TORTS – NEGLIGENCE – MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC
HARM – DAMAGE AND CAUSATION – where the plaintiff
was an employee of
the defendant Council – where an email was fabricated in the plaintiffs
Source
Original judgment source is linked above.
Catchwords
TORTS – NEGLIGENCE – MENTAL OR NERVOUS SHOCK OR PSYCHIATRICHARM – DAMAGE AND CAUSATION – where the plaintiffwas an employee ofthe defendant Council – where an email was fabricated in the plaintiffsname during a third party’sdispute with the defendant – where thefabricated email portrayed the plaintiff as racist and engaged in a deceitfulmisuseof her position – where the fabricated email was tabled inparliament – where the plaintiff subsequently suffered a psychiatricinjury, leaving her unable to perform her employment in any capacity –whether the tabling was a necessary cause of the plaintiff’sinjury.TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE –FACTORS DETERMINING EXISTENCE OF DUTY – GENERALLY – wheretheplaintiff was an employee of the defendant Council – where an email wasfabricated in the plaintiff’s name duringa third party’s disputewith the defendant – where the fabricated email portrayed the plaintiff as
racist and engaged
in a deceitful misuse of her position – where the
fabricated email was tabled in parliament – where the plaintiff suffered
psychiatric harm as a result of the public dissemination of the email –
whether the defendant owed the plaintiff a duty of
care – whether the
imposition of a duty of care was precluded because the injury resulted from the
conduct of third parties
beyond the defendant’s control
TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – FACTORS
DETERMINING EXISTENCE OF DUTY – REASONABLE FORESEEABILITY
– where
the plaintiff was an employee of was an employee of the defendant Council
– where an email was fabricated in
the plaintiffs name during a third
party’s dispute with the defendant – where the fabricated email
portrayed the plaintiff
as racist and engaged in a deceitful misuse of her
position – where the fabricated email was tabled in parliament –
where
the plaintiff suffered psychiatric harm as a result of the public
dissemination of the email – whether there was a foreseeable
risk, prior
to the tabling, that the plaintiff would suffer a psychiatric injury from the
perpetuation of the fabricated email in
the public domain – whether the
defendant breached its duty of care.
Workers Compensation and
Rehabilitation Act 2003 (Qld), s 305B, s 306, s 306I, s 306J, s
306N
Workers Compensation and Rehabilitation Regulation 2014 (Qld), s
129, s 130
Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92
WN (NSW) 1070, cited
Donohue v Stevenson [1932] AC 562,
applied
Fraser v State Transport Authority (1985) 39 SASR 57,
cited
Koehler v Cerebos (Aust) Ltd [2005] HCA 15
(2005) 222 CLR 44,
applied
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61
(2000) 205
CLR 254, distinguished
Public Transport Corporation v Sartori [1997] 1
VR 168, cited
Qantas Airways Limited v Fisher [2014] QCA 329,
cited
State of New South Wales v Napier [2002] NSWCA 402,
applied
Sullivan v Moody (2001) 207 CLR 562, cited
Tame v New
South Wales [2002] HCA 35
(2002) 211 CLR 317, cited
Wyong Shire Council v Shirt
[1980] HCA 12
(1980) 146 CLR 40, cited
Judgment (273 paragraphs)
[1]
TORTS - NEGLIGENCE - MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM - DAMAGE AND CAUSATION - where the plaintiff was an employee of the defendant Council - where an email was fabricated in the plaintiffs name during a third party's dispute with the defendant - where the fabricated email portrayed the plaintiff as racist and engaged in a deceitful misuse of her position - where the fabricated email was tabled in parliament - where the plaintiff subsequently suffered a psychiatric injury, leaving her unable to perform her employment in any capacity - whether the tabling was a necessary cause of the plaintiff's injury.
[2]
TORTS - NEGLIGENCE - DUTY OF CARE: EXISTENCE - FACTORS DETERMINING EXISTENCE OF DUTY - GENERALLY - where the plaintiff was an employee of the defendant Council - where an email was fabricated in the plaintiff's name during a third party's dispute with the defendant - where the fabricated email portrayed the plaintiff as racist and engaged in a deceitful misuse of her position - where the fabricated email was tabled in parliament - where the plaintiff suffered psychiatric harm as a result of the public dissemination of the email - whether the defendant owed the plaintiff a duty of care - whether the imposition of a duty of care was precluded because the injury resulted from the conduct of third parties beyond the defendant's control
[3]
TORTS - NEGLIGENCE - DUTY OF CARE: EXISTENCE - FACTORS DETERMINING EXISTENCE OF DUTY - REASONABLE FORESEEABILITY - where the plaintiff was an employee of was an employee of the defendant Council - where an email was fabricated in the plaintiffs name during a third party's dispute with the defendant - where the fabricated email portrayed the plaintiff as racist and engaged in a deceitful misuse of her position - where the fabricated email was tabled in parliament - where the plaintiff suffered psychiatric harm as a result of the public dissemination of the email - whether there was a foreseeable risk, prior to the tabling, that the plaintiff would suffer a psychiatric injury from the perpetuation of the fabricated email in the public domain - whether the defendant breached its duty of care.
[1] Ellana Habermann's health and career was a casualty of the malevolent conduct of persons who fabricated an email in her name during a dispute with the Council at which she was employed.
[2] The fabricated email purported to be an internal Council email authored by Mrs Habermann to the Cook Shire Council's Chief Executive Officer. It falsely portrayed her as racist and engaged in a deceitful misuse of her position to prevent a local aboriginal corporation, Gungarde,[1] from assuming control of the lease of a failed waterfront cruise business which owed rent and rates to Council.
[3] The email was deployed by the director of the cruise business, Pamela Roberson, to encourage Council to settle a debt proceeding instituted by Council against her business. She testified she did not know it was a fabrication. Regrettably, Council botched what should have been the simple task of demonstrating the email was a fabrication. Its failure to do so heightened the risk of the fabricated email being broadcast to the public, thus perpetuating the allegation, implicit in its content, that Mrs Habermann was the author of it. That risk eventually manifested when a Member of Parliament, Mr Rob Pyne, tabled it in Parliament. The result of that public demolition of Mrs Habermann's character was a lasting psychiatric injury and consequent inability to continue working.
[4] It is a well-established incident of the relationship between employer and employee that the employer owes the employee a duty to take reasonable care to avoid foreseeable risk of injury to the employee, including foreseeable risk of psychiatric injury.[2] Mrs Habermann alleges Council failed, in exercising that duty, to avoid the perpetuation in the public domain of the allegation that Mrs Habermann was the author of the fabricated email. Such perpetuation would necessarily involve the accompanying perpetuation in the public domain of the fabricated email because it was the content of the fabricated email which represented Mrs Habermann as its author. I accordingly approach consideration of the alleged failure in exercising the duty of care in this case as a failure to avoid the foreseeable risk of psychiatric injury to Mrs Habermann from the perpetuation of the fabricated email in the public domain.
