University, and as part of a team that built it, he achieved remarkable results. The University’s inaugural Vice-Chancellor, Professor Thomas, who worked closely with Mr Bradley, praised his professionalism in building the campus. He described Mr Bradley as a “very direct, hands-on person who got things done.” Mr Bradley’s background was in the construction industry. He held the position of Director, Capital Programs and Operations. In that role he had management responsibility for a variety of services, including security.
On Friday, 14 March 2008 at around 8.25 am there was a power outage on the campus. During that episode Mr Bradley confronted Ms Wolters. He walked quickly towards her, yelled at her and waved his arms at her. He accused her of having abandoned her duties. He was wrong about that.
During the confrontation Ms Wolters attempted to explain what she had been doing, but to no avail. Mr Bradley did not discuss matters with her. He ordered her to get on with her work, and stormed off.
Mr Bradley’s aggressive behaviour and his unfair accusation against Ms Wolters left her in a bad state. By the time of that afternoon’s de-briefing of staff about the power outage, Mr Bradley had calmed down, and no mention was made at the
de-briefing about any shortcomings in Ms Wolters’ performance. Still, she was badly affected by Mr Bradley’s behaviour that morning, and was so preoccupied by it that she inadvertently drove through a red light that afternoon when she had her children in her car. She struggled to work her rostered shift the next night, and after that she did not work another shift.
On Monday, 17 March 2008 she was accompanied by a supportive work colleague to the Human Resources section where she complained about Mr Bradley’s behaviour. It declined to investigate her grievance.
Mr Bradley learned that Ms Wolters had complained about his conduct, and he had reason to be concerned about what might develop. A few months earlier he had engaged in similar aggressive behaviour towards a fellow employee, Ms Heather Carney. His verbal abuse of Ms Carney on 13 December 2007 proved to be the “final straw” for Ms Carney, who never returned to work.
On 19 December 2007 she lodged with the University a formal complaint of workplace harassment and bullying against Mr Bradley. This was never properly investigated by the University. On the same day she also lodged an application for workers’ compensation. She alleged that on 13 December 2007 Mr Bradley verbally abused her, yelled at her, was physically red, waved his hands and threatened her position. The University did not contest these allegations. On
15 January 2008 it was informed in writing that WorkCover had accepted
Ms Carney’s claim for depression sustained on 13 December 2007.
A few weeks later the University’s Director of Human Resources met with
Ms Carney. She remained seriously depressed and did not want to return to the University, where she would encounter Mr Bradley. On 6 February 2008
Ms Carney signed a Separation Agreement with the University, whereby she accepted a “separation package” that included a redundancy payment. She did not withdraw her complaint against Mr Bradley or indicate that she no longer wished it to be investigated.
By Monday, 17 March 2008 Mr Bradley must have known that he was the subject of another complaint of having aggressively abused a female employee. The best form of defence was to attack. Rather than check his facts and apologise to
Ms Wolters for what he had said and done on the Friday, Mr Bradley wrote to the Vice-Chancellor about Ms Wolters and accused her of “Unsatisfactory Performance”. He accused her of a lack of judgment and inappropriate response during a “critical incident”. This was said to be a matter of concern that required further training and mentoring for Ms Wolters. Mr Bradley recommended that until he was satisfied that Ms Wolters was “capable of responding to and has an understanding of a critical incident” she not be left in charge of a shift or be the point of call for security.
If Mr Bradley had checked his facts before writing this damning letter he would have ascertained that Ms Wolters had not neglected her duties or helped a staff member with a computer problem. This unfair and unfounded accusation aggravated her condition. Understandably, she involved her Union. She claimed workers’ compensation. Her claims were contested, and she engaged lawyers to pursue a claim for damages. Her psychological condition did not improve, and she saw psychiatrists, either for treatment or for them to assess her compensation claims.
Ms Wolters became introverted and did not pursue the recreational activities, family life and friendships that had earlier been part of her life. An attempt to return to the workforce proved disastrous. WorkCover arranged for Ms Wolters to work in an aged care facility, and this experience added to her grief. She took up ginger farming on a small scale, more for therapy than for income, and gradually developed that small business. It provides her with a small and uncertain income. She has been diagnosed with a psychiatric illness.
Ms Wolters’ claims in these proceedings
Ms Wolters claims damages for “negligence and/or breach of contract”. Her claim is based on the incident between her and Mr Bradley on 14 March 2008, not any breach of contract or negligence in the University’s response to that incident. Her pleading alleged, among other things, that Mr Bradley’s acts and conduct were:
(a) assaults; and/or
(b) the intentional infliction of emotional distress; and
(c) trespasses to her person.
However, these allegations were not established by the evidence, or pursued in final submissions. The balance of her pleaded case was that:
1. Mr Bradley’s acts and conduct were negligent, and the University is vicariously liable for them, since he was acting in the course of his employment;
2. The incident was occasioned by the negligence and/or breach of contract of the University in:
(a)failing to provide and maintain a safe workplace;
(b)exposing her to a risk of injury which could have been avoided by the exercise of reasonable care;
(c)failing to take any or any adequate action in relation to the aggressive and distressing acts and conduct of Mr Bradley within the workplace of which it knew or ought reasonably to have known when, in all the circumstances, a reasonable person in the University’s position would have done so.
Ms Wolters alleges that the University knew of Heather Carney’s case, and the fact that she left her employment and received WorkCover benefits as a result of having suffered a major depressive disorder that was caused by the “aggressive and distressing behaviour” of Mr Bradley. She alleges that, as a result, it was aware prior to the incident on 14 March 2008 that Mr Bradley was aggressive, capable of arousing fear and distress in other employees, particularly female employees, and capable of causing injury to them.
The essence of Ms Wolters’ case is that a reasonable person would have contemplated that there was a risk of injury if Mr Bradley engaged in similar conduct. Her case is that the University failed to investigate Ms Carney’s complaint and failed to take the steps that would have followed such an investigation.
Mr Bradley would have been reprimanded and counselled. He would have understood that he was under threat of disciplinary action if he behaved that way again. Ms Wolters submits that if those things had happened then the incident probably would not have happened, and she would not have suffered the psychiatric injury and its consequences in respect of which she seeks compensation.
The issues
The substantial issues in the proceedings are:
1. What happened on 14 March 2008?
2. The aftermath of the confrontation.
3. Whether the University owed Ms Wolters a duty to take reasonable care to avoid psychiatric injury.
4. Whether prior to the incident on 14 March 2008 the University was aware that Mr Bradley was aggressive, capable of arousing fear and distress in other employees, particularly female employees, and capable of causing injury to them.
5. Whether Mr Bradley was negligent in his conduct towards Ms Wolters on
14 March 2008 (being conduct for which the University is vicariously liable).
6. Whether the University breached its common law duty of care to Ms Wolters and breached its contract with her. In particular, did it do so by failing to investigate Ms Carney’s complaint and take appropriate action to reprimand and counsel Mr Bradley?
