Wylie v South Metropolitan College of TAFE

[2004] HCATrans 264

[2004] HCATrans 264

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P22 of 2003

B e t w e e n -

GLORIA JEAN WYLIE

Applicant

and

SOUTH METROPOLITAN COLLEGE OF TAFE

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 2004, AT 11.14 AM

Copyright in the High Court of Australia

MR I.L.K. MARSHALL:   May it please, your Honours, I appear for the applicant.  (instructed by Messrs S.C. Nigam & Co)

MR G.R. HANCY:   May it please the Court, I appear for the respondent.  (instructed by Messrs Talbot & Olivier)

McHUGH J:   Yes, Mr Marshall.

MR MARSHALL:   Your Honour, there is one small factual matter.  I should point out that my client was injured well before all this psychiatric injury on 2 February 1989.  She was an injured laundry worker, and it was following on from that that she did the rehabilitation which gave her brief secretarial training which put her into this library assistant’s job, and it was the library assistant’s job which resulted, we say, in a career‑ending work‑related psychiatric illness.

At page 63 of the papers you will have seen the draft notice of appeal.  What we say about that is that the administration of justice would require a grant of special leave given the matters raised there, in particular ground 2 on page 63.  There are 20 findings which were made by the trial judge, and what we would be seeking to ventilate on appeal is that the Court is in the position to - based on those findings together with the findings of the learned trial judge, this Court would be able to make a conclusion about the foreseeability issue which was where the case foundered at first instance and in the Full Court.

So what we are saying, your Honours, is that on the uncontested evidence the findings that were made – it is a matter of this Court not shrinking from overturning the decision and drawing the conclusion that it was foreseeable.  It was neither far-fetched nor fanciful that she would undergo a psychiatric illness given the situation that she was in.  She is essentially - your Honours, there was a mismatch; putting a physical worker into a job of this nature and accelerating her to the extent of being acting librarian but without any education, without any training, insignificant training, and without – you know, someone who has been a physical worker all her life.  She had got through to – well, she is now 58, but the work at the library was between ages 47 and 51 and there is just no doubt about it that there was a severe depressive illness and severe psychiatric illness.

The issue at trial, of course, was causation, and the way it was pleaded was that the accident – the psychiatric illness arose from the stresses and strains of work.  The defence pleaded that if she has suffered from depression or anxiety then that was caused by the plaintiff’s pre‑existing personality.  Well, the trial judge found that there was not such a pre‑existing personality - her sense of anger and grievance at being returned in 1997 from an acting higher level duties to her proper position as library assistant, and her perception of being let down or not appreciated by her superiors.  That was how the case was fought.

My learned friend made submissions that post‑accident the applicant had fabricated her claim that the employment was stressful and that she is making it all up.  The trial judge found, and the main finding which took it away from the stresses and strains of the job – the stresses and strains being the long hours but, more importantly, doing duties for which she was totally untrained for.  The learned trial judge resolved the matter at page 21 of our booklet and essentially at paragraph 84 he concluded:

that excessive hours or duties did not cause the plaintiff to become ill . . . It was not caused by excessive hours or duties.

He came to the conclusion - still on page 21 at paragraph 82, he accepted Professor Burvill’s evidence:

that the plaintiff’s employment by the defendant was a contributing factor in her development of depression –

but did not accept:

it was caused by excessive duties or the defendant’s failure to respond to her complaints.

Then he gave his reasons for the conclusion, the first of which:

I do not accept the plaintiff’s evidence of her complaints.

Incidentally, her evidence of complaint was corroborated by several of her co‑workers, fellow library workers, about complaints of stress and how she was in tears.  So there was ample corroborative evidence about that which has gone uncommented upon.  The second aspect of it was the history given to a Dr Henderson, the GP.  He considered that there had been a “stepwise deterioration”, and I am looking at paragraph 83 in the middle of that where there is reproduced the testimony of Dr Henderson, the general practitioner.  He says:

It appears that there has been a stepwise deterioration in function since the March 1996 incident.

The March 1996 incident, your Honours, was a fall at work which involved physical injuries.  The applicant’s case was that this simply aggravated the situation, that there was an underlying psychiatric illness arising from the stress and strain.  It ended, as I say, in this career‑ending work-related disorder.

So when your Honours come to look at the draft notice of appeal - not going through it in any great detail, but you will be able to see how it is that there had been errors made by, in our submission, the Full Court as well as the trial judge and the errors, apart from answering the final question with respect to them in the wrong way, the causation question, there was the failure to take into account the evidence of the plaintiff’s husband and her daughter and son as well as the fellow workers, and I refer to ground 10 at page 68 of the booklet:

(a)      failing to take into account a large body of evidence going to the issues –

Item (iii) in particular the respondent said it was “post employment fabrication”.  Well, there are contemporaneous reports of stress and strain at the job, and the reporting to management of the need for qualified staff.