[5] Council submits that as a matter of law the scope of an employer's duty of care cannot extend to guarding against foreseeable risks of employee injury posed by the conduct of third parties, because such third parties cannot be controlled by Council. If wrong about that, Council denies any breach or that it was causative of injury or that the injury was foreseeable.
[17]
Is the imposition of a duty of care precluded because the injury resulted from the conduct of third parties beyond Council's control?
[18]
[11] Council submits that Council's duty of care as an employer did not, as a matter of law, extend to taking reasonable care to prevent foreseeable risks of injury to employees posed by the conduct of third parties because they were not able to be controlled by Council. That submission must be rejected.
[12] The scope of an employer's duty of care to its employees is informed by the employment context from which the duty derives. Thus, the duty's scope extends to the context of the employee's performance of work required by the employer.[6] Conversely, it does not extend to preventing foreseeable risk of injury having no connection with the employee's employment.
[13] What though of the scope of the employer's duty as it applies to foreseeable risk of injury being inflicted by the conduct of third parties targeting employees because they are employees of the employer? Council submits that scope should only extend to cases in which the employer has a power to assert control over the conduct of third parties.
[14] That submission is substantially founded upon the High Court's decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil.[7] That was an occupier's liability case, in which the plaintiff, an employee of a video shop in a large shopping centre, was attacked and injured by three assailants in the centre's carpark after finishing work late at night. Gleeson CJ, with whom Gaudron and Hayne JJ agreed, held the centre did not have a duty to protect against injury resulting from the criminal behaviour of third parties.
[15] Gleeson CJ observed the 'general rule' is that there is no duty to prevent a third party from harming another, because the common law does not ordinarily impose liability for omissions. However, it was also explained there are exceptions to the general rule, deriving from relationships between parties; one such relationship being that of employer and employee.[8]
[16] In referring to the exception provided by the employer/employee relationship, Gleeson CJ cited Chomentowski v Red Garter Restaurant Pty Ltd,[9]Public Transport Corporation v Sartori,[10] and Fraser v State Transport Authority. The facts of each are instructive.
[19]
2. In what context did the existence of the fabricated email emerge?
[20]
The converging paths of Mrs Habermann, Mrs Roberson and Mr Whittaker
[21]
[28] The plaintiff, Mrs Habermann, moved to Cooktown to commence the position of Procurement Officer with the defendant, Cook Shire Council, in 2006, aged 28. She enjoyed living there, became well settled there and has lived there ever since. She commenced a relationship with another Council employee, John Habermann, in 2007. They married in 2009 and had three children, in 2010, 2012 and 2016.
[29] Mrs Habermann, a well-qualified and high performing employee, rose in Council to the position of Business Services Manager and subsequently the position of Governance and Risk Manager. Her roles at Council involved her implementing Council's improved compliance with the laws and regulations binding local government, including in respect of tenders for Council related work and assets. The professional performance of such a modernising 'change agent' role would inevitably have attracted some resentment. That is particularly so in a region where, as former CEO Timothy Cronin testified, some people think 'there are no rules north of the Daintree'.
[30] Council leased a waterfront property on the Endeavour River in Cooktown to Cayman Cruises Pty Ltd trading as Cooktown Cruises. Its principals, Pamela and Lyle Roberson, ran a cruise boat business from there, but it had suffered losses through interruptions to trading because of family illness related obligations and supply chain difficulties. Cayman Cruises advertised to sell the business in late 2011, hoping to pay their outstanding rent and rates to Council from the proceeds.
[31] At one point Mrs Roberson spoke with Mr Greg Whittaker, CEO of Gungarde, about the possibility of Gungarde buying the business. Mr Whittaker became interested in the possibility of Gungarde's involvement if it could have a 10-year lease. Cayman Cruises' lease had less than four years to run.
[32] On 27 August 2013 Mr Whittaker met Mayor Peter Scott in the presence of Mrs Habermann and Mr McCrae, the manager of Council's planning and environment section. Mrs Habermann thinks the Council's then CEO, Mr Wilton, may also have been there. Mr Whittaker informed the meeting that Gungarde was a prospective purchaser of Cayman Cruises' business. He said they were seeking Council's confirmation, in the event of such purchase, that the Cayman Cruises lease would be assigned or transferred to Gungarde and extended to become a 10-year lease.
[22]
[36] On 13 September 2013 at '4:39:58 PM' Mrs Habermann sent an email ('the authentic email') to Cayman Cruises' Mrs Roberson, cc'g Council's CEO Stephen Wilton, regarding Council's failure to address repeated requests by Cayman Cruises to waive outstanding rates and rent owed and wanting to know if they had gone before Council.[21]
[37] This authentic email, of 13 September 2013, began:
[23]
I am sorry for the delay. I was going to contact you mid-week but things got away from me.
[24]
After we spoke the other week I went through the various letters you forwarded to the ombudsman office. I am very sorry your requests have not been acknowledged and you have not received timely information or action with reference to your inbound correspondence.
[25]
Based on the information in those letters and our talk, I have determined your matter in issue to be as follows:
[26]
You have made multiple requests to have your outstanding rates and rent (over the Webber Esplanade lease) waived as a concession to genuine hardship. You have received no response to these requests, but have received ongoing demands for both overdue rates and rent in arrears.
You would like to know whether your request for consideration has gone before Council; and
if yes, what was the outcome? Or
if no, why has it not gone before Council?
[27]
With reference to the above, I have established that your request has not yet gone before Council. For this I apologise. It is very poor that it has taken so long to action and that, despite your letters to Council, no decision has been reached. In this case the reason for the delay is that the letters were going to one department but were not being seen by our accounts, leasing and rates department - the department who would have actioned your request and who have been sending you letters of demand. This must have been very frustrating for you and is a failure in our operational processes. I will look to have this failure rectified so that it does not happen again.
[28]
To put things right, and to make sure you are awarded a decision as soon as possible, I will undertake to place your request for concession before the October Council meeting. ...[22]
[29]
[38] The email continued in a similarly professional tone, requesting the provision of some further information. It finished with these words:
[30]
If I receive that documentation by the end of the first week of October, your report will go before the October Council meeting. I hope this is an acceptable outcome to your complaint?
[31]
[39] Beneath that appeared Mrs Habermann's standard email descriptors containing her name and position, along with her phone, fax and mobile numbers, her email address, Council's website address and its postal address.