7. Would the incident with Ms Wolters have been avoided if such action had been taken?
8. Did Ms Wolters suffer the psychiatric injury and other consequences claimed by her by reason of the negligence and/or breach of contract?
9. If so, what is the measure of her damages?
What happened on 14 March 2008?
Some of the events of 14 March 2008 are not in dispute: they are accurately recorded in the security log which was compiled from contemporaneous notes taken by staff. In other respects, there are different recollections between witnesses, or witnesses place different complexions on undisputed events. For example, views differ about whether it took Ms Wolters too long to complete an important telephone call at around 9.15 am. Similarly, there are differences about whether
Mr Bradley rudely interjected over the radio at about that time. It is unnecessary to resolve all of these disputes.
The critical issue is the nature of the confrontation between Mr Bradley and
Ms Wolters that occurred in a breezeway or passageway in Building C at around 9.20 am that day. Again, there is scope for witnesses to have different opinions about whether someone who raised their voice was yelling or not. Still, there is a distinct difference in the recollection of witnesses about what was said and done by Mr Bradley and Ms Wolters during the confrontation.
The resolution of disputed questions of fact turns largely upon a conflict between, on the one hand, the evidence of Ms Wolters and an eye witness called by her,
Ms Gould, and, on the other hand, the evidence of Mr Bradley and his work colleague, Mr Stamford. I was impressed by Ms Gould’s recollection of events. She has recently retired from the University. She has no particular loyalty to either party. She did not know either Ms Wolters or Mr Bradley very well at the time of the incident.
I generally accept the evidence of Ms Wolters concerning the events that day, notwithstanding the possibility that her memory of the event has been overlaid by retelling of it to work colleagues, union representatives, lawyers and doctors. I take account of the University’s submissions concerning the various statements that she has made over the years to such individuals. There are some minor and understandable variations between them. They tell essentially the same story and that story accords with Ms Gould’s evidence, which I accept.
I do not find Mr Bradley’s recollection of events to be particularly reliable, especially where it conflicts with the evidence of Ms Gould. Mr Bradley could not recall certain matters, such as whether he was throwing his arms around. It may be that often he is not conscious of his behaviour when he waves his arms around. He said as much in his evidence. It may be that he simply cannot recall his actions during the confrontation because he was not thinking clearly and had lost control. I found other aspects of Mr Bradley’s evidence unreliable. He claimed to have arrived at work that day at around 8.45 am, some time after the power outage had occurred. If this is so, he should have been informed before arriving at work about this event, and was entitled to be upset that the procedure which required this had not been followed by Mr McGuire. He denies that he was upset about this. The security log records him as having been amongst the individuals who responded at 8.26 am to the power outage. In the end, I was not persuaded that Mr Bradley arrived at work when he claimed or that, if he did, he was not upset that his senior managers failed to tell him about the power outage.
Mr Bradley was unconvincing in his evidence on certain critical points. Under cross-examination he gave evidence that he thought at the time that Ms Wolters had abandoned her duties. However, he did not complain about her conduct in that regard to her immediate superiors, or raise the matter in even the most general terms at the 2.30 pm de-briefing. His evidence that he did not raise the matter at the
de-briefing because it “did not feature” and was not an incident that impacted upon the whole incident was unconvincing. If the matter was as serious as Mr Bradley apparently thought it was on the day then it was a proper subject to mention at the de-briefing. I have reached the view that Mr Bradley did not raise the matter at the de-briefing because by the time of the de-briefing he had calmed down.
I do not find Mr Stamford’s evidence about the incident to be reliable. For example, according to Mr Stamford the incident occurred outside Building C. This is inconsistent with the other evidence, including evidence of what was seen on a CCTV recording. It is inconsistent with the University’s pleaded case that the incident happened when Mr Bradley was walking through the passageway outside Ms Gould’s office. If Mr Stamford can be mistaken about where the incident happened, I can have little confidence in his recollection of the tone of the conversation and the nature of Mr Bradley’s actions. Mr Stamford’s relationship with Mr Bradley, who was and remains his manager, inclines me to conclude that Mr Stamford has downplayed the extent to which Mr Bradley yelled at Ms Wolters and aggressively waved his arms at her. I find that Mr Stamford does not have a reliable recollection of the encounter.
There were also inconsistencies between the evidence of Mr Bradley and
Mr Stamford, for example, as to whether there was a conversation between them before Mr Bradley’s interaction with Ms Wolters.
In summary, I found Ms Gould’s evidence about the contentious events at the time of the confrontation the most reliable.
The confrontation occurred against the following background.
The power outage commenced at 8.25 am. It was responded to by staff whose responsibilities included ascertaining the cause of the outage, activating generators if they did not automatically start and checking to see that people were not trapped in lifts. The staff who responded to the incident included Mr Russell Stamford, who was the Works Manager and Mr Richard McGuire, who was the Manager of Operations. Mr McGuire’s managerial responsibilities included security. Whilst a power outage is a serious event, requiring a rapid response and the restoration of power to enable the University to continue its activities, it is not listed amongst the examples of critical incidents in the University’s “Critical Incident Management Procedures and Guidelines”. The policy for dealing with power failures requires a security officer to:
1. Record all events in a written log.
2. Record time of the power loss.
3. Ensure that buggies and mobile phones remain charged.
4. Prioritise and attend to other calls for assistance.
5. Arrange portable lights and torches.
On 14 March 2008 Ms Wolters commenced her shift at 7 am. Her immediate supervisor, Mr Ashley Muller, was away from work that day. Another security officer, Mr Arnold de Prinse, was working the same shift. He was working on a software program for a key safe that was being built, and so Ms Wolters took over the “in charge role” which meant that she had possession of the radio phone and the security mobile phone. Two other security officers were on parking duties.
Ms Wolters was on her normal patrol when the power outage occurred. She responded appropriately by checking lifts and ensuring that generators had started. Later, she had to attend to fire indicator panels with Mr McGuire which enabled him to make announcements throughout buildings. After Ms Wolters and
Mr McGuire had attended various fire indicator panels he instructed her to maintain visibility in the “spine of the campus”.
At some stage Mr Bradley arrived at the building in which his office and the security office was located. He needed to obtain a key to access a panel to a generator in order to restart it. He could not access the safe in which the key was stored and he sent a radio message asking for the security code for the safe. Neither Mr de Prinse nor Ms Wolters provided it over the radio. As Mr de Prinse explained, providing such a code over an open radio system would have been a breach of protocol. Mr de Prinse recalls that Mr Bradley was loud and frustrated. He was threatening to break into the control panel. Mr de Prinse responded appropriately by going to the office and obtaining the key out of the safe. The problem was solved.
