[79] I propose to deal with the four fresh complaints which emerged in evidence on the first day of trial and which had not been the subject of particulars. The plaintiff said that she "reported most of what MD had said and done to David Blackett".[32] She said that there were numerous incidents;[33] that one morning she arrived at work and walked down the hallway, that MD jumped and blocked her, that the plaintiff said "Hi" and tried to walk around MD and MD jumped and blocked her again until MD eventually let the plaintiff pass;[34] that another time, MD poked the plaintiff in the back with a broom and said "watch your back";[35] that another time MD pushed the plaintiff in the breast while the two were in the hallway near the staff toilets but the plaintiff could not recall what that had been about; that another occasion related to the plaintiff's taking the defendant's car. The plaintiff was entitled to take the defendant's car for certain work related purposes and she and other employees could book a car at the office. A proper purpose would be to take a client to a medical appointment. The plaintiff gave evidence of an occasion when MD "sort of roused on me, and she just grabbed my wrists... it was firm, and she sort of twisted";[36] the plaintiff continued to describe the incident saying "she just grabbed my wrist and was going off about the car. I can't remember what she was saying... it was about my use of the car."[37]
[80] The plaintiff's counsel later suggested to the plaintiff three things in leading questions: Had MD twisted the wrist? Was it like a "Chinese burn"? Was she "twisting your whole arm or what?" After the plaintiff had agreed to the first two propositions but not the third, the plaintiff demonstrated with a gesture that did not suggest a "Chinese burn" or anything violent and the plaintiff said "she was just, I guess, grabbing my attention and - I don't know."[38] I was not persuaded that the wrist grabbing episode suggested that MD had a propensity for violence whether judged objectively or as judged by the plaintiff. At best for the plaintiff, I accept the plaintiff's evidence that by taking her wrists, MD "was just grabbing my attention". The plaintiff then adopted her counsel's suggestion that she had reported all those matters to Mr Blackett.[39] The plaintiff said that Mr Blackett "kind of played them down and said well maybe - maybe you're overreacting. Maybe you're just reading too much into it."[40]If the plaintiff had provided only those four sketchy details to Mr Blackett they should have provoked some questions from him to determine whether they were evidence of aggression. The plaintiff left the impression as she gave her evidence that even she did not know how to interpret the four episodes she so sketchily recalled in her evidence.
[81] Mr Blackett denied that the plaintiff raised those matters with him.
[82] The defendant denied that, prior to 14 October 2009, the defendant received any verbal complaint from the plaintiff about MD's conduct, "save that on one occasion the plaintiff complained to Blackett that MD had reorganised items on the desk in the staffroom".[41]The plaintiff's counsel persuasively submitted: **"**One wonders why Blackett would have sent this form to the Plaintiff if prior to 14 October 2009 she had complained to him only once, and only about the fact that MD had reorganised items on the staff room desk? Further, one wonders why Blackett would have bothered to arrange and attend the first meeting on about 14 October 2009 if only one such complaint had been made?"
[83] As flawed as the plaintiff's memory appeared to be, so too did Mr Blackett's appear. The events prior to the assault would have had much less significance for him. I accept the plaintiff's evidence to the effect that that the plaintiff made several verbal complaints to Mr Blackett about MD's behaviour. The complaints may have been about the notes left by MD at Tara's house and MD's reactions to the plaintiff's precautionary shifting of Tara's rocking chair from its position close to a wall and to the plaintiff's shifting of MD's desk calendar and MD's pointedly shifting it back. Carers were to use books at Tara's home to leave relevant notes for the subsequent carers to allow them to give proper care of Tara. MD appropriately left notes for subsequent staff to read. A small number of MD's notes, properly interpreted, were critical of the plaintiff's competence and tidiness. MD's notes suggested MD was a few times petty and a few times critical, mostly of the plaintiff. Tara had risked injury by banging her head into a wall while seated in a chair during the plaintiff's shift. The plaintiff sensibly moved Tara's chair further from the wall. If MD's note is to be believed, during MD's shift, MD saw that the chair was in a different position, photographed the position of the chair and then moved the chair closer to the wall. MD's note implied that MD was critical of the plaintiff as a carer and had photographic evidence available of what the plaintiff had done or permitted. Individually and more so cumulatively, the notes and conduct are likely to have provoked the plaintiff to mention them to her supervisor, Mr Blackett. Individually and cumulatively, MD's criticisms appeared as symptoms of MD's pettiness and her dislike of the plaintiff. The notes and conduct did not reasonably lead to the inference that MD was violent or disposed to be violent towards the plaintiff.
[84] Whether or not MD did the things which the plaintiff described in the four fresh complaints, the plaintiff omitted to mention them in her letter, copies of which are exhibits 4 and 22, despite drafting the letter over six days and seemingly laying all her arguments before the defendant for demanding inconvenient roster or client changes. She omitted to tell Mr Blackett about them in the telephone conversation recorded on 26 February 2010. She omitted to draw these four incidents to the attention of her lawyers during preparation for trial. She omitted to tell the medical experts who saw her. She omitted to mention them in evidence before lunch on the first day of trial. I am not persuaded that the plaintiff raised any of those four incidents with Mr Blackett. I accept that the four fresh incidents recalled by the plaintiff were based upon events which had occurred. The plaintiff's failure to mention them until such a late stage means that I am not satisfied that any of the incidents caused the plaintiff to infer a risk of violence to her or a need to alert Mr Blackett that there was cause to fear violence. I am not satisfied that the plaintiff drew any of the four fresh incidents to the attention of Mr Blackett.
[85] The plaintiff has not established that the defendant had notice from the plaintiff orally or by letter that MD had demonstrated aggression to the plaintiff or any other person of a kind which involved violence or even physical touching. The defendant alleged that any "verbal communication which the Plaintiff may have made to Blackett did not alert the Defendant to any risk that MD may physically attack the Plaintiff".[42]I so find.
[86] Neither by the oral communications which the plaintiff has established making, nor by providing to Mr Blackett the original of the letter copies of which became exhibits 4 and 22, did the plaintiff alert Mr Blackett to any matter from which Mr Blackett or the defendant should have concluded there was any risk that MD was more likely than any reasonable person to physically attack the plaintiff.