[40] It is contextually helpful at this point to explain the content of the fabricated email. It was created about three years later but its fabricator pretended it was written by Mrs Habermann at virtually the same time as the authentic email. It purported to be an email from Mrs Habermann to then CEO Stephen Wilton at his Council email address. Its subject title was endorsed 'Meeting'. It was purportedly dated 'Fri, 13 Sep 2013 16:39:57+1000'. The ensuing content was:
[32]
I was going to contact you but things got away from me. We had the meeting with Greg Whittaker. He's looking to purchase the Webber Esplanade lease of Cayman Cruises Pty Ltd. Ms Roberson has made multiple requests to have outstanding rates and rent waived as a concession to genuine hardship or until it sells. We have made no formal response to these requests. This has not put her off and the request for consideration has to go before Council soon as she has contacted the Ombudsman's office.
[33]
After meeting with Greg Whittaker, I went through the various files you forwarded me and with what the ombudsman sent through I have sufficient information to make sure the decision is made in our favour. It was bad enough that we had to hand over the housing to the dirty bastards we don't want them down there. I will undertake to write and place a request before the October meeting. No action has been taken with the adjacent lease at this time although I am trying to stop that progressing.
[34]
I can assure you this report will be handled with discretion. I will ensure it is kept secure.
[35]
Contact me if you have any questions. I hope this is an acceptable outcome.
[36]
Mrs Habermann's name, position and contact details then followed.
[37]
The facts persuasively demonstrated the email was a fabrication
[38]
[41] I find this email was a fabrication. As much was clearly established, but regrettably not clearly explained or announced, when examination of Council's email system confirmed the fabricated email had not existed within it. There was also a persuasive array of other facts demonstrating it was a fabrication.
[42] In summary, those facts were:
[39]
(1) The only purported metadata ever provided for the fabricated email is for a document created in July 2016 in an author field named 'Roberson family'.
(2) The fabricated email's content and that of an email trail supposedly connected to it have 10 discrepancies from a genuine Council email on their face.
(3) The purported time of the fabricated email is a mere one second's difference from the genuine email. It is unlikely the same sender could have engineered, let alone bothered to engineer, such extraordinary synchronicity.
(4) The fabricated email commences with the same opening words as the genuine email. That is an implausible coincidence. The opening words of the genuine email have obviously been copied in an attempt to mimic Mrs Habermann's style of expression.
(5) The fabricated email's substantive content smacks of contrivance. Note the conspiratorial closing assurance of secrecy, ensuring 'it is kept secure'. The reference to 'it' could contextually only have been either the content of the email itself or the report to be made to Council for the decision. If it was the content of the email, the very use of email, instead of a simple conversation, would have been creating evidence of the secret. If it was the report to Council then it was no secret - the evidence shows Mrs Habermann gave Mrs Roberson a copy of the report which she gave to Council. Another contrived aspect of the content is its reference to having to 'hand over' housing. That is a contortion of the unsensational reality, explained in Mr Whittaker's evidence, that Council had ceased some involvement in social housing whereas Gungarde had continued its involvement.
(6) The fabricated email's content is at odds with the objective evidence of how Mrs Habermann in fact behaved within Council on that very day regarding Mrs Roberson's lease. For example, at 4.15 pm on 13 September 2013, only 25 minutes before the alleged sending of the fabricated email, Mrs Habermann sent an email to Anne Kelly and Kirstin Fletcher of Council's rates and arrears section, cc'g CEO Stephen Wilton. Its message content, excluding salutations, was:
[40]
Can you please put a halt on any further follow-up to rent and rates in arrears with reference to the Webber Esplanade Lease (Cayman Cruises). They have been asking repeatedly that their outstanding debt be put before Council for hardship consideration, and we (including myself) have been chasing them for those debts, without responding to their request for hardship. Right and left hand not talking to each other.
[41]
So, given they have now taken this to the ombudsman (and it looks like we really should have gotten back to them before) I'll put their request before Council next month, and then we'll have a concrete decision as to how we go forward.
[42]
The content of that email demonstrates that Mrs Habermann's solicitous attitude to Mrs Roberson's problems with Council, as contained in the authentic email to Mrs Roberson, was mirrored by the attitude Mrs Habermann was exhibiting in internal Council correspondence about the matter at that very time. It is inconsistent with the sinister attitude the fabricated email depicts her as having at that time in her internal Council correspondence.
[43]
(7) The fabricated email's substantive content is inconsistent with evidence of Mrs Habermann's demonstrated professionalism and empathy towards the Indigenous community in her work on behalf of Council and, for that matter, in her studies. As to the latter, Mrs Habermann's thesis in achieving her Masters in Urban and Regional Planning in 2012 was on an inclusive strategy for Indigenous land use, planning and development for land returned to traditional owners on Cape York.
[44]
(8) As soon as the fabricated email was provided to Mrs Habermann, she emphatically and convincingly denied writing it. She pointed out many of the above facts, explained the email would not be in Council's system because it was a fabrication. Further, in an unlikely step to take if she had authored the email, she specifically requested Council to appoint an independent IT expert to examine Council's email system so as to establish the truth.
[45]
Mrs Habermann put Mrs Roberson's request to Council, but Council rejected it
[46]
[43] On 3 October 2013 Mrs Habermann sent an email to Mrs Roberson advising she had placed an attached report before Council for its consideration as 'Committee of the Whole'.[24]
[44] True to her word, Mrs Habermann had submitted a confidential request to Council's Committee of the Whole in early October 2013. It was headed, 'Request for waiver of rent and rates in arrears - Cayman Cruises'. It neutrally explained the matter's history, the regulatory framework to be applied by Council regarding eligibility for concessions due to hardship and the nature of the lessor's hardship. It concluded by identifying the alternative potential decisions which it was for Council to make, namely:
grant a full rebate of all rates and charges and write off the outstanding lease rental;
refuse the application for a rebate and refuse the application to write off the debt for outstanding lease rental;
defer payment of rates, charges and lease rentals until the business is sold;
grant a concession of 50% or other percentage determined by Council on all outstanding rates, charges and lease rentals.[25]
[45] Council resolved not to waive, write-off or defer the outstanding rates and rent.