Firecom is responsible for maintaining the fire fighting system at the University. It had occasion to communicate with the University that morning and Ms Wolters took the call. This occurred at about the same time as Ms Wolters was driving in a buggy past Ms Gould’s office. Ms Gould was waving her arms rapidly, so as to request Ms Wolters to come and assist her. The Firecom call came over the radio. A fire alarm had been activated in the sports stadium. Ms Wolters had to address the problem. She advised Firecom of the power outage and told it that she would have someone immediately go to the sports stadium and assess the matter. She picked up the security mobile phone to call this officer, Mr Nathan Gordon, just as she was entering Ms Gould’s office.
At the same time Mr Bradley came over the radio phone and, according to
Ms Wolters, “berated” her about the length of her communications. Others heard Mr Bradley’s interjection over the radio system. It was certainly louder than normal calls. Incidentally, Mr de Prinse who overhead Ms Wolters’ communications with Firecom that day, and who is a very experienced security officer, had no problem with the manner in which she conducted her communications with Firecom. Some might have found Mr Bradley’s interjection over the radio rude. I accept
Mr de Prinse’s evidence that it was “an order rather than a request”, that Mr Bradley was “very forthright and direct” and that the volume of his communication was “very loud and clear”.
Ms Wolters explained to Ms Gould that there was a power outage. Ms Gould did not ask for assistance with her computer, and Ms Wolters did not offer to provide it. She told Ms Gould to contact the IT department for assistance. While she was in Ms Gould’s room Ms Wolters continued to communicate with Mr Gordon about the fire alarm. She was seated opposite Ms Gould at a desk making notes, as required, about her communications with Firecom and Mr Gordon. She looked outside and saw Mr Bradley waving his arms erratically and yelling. She could hear his voice despite the double glazing. He was yelling, “Get the bloody hell out of there”.
Ms Wolters ended her telephone conversation with Mr Gordon and walked immediately out of Ms Gould’s office into the breezeway to see what was wrong.
As she walked into the breezeway, Mr Bradley was walking quickly towards her. He was screaming and yelling. He said things like, “What the hell do you think you’re doing in there? There is a power outage and you’re in there”. Ms Wolters sensed that Mr Bradley was rushing towards her and she felt frightened because she did not know if he was going to stop. He stopped about one metre away from her. She did not know what she had done wrong. He continued to yell at her and wave his arms around in an angry fashion. His face was red and flushed.
Ms Wolters had never encountered anyone behaving like that towards her before. This was despite experience of having people yell at her at the University and lengthy experience as a security officer at Qantas where she was yelled at by “lots of cranky passengers”. She coped with those experiences because she understood that the passengers were upset. On this occasion she did not understand what she had done wrong and what was happening.
Ms Wolters had inadvertently left her mobile phone on Ms Gould’s desk, and
Ms Gould raced after her to return it to her. Ms Gould was in good position to observe Mr Bradley yelling at Ms Wolters and waving his arms in all directions. She described his actions as being “like when somebody’s crazy”. Ms Gould was observing the confrontation while she was backing away to go over to the Student Administration offices. She says that she was very concerned for Ms Wolters and felt that she should have stayed. She reflected, “There was nothing I could do, but I was also scared to turn my back.” She describes Mr Bradley’s behaviour as very aggressive and very confronting. Ms Wolters was clearly upset. Ms Gould can remember her saying, “But I’m just doing my work”. Ms Gould had not seen anything like the interaction that she witnessed between Mr Bradley and
Ms Wolters.
Contrary to Mr Stamford’s evidence that Ms Wolters “gave as good as she got”, I accept Ms Gould’s evidence that Ms Wolters was not arguing and her voice was quivering. Ms Wolters could hardly “get a word in” as she was trying to explain why she had been in Ms Gould’s office. She said words to the effect that she would help people who asked for her help. She may have yelled such words in her defence, but not in anger. Ms Wolters explained that she yelled these words:
“Because I was frightened and scared and I didn’t, I just didn’t know how to express myself.”
I do not accept the suggestion that Mr Bradley simply spoke in an authoritative voice and said things like, “You should be out checking the University”. He did not have a discussion with Ms Wolters. He yelled at her and waved his arms rapidly whilst in close proximity to Ms Wolters. He did not simply gesture the direction in which he wanted her to go. His face was red and he appeared flustered. He was aggressive in the tone of his voice and in the manner of his behaviour. Ms Wolters was frightened.
After aggressively confronting Ms Wolters and, in effect, accusing her of being derelict in her duties, he stormed off in the direction of another building where he understood a generator needed attention.
Mr Bradley believed at the time he confronted Ms Wolters that she should not have been in Ms Gould’s room and was not performing her duties, as required during a power outage. His belief in this regard was not based upon reliable information. Had he bothered to check with Ms Wolters or Ms Gould he would have appreciated that Ms Wolters was called by Ms Gould into her office and at the time Ms Wolters was not to know whether there was some kind of emergency that required her assistance. Whilst in the room Ms Wolters attended to necessary communications and the recording of events. At some stage during the confrontation Mr Bradley may have misunderstood that Ms Wolters had gone into Ms Gould’s room in order to help her with her computer. But this was not Ms Wolters’ intention in going into the room, and she did not in fact help Ms Gould with her computer.
Ms Wolters felt frightened by the manner in which Mr Bradley conducted himself. He walked quickly in her direction whilst yelling and throwing his arms around. However, Mr Bradley’s conduct did not constitute an assault.[1] Mr Bradley did not intend to create in Ms Wolters an apprehension of imminent harmful or offensive contact. At some point Ms Wolters may have been in doubt about whether he would stop walking quickly towards her, but Mr Bradley’s conduct did not give rise to a reasonable apprehension of physical contact. Still, Mr Bradley’s erratic arm movements and verbal abuse of Ms Wolters were frightening. They frightened
Ms Wolters, at whom they were directed, and would have frightened someone in her circumstances.
[1]Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at 114.
Those circumstances were materially different from being yelled at by a drunk or a stranger who was engaging in disorderly conduct. Ms Wolters was being verbally abused in public by a senior manager. His accusations were without justification. His hand gestures and the manner in which he conducted himself were aggressive. Ms Wolters was entitled to feel aggrieved and upset by Mr Bradley’s aggressive behaviour.
The aftermath of the confrontation
After he departed the scene of the confrontation, Mr Bradley apparently calmed down. Power was restored to the University campus at 9.30 am. A de-briefing session about the power outage was convened at 2.30 pm. Mr Bradley led the discussion. Those in attendance recall that he was quite happy with the way people had responded, but brought up an issue about access to keys. Minutes taken by
Mr Bradley’s personal assistant record what was discussed. Mr de Prinse,
Mr Hasted and Ms Wolters gave evidence about what was said. The effect of their evidence is that no issue was raised about radio communications or about the location of security officers during the incident. There were no complaints or issues raised about the performance of Ms Wolters or anyone else. The de-briefing was not the occasion simply to talk about technical matters. As Mr Stamford acknowledged, it would have been appropriate for someone to say that staff should make sure that they remained outside of private offices during a power outage. Nothing of the kind was said.