So she was at the lowest rung of the employment ladder, a library worker level 1, whose job really initially was to cover books, answer counter queries and handle inquiries about books.  She got to the job where she was actually running the library.  There was no qualified librarian there, and it was simply too much.

Your Honours, paragraph 13 deals essentially with how it is that the matter was resolved on an unpleaded basis, and this was not the way the case was fought, it was not the way the matter was pleaded, and the trial judge came to the conclusion that he did that the March 1996 fall caused the psychiatric illness, and that was against all the psychiatric evidence.  Why we say it is a significant matter, your Honours, is that there is a need for a detailed and thorough judgment on workplace psychiatric illness.

I refer to a case, which I have not got on my list, the decision of the Court of Appeal in the UK.  The citation – the decision is Sutherland v Hatton [2002] EWCA Civ 76. That was a case involving four cases of people who had work-induced psychiatric illness. There were four appeals and the main judgment was given by Lady Justice Hale. I only refer to it just to simply adopt what she says about psychiatric illness generally and how there are two schools of thought. One is the school of thought:

there are those who are sceptical about the award of damages for psychiatric illness.  They argue that such illness can easily be faked; that, in any event, those who are suffering should be able to ‘pull themselves together’; and that, even if they cannot do so, there is no good reason why defendants and, through them, those who pay insurance premiums should pay for their inability to do so….On the other hand, medical and legal experts working in the field . . . encounter those complaining of psychiatric illness, have impressed upon us how life-shattering psychiatric illness can be and how, in many instances, it can be more debilitating than physical injuries.”

So, in our submission, because it is often difficult to ascertain in the workplace – for the employer to ascertain psychiatric illness, it is difficult for a worker to put their hand up and say, “Well, look I can’t cope”.  It affects their promotion or those sort of activities.  In our case there was a finding against my client that she actually went to the boss, Mr McAulay, although she – the people above her in the library were aware of it, co‑workers.  She said that she did this.  There was a finding against her on the facts.

The point is that it was a fact that there was going to be a restructuring.  The evidence was that the appointment of other staff was going to be something which was put off for the restructuring.  She was left doing this very significant work and she was left in a situation where she was – it was just simply too much to handle; there was a total mismatch.

Your Honours, we rely on the written submissions that have been filed.  We say to you that how is it that this – all we have to establish is that the psychiatric injury was due to workplace stress.  There was a material contribution, and we do not have to prove all the aetiology of the psychiatric illness.  It is sufficient for us to prove that there was a material contribution.  We can say how is it that someone got to 47 years of age without having any significant psychiatric problems, and then when she moves from being a laundry worker, a cleaner, a baker, bakery assistant, a factory hand; moves from those areas into this library assistant area that problems arose.

So, your Honours, we say yes, as you pointed out to Mr Hancy, it is not simply a case of just because you say the trial judge was wrong or indeed the Court of Appeal, the Full Court was wrong, this is a case where we say that the administration of justice would require a re‑examination of this matter.  This Court is in as good a position as the trial court, or indeed the Full Court, on the uncontested evidence.

The other matter is, of course, the need for a thorough and detailed judgment of this Court on workplace psychiatric illness, and the decision that I refer to in Sutherland v Hatton, dealing with those matters as they did, thoroughly dealt with and set out the principles.  I am not saying there is any new principle of law simply because it is a psychiatric illness, because obviously the duty on the employer is well settled.  But what I am saying

the applicability of that to cases of psychiatric illness needs to be dealt with; in particular, teasing out how it is that it is not simply a case of a trial judge saying, “Oh well, I visit it all upon a simple tripping incident” whereas it is obviously far more complicated than that, as both the psychiatrist, Professor Burvill and Dr McCarthy said.

So as I say, there is no issue that she was considerably disabled as a result of the psychiatric illness.  The question is could the accident be implicated?  Well, on the balance of probabilities what other events were there that were implicated?  As I say, the trial judge has gone for the fall in March 1996, with the respondent saying, “Oh, it’s all made up.”  This is in the face of the evidence of the fellow workers, Zygaldo, Wells and the librarian that was there, Mr Downing, before he left and leaving her on her own.  So, your Honours, that is what is sought to be agitated, and we ask that there be a grant of special leave.  Thank you.

McHUGH J:   Thank you.  We need not call on you, Mr Hancy. 

This case does not raise any general principle for determination.  If special leave were granted, it would involve the re‑examination of the evidence given by the trial judge.  Given the important findings of fact made by the trial judge that were adverse to the applicant, based as they were, expressly or inferentially, on credibility, an appeal would have no reasonable prospects of success.  Accordingly, special leave is refused with costs. 

AT 11.31 AM THE MATTER WAS CONCLUDED