[46] About a year later, on 13 October 2014 Council took possession of the leased property because Cayman Cruises had failed to remedy its breach of not paying rates and rent.[26]
[47]
Council pursued a debt claim against Cayman Cruises
[48]
[47] On 31 July 2015 Council filed a debt claim against Cayman Cruises in the Cairns Magistrates Court seeking recovery of the outstanding rates and rents.[27]
[48] On 16 September 2015 Cayman Cruises filed a notice of intention to defend and a defence in the debt proceedings. The defence alleged the Council had failed to take reasonable steps to mitigate its loss, referring to Council not supporting Gungarde taking over the lease.[28]
[49]
How the fabricated email was allegedly found in Cayman Cruises email account
[50]
[49] Mrs Roberson was assisted in searching for and providing evidence for the debt claim from Cayman Cruises' records by Ms Kym Jerome. To that end, Mrs Roberson gave Ms Jerome access to her computer and Cayman Cruises' email account so Ms Jerome could retrieve relevant data. On Mrs Roberson's account it was Kym Jerome who found the fabricated email in the Cayman Cruises email account, which Ms Jerome was accessing on Ms Jerome's computer. They were at Ms Jerome's house at the time. Ms Jerome drew it to her attention, asking if she had seen it, which Mrs Roberson had not, so she asked Ms Jerome to forward it to Mrs Roberson's family's email address.
[50] Ms Jerome, who was not called as a witness in this trial, was a prominent member of the Cook Shire Residents and Ratepayers Association. By this era the Association was very active in its criticism of Council, both in the content of its Facebook page and its repeated complaints and demands to Council. The Association's attitude to Council in this era was variously described by witnesses as toxic and aggressive. The Association's Facebook page would sometimes refer to specific incidents and specific employees on its Facebook page. Gungarde's Mr Whittaker, who was President of the Association in this era, testified that Ms Jerome would regularly post vitriolic posts about individuals in Council. He also testified that Gungarde's relationship with Council in this era was 'no good'.
[51] Council's CEO between mid-2015 to mid-2018, Mr Cronin, testified to having had quite a few conversations with staff who were upset about being targeted by the Association. He explained his approach was to urge staff to put the Association's comments about them to one side and focus on dealing with the issue raised. Ms Boulton, Council's Human Resources Manager, testified Council's view, in the face of the Association's seeming absence of respect for personal boundaries, was that engaging with the Association would only 'fuel their fire'.
[52] That approach - 'don't engage, keep calm and carry on' - may be apt to some interactions between employees of a bureaucracy and irate members of the public. As will be seen it was not an apt response in the extreme circumstances of this case.
[51]
The debt claim defence builds its grievance about Gungarde not being permitted to come to Cayman Cruises' financial rescue
[52]
[53] On 12 September 2016 Cayman Cruises filed a defendant's reply to the Council's reply in the debt proceedings, attaching copies of its repeated past requests to Council.[29] The defendant's reply annexed a letter by Mr Whittaker dated 22 August 2016, headed with reference to Council's debt claim case against Cayman Cruises.
[54] Mr Whittaker's letter outlined his recollection of his attendance at the meeting of 27 Aug 2013 with Mayor Scott at which Ian McCrae and Mrs Habermann were present and he had raised Gungarde's interest in the takeover and extension of Cayman Cruises' lease. His account of the meeting in the statement was more detailed than recalled by his testimony as a witness in the present case. It included reference to Mrs Habermann's advice of the need for a tender process. Notably it did not allege, nor did he testify, that there was any express mention in that meeting of Cayman Cruises' debt and its requests to Council regarding its debt. The highpoint was an expression of opinion in the letter that Mrs Habermann 'had knowledge of the situation of the lease'.
[55] The purpose of filing this statement in the debt claim seems obscure until it is realised someone on Mrs Roberson's side may have been hoping to support the inference Mrs Habermann had known at the time of the meeting of 27 Aug 2013 of Cayman Cruises' unanswered requests to Council regarding its debt. Inferring such knowledge would undermine Mrs Habermann's assertion in the genuine email some weeks later in September 2013 that she had not known of it. More importantly, it would add superficial credibility to the fabricated email, assuming of course that someone on Roberson's side had conceived of the malevolent plan of creating it by the date of Mr Whittaker's letter of 22 August 2016.
[56] The ensuing events of 14 September 2016, two days after the filing of the above Reply annexing Mr Whittaker's letter, strongly suggests such a plan was afoot.
[53]
Forewarning of the fabricated email's existence and its capacity for harm
[54]
[57] On 14 September 2016 former Councillor Charles Martin spoke by telephone with Mrs Habermann, after several unsuccessful attempts to contact her. Mr Martin told Mrs Habermann he had been told of an email Mrs Habermann had sent to Stephen Wilton on 13 September 2013 which was sent to Bob Norris, the CEO's assistant, and which Norris sent to the Councillors on 16 September 2013. He told her that in the email she was racist and had said she would not allow the filthy mongrels at Gungarde to be allowed on the leased block. Mr Martin explained he had been told of the email by Mrs Roberson and by Mr Whittaker and by Ms Jerome.
[58] It is likely the fabricated email, or at least a version of it, had been created by this time. That appears likely because, when the fabricated email was more overtly deployed in 2017, its fabricated form took the purported appearance of being within an email trail including emails of 13 and 16 September 2013. They were the same dates Mr Martin spoke of when he telephoned Mrs Habermann. While her evidence of what he said is not evidence of the truth of its content, the coincidence of the dates mentioned is probative of the likely existence of the fabricated email by the time of Mr Martin's call.
[59] After receiving Mr Martin's call on 14 September 2016, Mrs Habermann sent an email to CEO Tim Cronin, Acting CEO Martin Cookson (Mr Cronin was on leave) and then Human Resources Manager Sarah Wright, cc'g Narelle Dukes, CEO's executive assistant and John Habermann, Mrs Habermann's husband.[30] The subject was 'PHONE MESSAGE - Phone Call with Charlie Martin - Allegation of Racism'. The email described Mrs Habermann's receipt of the phone call from Mr Martin and what he had told her. She wrote the content of what he told her was 'distressing and confronting'.
[60] Mrs Habermann's email about what Mr Martin had told her, emphasised she was not racist, she had been supportive of traditional owners in her work and she denied writing the alleged email. Council admits Mrs Habermann was concerned about the allegation that she was racist having regard to her demonstrated commitment to racial equality and promotion of the interests of traditional owners in respect of land tenure.
[61] Mrs Habermann also testified of the concerning notion that someone being 'out there', talking about her writing emails condoning racism, had the potential to ruin her career, destroying relationships she had worked so hard to build in 'such a small town'.
[55]
3. What was Council's response to the promulgation of the fabricated email?
[56]
The fabricated email is deployed in the debt claim
[57]
[66] A conciliation or settlement conference in the debt claim was set by the court to occur on 28 February 2017. This apparently prompted Cayman Cruises on 16 February 2017 to file an affidavit of Mrs Roberson in the debt claim. The affidavit, affirmed 14 February 2017, annexed 'certificate of exhibit 1 to 83', the attached version of which contained exhibit 49A 'extract from email' dated 13 September 2013.