If Mr Bradley is to be believed, on 14 March 2008 he thought that Ms Wolters had abandoned her duties during the power outage. If he is to be believed, he felt so strongly about the matter that he wrote a memorandum to the Vice-Chancellor on Monday, 17 March 2008 headed “Unsatisfactory Performance” about her conduct. Yet he did not raise any issue in this regard, even in the most general terms and without referring to Ms Wolters in particular, at the de-briefing on the afternoon of 14 March 2008. When asked why he did not raise the matter at the de-briefing his evidence was that:
“It wasn’t an incident that impacted on the whole critical incident – so – we try and look at the whole incident and look at lessons learned and make changes.”
This response was unconvincing and I do not accept it. The duties that security officers perform and Mr Bradley’s concern about security officers being in offices when they should be elsewhere in the University were appropriate subjects to raise at the de-briefing.
In any event, if Mr Bradley believed that Ms Wolters had been derelict in her duty and did not wish to embarrass her at the de-briefing or had some other reason not to raise the issue on that occasion, then it was appropriate for him to take the matter up directly with her at a separate meeting, or have one of her superiors, Mr McGuire or Mr Muller, ask her to explain her actions and apparent dereliction of duty, not to mention her insubordination in yelling at Mr Bradley. None of those things occurred.
Instead of asking Mr McGuire or someone else to address what Mr Bradley believed to be a serious dereliction of duty, he simply mentioned to Mr McGuire that he “had words” with Ms Wolters after seeing her in a room. In response,
Mr McGuire caught up with Mr de Prinse and Ms Wolters and asked after her well-being. He asked her if everything was okay and, according to Mr McGuire, she said that it was. It is telling that Mr McGuire did not ask Ms Wolters to explain why she was in the room. It seems that Mr Bradley did not convey any complaint to
Mr McGuire about Ms Wolters’ performance, and Mr McGuire did not feel the need to ask what had happened. His interest was in Ms Wolters’ well-being.
Although Mr McGuire may not have detected it, Ms Wolters was far from okay. She was upset and distraught. Another security officer, Mr Hasted, was due to start work at 3 pm, but came to the University at about 1 pm because Ms Wolters had phoned him and said she had been abused by Mr Bradley. She said that she would try to complete the shift, but Mr Hasted came in early to be of assistance to her. He attended the de-briefing along with others, including Mr de Prinse. By that time
Ms Wolters had calmed down but, according to Mr Hasted, was “very withdrawn in herself”. She was not “her normal bubbly self”. I accept Ms Wolters’ evidence that she reluctantly went to the de-briefing. She did not feel safe and was afraid that
Mr Bradley would yell at her again. This did not happen. Instead, he commended everyone on their effort and the only issue that he wanted addressed was the keys.
Saturday, 15 March 2008 was Ms Wolters’ last day at work. She worked the shift that night after asking to be relieved of it. No replacement could be found at short notice and she undertook the Saturday night shift with Mr Hasted. He recalls that she was very quiet.
Mr de Prinse has worked as a security officer at the University for about 14 years. Before that he was a police officer in South Australia. Like the other security officers who worked with Ms Wolters or supervised her, he was complimentary about her work performance. The formal evaluations of her performance were good.
On Monday, 17 March 2008 Ms Wolters saw her general practitioner. She did not feel safe returning to work until the matter was resolved, and on the Monday she went to the University’s Human Resources section to seek assistance in resolving the matter. She was accompanied by Mr de Prinse. Ms Wirgau, who worked in that section, told Ms Wolters that she had the option of making a complaint under a bullying and harassment policy and could give evidence which would be reviewed prior to a decision being made. She would still have to be at the University and perform her duties. Ms Wolters understood that she had to provide the University with the evidence and that the University would not investigate the matter.
Mr de Prinse gained the same impression. His recollection of the meeting is that the University did not want to take the complaint and “seemed to put the onus back on to Gjenie”. He did not think that Ms Wolters was in any condition to deal with such an exercise or other legal matters. He was not happy that the University was taking no action.
Ms Wolters declined to make a formal complaint. She felt that she could not return to the University until she felt safe enough. She did not feel safe about the prospect of encountering Mr Bradley.
The fact that Ms Wolters was in no fit condition to work and had taken a grievance to the Human Resources section of the University was no secret on Monday,
17 March 2008. The administrative section in which Mr Bradley, his managers and security officers work is a relatively small organisation and by 17 March 2008
Mr Bradley was in a position to know that Ms Wolters had taken her grievance to the Human Resources section.
An appropriate course of action for Mr Bradley that day would have been to ascertain the true facts, if necessary by speaking to individuals such as Ms Gould, and apologise for his behaviour towards Ms Wolters the previous Friday. Instead he failed to check his facts and sent a memorandum to the Vice-Chancellor accusing Ms Wolters of unsatisfactory performance. This written complaint about
Ms Wolters’ performance arrived “out of the blue”. Rather than escalate the matter and involve the Vice-Chancellor, Mr Bradley should have resolved the matter by other means. Although Mr Bradley had a close working relationship with the
Vice-Chancellor and the Vice-Chancellor encouraged Mr Bradley to report to him about important matters, including matters that might become the subject of media attention, Ms Wolters’ performance during the power outage was not of that character. The Vice-Chancellor had never received a memorandum from
Mr Bradley before about the need to give additional training to a security officer.
On Friday, 14 March 2008 after the incident with Ms Wolters, Mr Bradley went to see the Vice-Chancellor, but made no mention of Ms Wolters. Yet, by Monday,
17 March the matter apparently justified a written memorandum to the
Vice-Chancellor. The memorandum was written without first according
Ms Wolters any opportunity to respond to the serious allegations contained in it about her alleged unsatisfactory performance.
I conclude that Mr Bradley’s memorandum to the Vice-Chancellor was an exercise in self-protection. It was unfair and unfounded. It was apt to aggravate the situation.
Ms Wolters’ psychological condition did not improve. Understandably, she involved her Union when a claim for workers’ compensation became contentious.
Soon after the incident Mr Muller was informed by Mr de Prinse that Mr Bradley had confronted Ms Wolters and had been very aggressive. Mr Muller spoke to
Ms Wolters and she was upset. He tried to assure her that she had done nothing wrong. Mr Muller raised the matter with his manager, Mr McGuire, because he was concerned about her well-being.
The University took no steps to preserve relevant CCTV footage. The junior security officers who reviewed it were not authorised to take copies of it. To do so would have been a breach of policy. Senior managers who were aware of the incident did not take steps to preserve the CCTV footage. Mr Muller viewed it. It did not depict the entire incident. However, it accorded with Ms Wolters and
Ms Gould’s evidence.
The CCTV footage depicted Mr Bradley walking fairly fast from the entry into the breezeway. The image was taken from an angle that did not record Mr Bradley’s right arm, but Mr Muller could see an image of Mr Bradley waving his left arm around. Mr Muller reported the existence of the CCTV footage to his superior,
Mr McGuire. No direction was given to preserve the CCTV footage when
Mr Muller spoke to Mr McGuire about it on 17 or 18 March 2008.
The failure of the University to preserve the CCTV recording became a subject of contention. The matter became litigious. Ms Wolters developed a serious psychological injury. Her life changed dramatically. She had been a fun-loving person who took her two daughters to the beach. She became completely introverted and has never taken her daughters to the beach since the incident. I accept the evidence given by her mother about the dramatic change in her personality and lifestyle. Before the incident Ms Wolters was an extrovert. Now she has very limited interaction with others. Old friends are not invited to visit her. She has no confidence in herself. She remains depressed and continues to receive treatment from her psychiatrist, Dr Mungomery. After an initial improvement her condition has plateaued over the last 12 months.
An issue to be addressed later in this judgment is whether Ms Wolters’ psychiatric illness and the financial and personal consequences of suffering it were caused by the University’s alleged negligence or breach of contract. By way of preview to this causation issue, the psychiatric illness which she currently suffers originates with the incident. An issue exists as to whether that psychiatric illness would have developed or developed to the same extent and for the duration that it has if the University’s response to the incident had been different. Ms Wolters’ current psychiatric condition and the financial loss that she has suffered and continues to suffer as a result of it originate with the incident, but also have been caused by a host of subsequent events. These include the University’s failure to adequately respond to her grievance and Mr Bradley’s conduct in aggravating matters by sending his 17 March 2008 memorandum to the Vice-Chancellor. These issues will be further addressed in connection with issues of causation and damages.
Did the University owe Ms Wolters a duty to take reasonable care to avoid psychiatric injury?
Ms Wolters relies upon implied terms of her contract of employment and duties imposed by the general law upon an employer. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.[2]
[2]Czatyrko v Edith Cowan University (2005) 214 ALR 349 at 353 [12].
The general law, like the law of contract, does not impose two duties on the employer: one to avoid physical injury and one to avoid psychiatric injury. The ruling principle is that an employer is bound to take reasonable care for the safety of its employees.[3] The employer’s obligation is to take reasonable care; it is not an obligation to safeguard an employee from all perils. The duty to take reasonable care to avoid exposing employees to unnecessary risks of injury may require an employer to not expose employees to an unreasonable risk of psychiatric harm.
[3]Tame v New South Wales (2002) 211 CLR 317 at 365 [140].
In Tame v New South Wales,[4] a majority of the High Court rejected “normal fortitude” as a test of foreseeability, whilst accepting the relevance of the idea. In Koehler v Cerebos (Australia) Ltd,[5] McHugh, Gummow, Hayne and Heydon JJ affirmed that “normal fortitude” was not a pre-condition to liability for negligently inflicting psychiatric injury, and that the concept was not to be re-introduced into the field of liability as between employer and employee. Their Honours stated:
“The central inquiry remains whether, in all the circumstances, the risk of a plaintiff ... sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful”.[6]
[4]Supra at 332-333 [16], 343-344 [61]-[62] and 385 [201].
[5](2005) 222 CLR 44 at 57.
[6]Ibid at 57 [33].
Issues of duty and breach often overlap. Questions of breach of duty require examination of the foreseeability of the risk of injury and the reasonable response to that risk.[7] The joint judgment in Koehler emphasised that to begin an inquiry by focusing only upon questions of breach of duty invites error, since an assumption may be made about the content of the duty of care which fails to take account of fundamental aspects of the relationship between the parties. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable, and that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.[8]
[7]Wyong Shire Council v Shirt (1981) 146 CLR 40 at 47-48.
[8]Koehler (supra) at 57 [35].
An employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job.[9]
[9]Ibid at 57-58 [36].
In this case, the University was entitled to assume that Ms Wolters considered that she was able to perform the duties of a security officer. These duties would require her on occasions to confront stressful and sometimes dangerous situations. She had worked as a security officer before gaining employment at the University. She did not show signs that she was not able to do the job. On the contrary, she met the job’s requirements and performed well in tests.
A reasonable person in the position of the University would have foreseen that her work exposed her to the risk of being distressed by traumatic events. In addition, like most employees working in an organisation, she was exposed to the risk of stress at work, and distressing situations that arise from conflict between employees, including distressing situations triggered by conflict between her and someone above her in the University hierarchy. The risk of exposure to stress and potential sources of conflict in the workplace should not be equated with a risk of psychiatric injury, as distinct from psychological disturbance. The liability of an employer is not engaged unless there is a reasonably foreseeable risk of the plaintiff sustaining a recognisable psychiatric illness. In practical terms, a claim in negligence would require that the University knew or ought to have known of conduct which was likely to give rise to a risk of psychiatric injury to Ms Wolters, in circumstances where steps directed to avoiding that risk should reasonably have been taken.
It is possible to imagine a variety of conduct which was likely to give rise to a risk of psychiatric injury to Ms Wolters. These include exposure to traumatic incidents, including acts of violence. Such traumatic episodes may have arisen from the conduct of strangers or from encounters with fellow employees. In that regard, it is possible to conclude at a level of generality that the University owed Ms Wolters a duty to take reasonable care to avoid psychiatric injury since as a security officer she was exposed to the risk of encountering traumatic incidents which would cause not only distress but, depending upon their severity and the steps taken to ameliorate their effect, psychiatric injury.
Expressed in general terms, given the nature of her duties and the range of misbehaviour which a security officer might encounter from strangers, students and university employees, it was reasonably foreseeable that Ms Wolters would experience great distress as a result of encountering such misbehaviour and, depending upon the nature of the misbehaviour, by whom it was perpetrated and the circumstances in which it was encountered, that Ms Wolters might sustain a recognisable psychiatric illness. Depending upon the steps taken to avoid such incidents or to minimise their psychological impact, it is reasonably foreseeable that a security officer might sustain a recognisable psychiatric illness as a result of being exposed to a traumatic incident. The risk of sustaining such an illness was not
far-fetched or fanciful.