[67] Document 49A included the fabricated email, quoted in full earlier in these reasons. It appears document 49A must also have included some purported surrounding email chain content. The affidavit alleged the exhibits showed Mrs Roberson had been unfairly treated, her attempts at resolution flagrantly disregarded and that there had been 'collusion within the officers and their roles and responsibilities to deliver fair and sound business practices'.[31]
[68] A curious feature of the purported email chain is that, if all genuine, it meant various persons, including Councillors and Cayman Cruises, would have received a copy of the fabricated email some years earlier, yet there is no evidence anyone noticed it then. Mrs Roberson was to later explain the late emergence of document 49A in an email to Samantha Taylor of Forbes Dowling Lawyers, Council's solicitor in the debt claim. She asserted that 'a few older documents came to light when we were preparing for the settlement conference and I didn't feel it would be right to drop them on you on the day'.[32] The surprising implication was that Mrs Roberson failed to notice such a memorable email as the fabricated email back when it had supposedly been received within her business's emails in 2014.
[69] It is also curious that Mrs Roberson was seemingly implying to Ms Taylor that the document had only come to light in preparing for the forthcoming settlement conference when Mr Martin had in the previous year advised Mrs Habermann he had heard of its existence and content, from allegedly talking to Mrs Roberson, Ms Jerome and Mr Whittaker.
[70] Mrs Roberson gave evidence for Mrs Habermann in the present proceeding, explaining in effect that she was testifying to try and make good what she unwittingly may have been involved in. She denied having fabricated the email. If her denial is accurate, it is likely someone else with access to Cayman Cruises' emails created the fabricated email, it being part of an email chain purportedly emanating from Cayman Cruises. It is unnecessary in this case to determine which person or persons actually fabricated the email. The pertinent point about its origin in this case is that it was fabricated, that is, it was not written by Mrs Habermann.
[58]
Mrs Habermann learns of the deployment of the fabricated email
[59]
[72] On the morning of 23 February 2017 Council CEO Tim Cronin emailed Mrs Habermann a copy of the fabricated email, apparently in its form as contained within document 49A.[34] His email message was, 'As discussed', so he must recently have spoken to her about its deployment in the debt claim.
[73] Around lunch-time on 23 February 2017 former Councillor Charles Martin attended Mrs Habermann's home and informed her he had spoken to Mr Whittaker about the fabricated email and wanted to speak to her about it. She told him the email had not been leaked from Council as it had never been written and was unable to discuss it with him. She repeatedly thanked him and repeatedly asked him to leave. She eventually walked away from him into her house.
[74] Mrs Habermann then sent an email at 1.29 pm on 23 February 2017 to CEO Tim Cronin, cc'g Narelle Duke and John Habermann, advising what had been said when Charlie Martin came to her house.[35]
[60]
Mr Whittaker raises the fabricated email with CEO Mr Cronin
[61]
[75] Mr Whittaker testified that on about 21 February 2017 Mrs Roberson gave him a copy of the fabricated email. He testified that about a week earlier he had been stopped in the street and told of the email by Charlie Martin. He also testified that about a week earlier there had been a meeting between him, Mrs Roberson and Ms Jerome about how to assist Mrs Roberson in defending Council's debt claim against her business.
[76] Mr Whittaker, who was called as a witness by Mrs Habermann, testified that having come into possession of a copy of the email, he contacted Council CEO Tim Cronin, asking to meet with him about it. Mr Cronin met him at Gungarde's offices in the early afternoon of 23 February 2017. Mr Whittaker gave Cronin a copy of the fabricated email. Mr Whittaker, who had been disappointed by Council in many of his dealings with it, thought the email was genuine and expressed his anger. Mr Whittaker asked Mr Cronin why he had not contacted him about the email's content but Mr Cronin would not give him a substantive response.
[77] On Mr Whittaker's account Mr Cronin said nothing as to whether the email was real and the meeting ended without Mr Cronin proffering any explanation or saying what would happen next. Mr Cronin, who was also called as a witness by Mrs Habermann, testified that he undertook to Mr Whittaker to look into and review the email. Mr Whittaker testified that, although Mr Cronin did not actually say he would get back to him, he expected he would do so.
[78] In leading cross-examination by Council's barrister, it was optimistically put to Mr Cronin that at the time of the meeting with Mr Whittaker he did not have the impression Whittaker expected him to get back to him, and responded, 'Look, I don't believe so. But I'm testing my memory, there'. I reject that evidence.
[79] Mr Cronin's conduct was obviously intended to reassure Mr Whittaker, indeed it was he who attended upon Mr Whittaker. Mr Cronin testified that at the meeting he undertook to Mr Whittaker to look into and review the email. His undertaking carried the obvious implication that Council would investigate the email. It inevitably raised an expectation that Mr Cronin would get back to Mr Whittaker about the investigation of the fabricated email.
[80] Mr Cronin knew Mr Whittaker was named in the fabricated email. He knew Mr Whittaker was CEO of the substantial local aboriginal corporation which the fabricated email implied had been conspired against by Council in a deceitful and racist scheme. He knew Mr Whittaker was also President of the Cook Shire Residents and Ratepayers Association, which had exhibited a willingness to broadcast its criticism of Council. Mr Cronin also knew, as he testified, that if the email became public it was clear it would be 'quite devasting'.
[62]
[85] During the afternoon of 23 February 2017 Mr Cronin telephoned Mrs Habermann, telling her he had met with Mr Whittaker of Gungarde. Mr Cronin could not recall whether he had such a conversation with Mrs Habermann. I accept he did. Mrs Habermann's recollection of what she was told in that call by Mr Cronin of the meeting was vague. She testified she understood from Mr Cronin that he had 'sorted it out'. Mrs Habermann assumed from what she was told by Mr Cronin that he must have explained to Mr Whittaker that the email was not in Council's system and explained what type of person she in fact was.
[86] The probability is that Mr Cronin was vague in the detail of what he told Mrs Habermann but that what he said was calculated at re-assuring her and leading her to believe he had dealt in some satisfactory way with Mr Whittaker.
[87] In addition to believing there had been a satisfactory outcome to the meeting, Mrs Habermann also perceived Mr Whittaker had been honourable in approaching Mr Cronin regarding the fabricated email, because there were otherwise 'any number of options for splashing it far and wide'. Accordingly, following the call from Mr Cronin, she telephoned Mr Whittaker in an upset state and thanked him for his discretion in going to Mr Cronin directly.