It is possible to frame a duty to take reasonable care to avoid psychiatric injury at a level of generality without reference to the precise nature of the traumatic incident. A duty of care cast in such general terms requires consideration of its content in more specific situations. Alternatively, reference to the content of the duty of care in particular situations may inform the related issue of breach. The probability of psychiatric injury would be much higher in a case in which a security officer has been exposed to a murder scene or involved in a hostage crisis than one in which she or he encounters a drunken student on the campus. Exposure to certain traumatic incidents would not be expected to give rise to a recognisable psychiatric illness. Less traumatic incidents, such as heated verbal exchanges between employees, would not ordinarily expose an employee, particularly a security officer who is accomplished in their work and shows no warning signs of possible psychiatric vulnerability, to the risk of a recognisable psychiatric illness. Sustaining a recognisable psychiatric illness in such situations would not be reasonably foreseeable, particularly for someone who is trained to deal with stressful events and presents as someone of “normal fortitude”.
As Hodgson JA observed in Sheather v County Energy,[10] cases of negligence generally raise three broad issues, the second of which tends to be bracketed with the first or third:
[10](2007) Aust Tort Reports 81-901; [2007] NSWCA 179 at [20].
1. Existence of a duty of care;
2. Content of the duty; and
3. Breach of the duty.
Often issues 2 and 3 are bracketed together, as making up the totality of the question of whether a duty of care is breached. Hodgson JA remarked that in some discussions issue 2 appears to be bracketed with issue 1 rather than issue 3, but this does not appear to make any material difference to the reasoning or the result. His Honour’s insights serve to emphasise the importance of determining the content of the duty of care in a particular context. If a duty of care, such as the ordinary duty of an employer to an employee to exercise reasonable care not to expose the employee to avoidable risks of injury, is formulated in general terms, then the content of that duty falls to be considered in conjunction with the issue of breach. That was his Honour’s approach both in Sheather and in Gittani Stone Pty Ltd v Pavkovic.[11]
[11](2007) Aust Torts Reports 81-924; [2007] NSWCA 355.
Whether the content of the duty of care is considered in conjunction with the issue of the existence of a duty of care, or in conjunction with the issue of breach, in a case such as the present the central issue remains whether the employer knew or ought to have known of conduct which was likely to give rise to a risk of psychiatric injury to the plaintiff. Liability in negligence will depend upon whether steps directed to the avoidance or reduction of that risk should reasonably have been taken.
Depending upon the circumstances, it is possible to reach the conclusion that in the specific circumstances of the particular employee, the employer did not have a duty to take reasonable care to avoid psychiatric injury. Such a conclusion might be reached in circumstances where the employer had no reason to suspect that the employee was at risk of psychiatric injury as a result of the relevant conduct. For example, an employer might not reasonably foresee that an employee would suffer a recognisable psychiatric injury, as distinct from psychological disturbance such as stress, as a result of being yelled at by a fellow employee. A more serious form of conduct, such as sustained verbal abuse accompanied by an assault, may make the sustaining of psychiatric injury reasonably foreseeable in the sense that the risk is not far-fetched or fanciful.
As to the related inquiry into breach of duty, the possibility that an employee will suffer a psychiatric injury as a result of workplace stress, bullying or an incident in which the employee is verbally abused by a superior is not sufficient to establish breach. The possibility or even predictability of harm, based upon advances in medical knowledge about the variety of circumstances in which emotional disturbance can trigger, or even develop into, recognisable psychiatric injury do not necessarily result in a co-extensive expansion of legal obligations.[12] As Spigelman CJ has observed:
“It may well be the case that it is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury. That does not, however, lead to the conclusion that the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough.”[13]
His Honour went on to observe that an employer can be liable for negligence because of a failure to protect an employee against bullying and harassment. However, the existence of such conduct does not determine the issue of breach of duty. As his Honour stated, one of the elements required to be assessed is the degree of probability that the risk of psychiatric injury may occur, even when the reasonable foreseeability test of risk that is not far-fetched and fanciful has been satisfied.
[12]Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at 276 [9] per Gleeson CJ.
[13]Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at 478 [23].
In this case, the issue of whether, prior to the incident on 14 March 2008, the University was aware that Mr Bradley was aggressive, capable of arousing fear and distress in female employees, and capable of causing injury to them, is relevant both to the content of its duty of care to Ms Wolters and to the question of whether it breached any duty to take reasonable care to avoid psychiatric injury. It is convenient to deal with its alleged knowledge of Mr Bradley’s capacity to cause distress and psychiatric injury as a separate topic.
Was the University aware prior to 14 March 2008 that Mr Bradley was aggressive, capable of arousing fear and distress in female employees and capable of causing injury to them?
Ms Heather Carney worked for the University for 11 years, commencing in 1996. She worked in the administration of a growing organisation. She worked in association with Mr Bradley, initially as his assistant on the administration of capital works projects and numerous other services. During those 11 years her role changed and by 2007 she was the Business Manager of Capital Programs and Operations (“CPO”). She also served on the University Council. Ms Carney had to cope with heavy workload demands. However, her dealings with Mr Bradley were also a major source of stress in her employment. He was under a lot of pressure. Ms Carney would be the one who would advise him of problems and often it was a case of “shoot the messenger”.
Another problem which developed in the relationship was that as the University grew as an organisation and adopted appropriate procedures and policies for the letting of contracts and other matters, it had to be compliant. Ms Carney had responsibility for ensuring compliance and this brought her into conflict with
Mr Bradley who would ridicule her for being “a purist”. Mr Bradley’s focus was on getting things done, even if this meant not following proper procedures. His dismissive approach to compliance issues was made clear to Ms Carney and others who he would belittle with aggressive comments such as, “What are you carrying on about?”.
Ms Carney raised her concerns informally with Human Resources at different times and was advised that unless she put a complaint in writing, the matters that she raised would not be considered a complaint. She was fearful of doing so. As a result of matters, including unreasonable workload expectations, unreasonable work requests and harassment, Ms Carney sought medical assistance and the University provided counselling assistance for a few months in 2004. She continued with this counselling at her own cost for a few months in early 2006.
In her evidence Ms Carney explained Mr Bradley’s manner of working. He was prone to make loud outbursts. He would become stressed and “have a bit of a blow up”. These became very frequent and the workplace became a fearful environment. Staff members were fearful and Ms Carney ended up as the buffer between the staff and Mr Bradley.
By late 2007 Ms Carney was tired of performing that function. She was tired of being yelled at. She was tired of having staff scared to speak up. Her uncontested evidence was that:
“Mark Bradley yelled at people no matter whether it was staff, whether it was architects, whether it was construction people, academics even. He yelled at people. And it became so frequent it was very hard to handle”.
At different times Ms Carney had taken her concerns to the head of Human Resources or the Registrar at the time. She would tell them that Mr Bradley was having a bad time and ask them to offer him some assistance. She described
Mr Bradley as “a heart attack waiting to happen.” She was concerned about his well-being. At times he would become illogical. At that point she would telephone one of his mates at the University and ask them to contact Mr Bradley and have a cup of coffee with him. She would let them know when Mr Bradley was getting erratic.