[88] Mr Whittaker, who at this point still thought the email was genuine, wrongly took Mrs Habermann's conduct to be an admission that it was. He would soon have been disabused of that false impression if Council had soon reverted to him as expected. Because Council failed to do that, Mr Whittaker's false impression persisted.
[63]
Mrs Habermann provides a persuasive analysis of the falsity of the fabricated email
[64]
[89] Later on 23 February 2017 at 6.59pm Mrs Habermann sent an email to Tim Cronin, cc'g Narelle Dukes and Samantha Taylor, subject 'Document 49 & 49A - Preliminary Response - Denial of Allegation - Further'.[36] She had been drafting the email through the course of the day after having received a copy of the fabricated email and its associated email chain that morning from Mr Cronin. Mrs Habermann denied she had written the fabricated email and attached a statutory declaration to like effect.
[90] In Mrs Habermann's email of 23 February 2017 at 6.59pm she also explained the document at issue had been fabricated and the original email needed to be produced so the metadata could be analysed. She observed that as the email was never sent there would be no email nor metadata to support its existence. She noted the existence of an internal email sent by her on the afternoon of Friday, 13 September 2013 - the halt on follow up email to Anne Kelly and Kirstin Fletcher of Council's rates and arrears section. She highlighted that email had demonstrated a sympathetic attitude towards Cayman Cruises, requesting that further debt collection action be put on hold until the matter was put before Council. She also added to what had previously been said in her email to Council on 14 September 2016 following Charlie Martin's initial communication with her, by emphasising the implausibility of the implication she was racist having regard to the nature of her Master's thesis.
[91] Mrs Habermann's email identified discrepancies in document 49A indicative of fabrication, namely:
[65]
Discrepancy 1: The entries against 'From' and 'To' in 49A's copies of purported internal Council email used full email addresses yet emails sent within Council only offer the sender/recipient name against 'From' and 'To', not their full email address.
[66]
Discrepancy 2: Spacing between the 'From' field and her email address was inconsistent as between a genuine Council email and the alleged email.
[67]
Discrepancy 3: The alleged email header's layout is in italics but the header in a genuine Council email is not.
[68]
Discrepancy 4: The alleged email uses a header 'Date' whereas Council's email's use the header 'Sent'.
[69]
Discrepancy 5: The alleged email's sent date content format is different from that of Council's emails.
[70]
Discrepancy 6: The alleged email's heading sequence is different from that of Council's emails.[37]
[71]
[92] Mrs Habermann's email also demonstrated that the metadata associated with attachment 49A, containing the fabricated email, showed it was created by an author called 'Roberson family' on 5 July 2016. A screenshot of that data was included. Such data was consistent with it having come into existence some months before Charlie Martin's first conversation with Mrs Habermann about its existence back in September 2016.
[72]
Mrs Habermann asks for an independent IT expert to be engaged
[73]
[93] Mrs Habermann's email noted there was not the appropriate skillset in-house to deal with the matter and asked that 'an independent IT consultant who specialises in data retrieval be appointed to go back through our systems to establish which emails were in my account and the email accounts' of others. This echoed her less specific request of 14 September 2016 that the content of any email she had sent on 13th and 16th September 2013 be established.
[94] It is not as if Council needed to be prompted by Mrs Habermann's request to engage an independent IT expert. What was requested was an obvious step to take, in the interests of both Council and Mrs Habermann, now that Council had a copy of the fabricated email and its allegedly associated emails. It is well known that even deleted emails remain detectable. Examination of Council's email system by an IT expert could quickly ascertain whether the fabricated email was within it and thus readily demonstrate whether it was genuine or a fabrication. It would also do so credibly, by reason of the expert's independence from Council and expertise in information technology.
[74]
I will do my best to continue working whilst this matter is dealt with. The email itself is shattering: I have trouble reading it, let alone believing it could be used in legal proceedings. The concept that this document is circulating in the community that I have chosen to call home is very difficult to cope with. Basically the whole thing is horrible. Particularly the wording of the pdf submitted. But, I didn't write it and could never conceive of putting something like that to paper. For this I am grateful.
[75]
I look forward to your active support in this matter and thank you for your time so far. (emphasis added)
[76]
[96] Such language made it obvious Mrs Habermann was adversely affected by what had occurred.
[77]
Mrs Habermann submits WH&S Incident Forms for a 'psychological' incident
[78]
[97] Mrs Habermann's email of 23 February 2017 also attached two incident report forms. One was in respect of the email she received forwarded by CEO Cronin 'whereby an allegation was made that I wrote and sent an email to ex-CEO Steven Wilton containing racial slurs with reference to (I believe) Gungarde'. The other incident report form referred to the attendance by ex-Councillor Charlie Martin at her home. Each incident report form ticked the type of incident as being 'Other psychological'.
[98] The form describing Charlie Martin's visit ended, "In the end I walked rapidly away, burst into tears, told him he had to go, and walked inside'. Mr Cronin testified, when that entry was raised with him in evidence, that Mrs Habermann had been greatly distressed by the email and Mr Martin's presence and insistence exacerbated that.
[99] The pro forma content of the incident report forms included at their beginning the words, 'Completed forms are to be forwarded to the WHSA'.
[100] Later on 23 February 2017 at 7.29pm the incident report forms were forwarded by Mrs Habermann with an array of other attachments, including Mrs Habermann's email response of the preceding day, to Human Resources Manager Tracey Boulton, Mayor Peter Scott and Council's Workplace Health and Safety Contractor Paul Gear, cc'g Tim Cronin, saying:
[79]
Tracey, Peter, with reference to conversation with Tim.
[80]
Mrs Habermann testified the effect of a related conversation with Mr Cronin was that the information needed to go to Human Resources and Workplace Health and Safety. Mr Cronin testified the forms would have gone to Mr Gear as a matter of course.
[81]
[101] There is no evidence the receipt of the incident report forms triggered any particular workplace health and safety process or response. Yet, the ticking of the 'Other psychological' box was obviously an indication to Council that the events had the potential to have an adverse psychological impact upon Mrs Habermann. That indication was reinforced by the above-quoted closing words of Mrs Habermann's email of 6.59pm. It was also reinforced by Council's awareness of the obvious point that to any reputable employee it would be disturbing to know they had been malevolently targeted by the creation and propagation of a fabricated email depicting them as racist and engaged in a deceitful misuse of their position.
[82]
Council engages an independent investigator who is not an IT expert
[83]
[102] At some stage after 23 February 2017 Council engaged LGAQ Total Solutions, Mr Greg Newman, to investigate the fabricated email and provide a report.
[103] The evidence is unclear as to whether Mr Newman's engagement occurred before or after the settlement conference of 28 February 2017.
[104] Mr Cronin testified the decision to engage Mr Newman was made by Tracey Boulton, Council's Human Resources Manager. He agreed Mr Newman would not be categorised as an IT specialist and, when asked if he raised that point at any time, responded:
[84]
Yeah. Absolutely. I did have that conversation with Tracey saying, you know, "Why did you appoint Greg?" I would have expected someone with more of an IT background but given the fact that Greg was appointed and had commenced work we proceeded with his review.
[85]
[105] Ms Boulton on the other hand testified she believed it was Mr Cronin who made the decision and had no recollection of being involved in the decision of who to engage.
[106] Mr Newman was independent; in that he was evidently an employee of the Local Government Association of Queensland. However, he was not an information technology expert. It has not been explained why Council did not engage an independent IT expert to investigate the provenance of the fabricated email and the associated email trail provided by Mrs Roberson.
[86]
At the settlement conference Council undertakes to provide its independent report
[87]
[107] On 28 February 2017 Council's solicitor, Mr Cronin, Mrs Roberson and her support person Ms Toni Leigh, attended a settlement conference in the debt proceedings.
[108] The case did not settle. Mr Cronin recalled they expressed concerns at the conference about the authenticity of the fabricated email. Council indicated it would investigate the email dated 13 September 2013 (the fabricated email). The parties resolved at the conference that, before 28 March 2017, Council would provide Mrs Roberson with the findings of its investigations into the email dated 13 September 2013 (the fabricated email) and Mrs Roberson would provide Council with the source code verifying that email.[39]
[109] On 1 March 2017 Roberson emailed Council's solicitors, referring to it having been resolved at the settlement conference that Council would provide the report from Council's independent person investigating the legitimacy of the fabricated email.[40] Regrettably, Council failed to provide Mrs Roberson with its investigation's findings until many months later, by which time Mrs Habermann had suffered her injury. That inaction is a significant feature of the case.
[88]
Ms Leigh knew of the fabricated email's deployment and Council's undertaking
[89]
[110] It is significant to understanding the causal path to the eventual tabling of the fabricated email in Parliament that Ms Leigh was by this point acting as Mrs Roberson's assistant in the case. She had been assisting Mrs Roberson since Mrs Roberson had asked the Cook Shire Residents and Ratepayers Association for assistance with her debt case in January 2017.
[111] Ms Leigh was the Association's secretary. She blamed Council's Mayor for the fact her husband's contract with Council had not been renewed. She was, on Mr Cronin's account, a prolific contributor to the Association's Facebook page. Ms Leigh testified her involvement in the Association at that time was highly active and that the relationship between the Association and Council was highly toxic.
[112] On Ms Leigh's account she had first been told of the existence of the fabricated email in late 2016, by Ms Jerome, who told her she had found it in an email which had been sent to Mrs Roberson. She saw the fabricated email and was aware it had been deployed in the debt case because Mrs Roberson gave her a copy of it and other documents related to the debt claim after Ms Leigh had become involved in helping her. It was Ms Leigh who advised Mrs Roberson to show the fabricated email to Mr Whittaker earlier in February. Further, Ms Leigh was present at the settlement conference at which it was discussed. Indeed, on her recollection of the conference Mrs Roberson had kept bringing up the fabricated email as 'central' to the debt issue.
[113] Because Ms Leigh was at the conference, she was well aware of the undertaking Council gave at the conference to provide Mrs Roberson with the findings of its investigation into the fabricated email. Council therefore knew Ms Leigh, the secretary of an association which was Council's nemesis, was helping Mrs Roberson in her debt case. It knew she was aware of the content of the email deployed in that case and was aware Council had undertaken to investigate its legitimacy and report back its findings to Mrs Roberson by 28 March 2017.
[114] To this point it appeared only a small set of connected people knew of the fabricated email. Its content had not been broadcast to the community more generally. But Council had to have known there was a substantial risk of that occurring if it failed to revert to Mrs Roberson about its investigation outcome as promised. That risk was made even more obvious by the fact Ms Leigh was assisting Mrs Roberson in the case in which the fabricated email had been deployed.
[90]
Roberson forwarded the purported email trail and source code
[91]
[115] On 2 March 2017 at 7.50am Mrs Roberson sent an email to Samantha Taylor, Council's solicitor in the debt claim, including a purported email trail beneath it which she asserted was 'the original email as it was forwarded to me'. The email annexed the purported source codes and a document headed 'The Messages'.
[116] Later that morning, solicitor Ms Taylor emailed Narelle Dukes and Tim Cronin, referring to a conversation she had with Mr Cronin after the settlement conference two days earlier on 28 February 2017. She noted that since the settlement conference two emails had been received from Mrs Roberson, one of which purportedly enclosed the source code for the questioned email. Ms Taylor recommended to Mr Cronin that he have his 'independent investigator look into it and provide his/her view on it'.[41]
[92]
The purported email trail and source code makes it even more apparent the email was fabricated
[93]
[117] The attached purported source code was headed 'Message source from copied direct from Outlook'. While a lengthy document, it only referred to one email and it was not the fabricated email. The email to which the source codes related was an email from Cooktown Cruises Roberson to Lyle Roberson and Kym Jerome on the subject 'FW: Meeting', sent 'Tue, 28 Jun 2016 05:12:57+0000'.[42]
[118] It is that email which commenced the reverse chronological chain of emails appearing in the annexure 'The Messages',[43] though a different email commenced the chain in Mrs Roberson's covering letter. The balance of the purported email chain in both was the same.
[119] The purported reverse chronological order email trail provided to Ms Taylor by Mrs Roberson in the annexure 'The Messages' contained seven supposed emails. While in reverse chronological order, these reasons will refer to them as email 1, email 2, etc.. They were:
[94]
Email 1: From Cooktown Cruises Roberson; sent Tuesday 28 June 2016 5:12:57 AM UTC; to Lyle Roberson, Kym Jerome; subject 'Fw: Meeting'. There was no message content. However, the opening email in the purported email trail in Mrs Roberson's covering letter was a different email (oddity 1). It was, 'From Cooktown Cruises Roberson; sent Saturday 25 February 2017 2.46am; to Lyle Roberson; subject 'FW: Meeting'.'
[95]
Email 2: From Penny Johnson (at Council);[44] sent Tuesday, 15 July 2014 6.33am; to Cooktown Cruises Roberson; subject 'Re: Meeting ...'. The message content was: 'FYI'.