If Mr Bradley could be settled and calmed, then things would operate normally. However, if he was not settled and calm he was “a yeller”. He would vent his anger at staff members. He did not only yell at Ms Carney. As she explained, his yelling was “a regular thing”.
The events of 13 December 2007 proved to be the final straw for Ms Carney.
The University had agreed for a contractor to construct a new building. A letter of intent had been signed but there was no contract to govern payment for its work. The contract was still being negotiated by 13 December 2007. The contractor was already performing work and directed an invoice for more than $600,000 to the University. The invoice was held by Mr Stamford.
On 13 December 2007 Mr Bradley learned from his personal assistant that the contractor was pressing for payment and, understandably, he became concerned about the consequences of not paying the invoice. If he had checked his facts,
Mr Bradley would have ascertained that the invoice was with Mr Stamford. One reason it had not been paid is that no purchase order had been raised in respect of the work and this, in turn, was because there was no contract.
Mr Bradley followed Ms Carney to her work area, loudly asking why the invoice had not been paid. He was very angry. He was very red in the face. He stood in front of the desk of the business officer, Ms Fuller, and accused the business unit of not supporting other branches of the CPO. Ms Carney attempted to explain the situation, but Mr Bradley did not listen. At the same time as making repeated pointing gestures, he stated to Ms Carney:
“You have to make a choice of whether you’re coming with CPO or not”.
Ms Carney took this as a threat to her position. She felt sickened, threatened, humiliated and powerless.
Mr Bradley walked off. After he left Ms Fuller said to Ms Carney, “That was unfair, we’ve been asking for the paperwork. When can we expect the apology?”.
Ms Carney’s evidence about this episode is supported by the evidence of Ms Fuller. It was not really contested by Mr Bradley. He acknowledged that he was concerned and upset. His evidence was that “[his] voice would have been raised, as [he did]”. He said that he usually speaks in a loud voice. He could not recollect gesturing with his hands on this occasion and explained that he often gestures with his hands. The following passage of his evidence-in-chief is revealing:
“Did Heather explain to you on that day why the invoice hadn’t been processed?-- No.
Did you let her explain why the invoice hadn’t been processed?-- I recall I was very upset and I moved away pretty quickly.
Why did you move away pretty quickly?-- Well, I didn’t want to prolong the engagement.”
Of course, if Mr Bradley had remained to hear an explanation from Ms Carney and Ms Fuller, he would have ascertained that they did not have the invoice and were not responsible for the problems that had arisen in relation to the non-payment of it.
In summary, the incident with Ms Carney on 13 December 2007 involved:
(a) verbal abuse by Mr Bradley of Ms Carney;
(b) yelling and waving of his arms;
(c)a failure and refusal to listen to what Ms Carney might say in response to the unfounded allegations that had been levelled at her; and
(d)a threat to her position.
After this incident Ms Carney was extremely upset, physically shaken and felt ill. She told a senior Human Resources officer that she was leaving the campus and that she was in no position to be able to face Mr Bradley to request approval to do so. She also contacted the payroll office about details of leave due to her should she resign. She consulted her doctor and he recommended that she make an application to WorkCover. She did so on 19 December 2007 and complained about
Mr Bradley’s abusive conduct on 13 December 2007, including the threat to her position. The University submitted an employer’s report the same day, which accepted that the incident had happened and that the University was satisfied that Ms Carney suffered a work-related injury as a result of the event. The employer’s report was signed by Mr Mark Nugent, the Director of Human Resources.
WorkCover followed up the application and gave further details to the University of the factors that had been nominated by Ms Carney as the cause of her depression. Her complaint related to the incident on 13 December 2007 and stated that
Mr Bradley had been abusive, had yelled at Ms Carney and Ms Fuller and threatened Ms Carney’s position. It reported that Mr Bradley was red and that his hands were moving. The University was given an opportunity to respond with information that either confirmed or refuted these allegations. It chose not to refute them. On 15 January 2008 WorkCover was advised by the University that it had supplied all the available information in its earlier Employer Report. On the same day WorkCover wrote to the University and advised that it had accepted
Ms Carney’s “claim for depression sustained on 13 December 2007” and would pay her benefits.
On 19 December 2007 Ms Carney lodged a formal complaint of workplace harassment and bullying against Mr Bradley with the University’s then Deputy Vice-Chancellor. As Ms Carney explained in her letter of 19 December 2007, and in her evidence, it was a difficult document for her to write for a number of reasons. It complained of a “sustained pattern of bullying, unreasonable work requests and non-recognition of [her] priorities in the workplace”. The incident on 13 December was described by Ms Carney as “the final straw” for her.
Dr Mungomery had earlier made a similar assessment of Ms Wolters’ capacity to work. In his 18 March 2010 report Professor Whiteford also considered that
Ms Wolters was capable of working part-time or full-time in retail or sales. He considered her anticipatory anxiety about returning to work, but thought the longer she remained out of employment the more her self-esteem and self-confidence would be eroded. Accordingly he considered that she was capable of undertaking remunerated employment, initially in a graduated fashion in a range of occupations, including clerical work, sales, administration or manual labour such as she was undertaking on her farm. This was based on her reported success in farming and her hopes for its future.
Professor Whiteford remarked that she had demonstrated the ability to make complex decisions with respect to establishing her business in circumstances in which she originally knew very little about farming, learnt new skills and negotiated the stresses of establishing a new small business in an unfamiliar area. At that stage she was working the equivalent of three full time days a week and expected to work more when harvesting commenced in the new year. Professor Whiteford thought that Ms Wolters’ prognosis was good. In a later report dated 13 August 2012 he remarked about the frequency of consultations between Ms Wolters and
Dr Mungomery, but accepted that the frequency of contact was determined by clinical need. Still, as clinical needs changed so did the required frequency. He expected that Ms Wolters would continue to be reviewed by Dr Mungomery and that the frequency of her consultations with him would be less, especially if she had contact with a treating general practitioner.
In his oral evidence Professor Whiteford was deferential towards Dr Mungomery’s assessment that Ms Wolters still suffers from a psychiatric illness requiring treatment. I accept that Ms Wolters continues to suffer from depression which requires treatment. However, I consider that the severity of her condition will diminish with time and further treatment. She will have a reduced earning capacity and a vulnerability to relapsing into depression.
I assess general damages in the amount of $50,000. Interest at two per cent on half of this amount should be awarded for a period of four and a half years.
Past economic loss is claimed on the basis that, at the time of the incident,
Ms Wolters was earning an average of $658 net per week. Since the incident she has not returned to paid employment. On two occasions she attempted to re-enter the workforce through host employment but these failed due to the ongoing effects of her injury. She completed courses that enabled her to commence ginger farming on a one acre plot of land. She has recently begun to farm turmeric and garlic. She is yet to make a profit from this business which was registered in mid-2009. As a result, she claims damages at the rate of $658 per week which equates to $152,261.20.
The University notes in its submissions that had the ginger price remained at the same level as Ms Wolters expected, then the farm would have made a profit of about $40,000 or $800 per week, which is greater than what she was earning as a security officer. However, ginger prices dropped and she has not made a profit. The University submits that the vagaries of ginger prices are too remote to attribute them to the tort and that a reasonable approach would be to award Ms Wolters the putative loss up until the time that the ginger farm was operational. I do not agree. I accept the University’s submission that it is important to bear in mind that compensation for such a claim requires consideration of, first, the extent to which the injury has caused a diminution in earning capacity and, secondly, how that diminution sounds in actual economic loss. However, Ms Wolters’ pursuit of
self-employment by operating a ginger farm was a reasonable and commendable exercise to rehabilitate herself and to earn an income. It has not been shown that the price of ginger will be permanently depressed. At some point it might be necessary to consider the reasonableness of persistence in a continually loss-making farming business. However, as the University’s own submissions make clear, the farming activity has the potential to yield a reasonable income and it has not been shown that Ms Wolters’ persistence in conducting the ginger farm, and her attempts to diversify it into other crops, is unreasonable.
In the circumstances, I will award past economic loss in an amount slightly less than that claimed by Ms Wolters, to take account of contingencies which might have affected her income had the incident not occurred. I assess past economic loss at $145,000. Interest on past economic loss should take account of the receipt of WorkCover payments. I have regard to the WorkCover payments listed in the plaintiff’s schedule of loss and damage of $58,664.30 and award interest on past economic loss in the amount of $19,426.
There should be an award for past loss of superannuation benefits. Ms Wolters was entitled to superannuation at the rate of 17 per cent. This equates to a sum of $24,650 on her past economic loss of $145,000. Interest on this amount will be $5,546.
As to her impaired earning capacity for the future, Ms Wolters claims a weekly loss until the retirement age of 65 on the basis that she has the capacity to work part time in retail. Based upon the award rate for a retail employee the amount of $254,243 is claimed to which she seeks a further “global amount of $50,000 for disadvantage”. She claims a total of $258,606.55 which reflects a discount of 15 per cent on this total.
On the basis that there will be a full resolution of her disorder once the litigation has been resolved, the University submits that she will be left without any permanent psychiatric impairment, and that she should be awarded a global amount of $70,000 reflecting a period of about two years within which there should be resolution of her symptoms. The University argues that there is no demonstrable loss into the future, since Ms Wolters has chosen to embark upon a speculative farming venture. I do not agree with this approach.
Although Ms Wolters’ condition may improve over time, especially following resolution of the litigation, she will remain at a permanent disadvantage on the open labour market.
I find that if the incident had not occurred then Ms Wolters was likely to remain in employment at the University, with the opportunity for promotion, as a security officer. Alternatively, she might have obtained similar work with another employer.
I take into account the possibility that her farming enterprise may prove a success and over time yield her a higher amount than she was receiving whilst working as a security officer. However, there is also the contingency that it will be unprofitable or yield only a small profit due to vagaries in market conditions. I do not accept the defendant’s submissions that these uncertainties make claims for loss of income based upon her pursuit of the ginger farming enterprise “causally independent from any demonstrable diminution in earning capacity that can be attributed to the event.” The success or failure of the ginger farm is one of many contingencies that must be taken into account in assessing reasonable compensation to reflect Ms Wolters’ loss of earning capacity.
I do not consider that her impairment should be assessed in the amount claimed by her. I consider that her impaired earning capacity should be assessed on the basis of a loss of $150 per week until age 65 (multiplier 797) which amounts to $119,500. This amount should be discounted by 15 per cent for normal contingencies to yield a figure of $101,618. Loss of superannuation benefits should be calculated on that amount at 17 per cent, namely $17,275.
Past expenses are agreed. I intend to award past expenses, interest on past expenses, future expenses and Fox v Wood damages in accordance with
Ms Wolters’ damages schedule which is supported by the material before me or agreed.
I assess quantum as follows:
General Damages $50,000.00
Interest at 2% on $25,000 for 4.5 years $2,250.00
Past Economic Loss $145,000.00
Interest on Past Economic Loss $19,426.00
Past Loss of Superannuation Benefits $24,650.00
Interest on Past Loss of Superannuation Benefits $5,546.00
Future Economic Loss $101,618.00
Future Loss of Superannuation Benefits $17,275.00
Past Expenses $46,292.85
Interest on Past Expenses $5,106.11
(5% per annum excluding WorkCover Queensland
Expenses of $23,240.40)
Future Expenses $28,848.80
Fox v Wood Damages $11,346.00
$457,358.76
Less WorkCover Queensland Refund $93,350.70$364,008.06
Conclusion
On 14 March 2008 Mr Bradley aggressively confronted and verbally abused
Ms Wolters. This incident had disturbing similarities with Mr Bradley’s aggressive conduct towards Ms Heather Carney on 13 December 2007, which resulted in
Ms Carney suffering a psychiatric injury.
The University did not investigate the Carney incident. An investigation would have substantiated Ms Carney’s version of events. An investigation would have resulted in the then Vice-Chancellor reprimanding Mr Bradley and counselling him in strong terms against repeating such behaviour. The University knew in
January 2008 that the incident had caused Ms Carney a psychiatric injury which had been accepted by WorkCover, being an injury that prevented her from returning to work. It knew at that time that Mr Bradley was capable of causing fear and distress in other employees, particularly female employees, and was capable of causing psychiatric injury to them.
In failing to investigate the Carney incident, and in failing to take reasonable action to reprimand and counsel Mr Bradley, the University breached its common law duty of care to Ms Wolters and breached its contract with her. As serious as the Carney incident was, the risk that Mr Bradley would again cause an employee a psychiatric injury was not so high that the only reasonable response was to terminate his employment. As Ms Wolters’ counsel fairly and properly conceded, Mr Bradley’s conduct on 13 December 2007 was not necessarily a sacking offence.
I am not persuaded that a reprimand and proper counselling of Mr Bradley in response to the Carney incident was likely to have altered his impulsive and aggressive response to Ms Wolters’ perceived dereliction of duty during a crisis on the campus on 14 March 2008. A reprimand and proper counselling was apt to reduce the risk that he would be aggressive towards and verbally abuse employees. However, it probably would not have prevented the confrontation that occurred on
14 March 2008. Ms Wolters has failed to prove that a reprimand and proper counselling probably would have avoided the incident with Ms Wolters and its aftermath.
Having regard to my findings on causation, Ms Wolters’ claim in negligence will be dismissed. In the light of my findings on breach, she is entitled to an award of nominal damages for breach of contract. I will hear the parties in relation to costs.
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