[96]
Email 3: From Penny Johnson (at Council - i.e. the Deputy Mayor); sent Tuesday 15 July 2014 6.23am; to Cooktown Cruises Roberson and Cooktown Shire Council, cc P Scott, R Bowman, K Price, A Wilson, Steve Wilton and Bob Norris (all at Council - i.e. Mayor Scott, Councillors, CEO Wilton, CEO assistant Norris); subject 'Re: Waterfront leases again ...'. The message content was:
[97]
Many thanks - I have received both cc'd emails with letter attached.
[98]
My apologies for not responding sooner - wifi issues were finally resolved yesterday
[99]
Email 4: From Cooktown Cruises' Roberson; sent Tuesday 15 July 2014 3.56pm; to Cook Shire Council, cc P Scott, P Johnson, R Bowman, K Price, G Shephard, A Wilson (all at Council), subject: Re: Waterfront leases again ...'. The message content was:
[100]
Please acknowledge that you've received my email.
[101]
The letter below, to the CEO, is the same as the document attached to the original email.
[102]
On Friday the 4th July I hand delivered a copy of this for the CEO. I would like to receive an acknowledgment for receipt of that as well.'
[103]
There was no letter below prior to the commencement of email 5 (oddity 2).
[104]
Email 5: From Cooktown Cruises; to 'mail@cook.qld.gov.au', cc P Scott, P Johnson, R Bowman, S Clark, K Price, G Shephard, A Wilson (all at Council); subject 'Waterfront leases'; date Fri, 11 Jul 2014 02:30:43+0000. Unlike the preceding emails, email 5 did not follow the heading 'From:' with the heading 'Sent:'. Instead under 'Subject' heading there appeared the additional heading, 'Date:' (oddity 3).
[105]
The message content was, 'The above attachment is a copy of the letter below.' However, there was no reference in the email headers to 'Attachments' (oddity 4). After that message content there appears what, at first, seems to an image of a conventionally styled letter but it does not end as a conventionally styled letter and contains no image of any signature by the author. It merely ends in the style of an email (oddity 5), with:
[106]
Further, those ending words are inset from the margin setting of the above words of the purported letter.
[107]
The purported letter from Mrs Roberson, was dated 3 July 2014 and addressed to Mr Wilton, CEO of Cook Shire Council at Council's mail address. It contained a subject heading 'Re: Waterfront lease and rates assessment number: 10025617'. The ensuing content referred to her business's need for either Mr Wilton or Council to provide it with correspondence stating Council will be tolerant of negotiations for a new lease over the property in the context of the business's hardship and its endeavours to sell the property. It sought a response by the end of the month.
[108]
Email 6: Date Mon 16 Sep 3013 15:20:52+1000; from S Wilton (at Council); to B Norris (at Council); subject 'Re: Meeting'. Notably and unlike any of the previous email headings, this email's heading content was in italic typeset (oddity 6). There was no reference to a heading 'Sent'. Instead, it was the heading 'Date', located at the top of the series of headings, whereas it appeared at the base of the headings in email 5 (oddity 7). There was no message content.
[109]
Email 7 (the fabricated email): Date Fri, 13 Sep 2013 16:39:57+1000; from L Habermann (at Council); to S Wilton (at Council); subject 'Meeting'. This email's headings were also configured in italics (oddity 8) and it used the heading 'Date' rather than 'Sent' and put it first in the heading sequence (oddity 9). The message content was the fabricated email's content quoted earlier in these reasons.[45]
[110]
[120] Some of the above nine oddities were identified in the six discrepancies identified by Mrs Habermann in her email to Council back on 23 February 2017. Oddities, 1, 2, 4 and 5 were not. Adding those four to Mrs Habermann's six discrepancies takes the count of identifiable discrepancies on the face of the document and its associated email trail to a total of 10. It is inconceivable that all of them have innocent technological explanations.
[121] On its face the email chain Mrs Roberson provided to Council's solicitor had so many discrepancies as to indicate, even without searching Council's server, that it was likely an amalgam of genuine parts of past emails and fabricated content. For example, email 3, was in Council's database and provided a potentially credible foundation to co-opt amidst the fabrication. However, it defies belief, if the fabricated email had been within that communication chain, that Mrs Roberson and all of the people she emailed at Council, from the Mayor down, could have missed such a controversial email at the time. That circumstance adds to an already long and compelling list of circumstances demonstrating the falsity of the fabricated email.
[111]
[122] At some point between 23 February 2017 and the morning of 2 March 2017 Mrs Habermann spoke with solicitor Mal Skipworth of Preston Law. Mr Skipworth regularly acted as Council's legal advisor and Mrs Habermann interacted regularly with him about governance issues (a different firm, Forbes Dowling Lawyers and its Samantha Taylor, was acting for Council in the Debt Claim). Because Mrs Habermann had confidence in Mr Skipworth she spoke informally with him in this instance about the topic of the fabricated email. She later summarised the effect of that conversation in an email sent on 2 March 2017 at 9.16pm to CEO Tim Cronin, cc'd to Peter Scott, Narelle Dukes, Paul Gear and Tracey Boulton.[46]
[123] Mrs Habermann's email explained Mr Skipworth made suggestions but refrained from offering advice. It explained that Mr Skipworth suggested she had drawn 'the short straw on this one', that they let the debt collection process play out and that if anything further occurred, they should revisit the matter then, particularly 'if the email somehow finds its way online, into the media etc.' Mrs Habermann's email concluded:
[112]
I am happy with this. It consumes no further resources, it wastes no more of Council's time. It does not relate to the debt collection process. And, whilst initially distressing, in the scheme of things, the content of an unsubstantiated pdf is of little consequence.
[113]
Thank you for your support yesterday. I really appreciated how you handled the situation.
[114]
When you have a chance, it would be good to know how the settlement meeting went.
[115]
[124] Mrs Habermann testified of her closing request to be told of how the settlement meeting went, that she wanted to know what had happened with the documents at the meeting, believing it would 'close the loop'. Such a belief or hope presumably derived from an expectation Council would have debunked the fabricated email at the meeting.
[125] On a superficial view Mrs Habermann's outwardly stoic comments about Mr Skipworth's suggested wait and see approach might be seen as having diminished the need for Council to take any further steps in the exercise of its duty of care towards Mrs Habermann. However, it was not for Mrs Habermann, who did not even know what had occurred at the settlement conference, to advise Council in the proper exercise of its duty of care towards her. Further, the risk of the email being further promulgated in the community, with further adverse impact on Mrs Habermann, was ongoing. Doing nothing, unless and until the risk manifested, would be a novel way of purportedly taking care to avoid foreseeable risk.
[116]
Mrs Roberson's reminder she is waiting for Council's findings
[117]
[126] On 15 March 2017 Mrs Roberson emailed Samantha Taylor, noting amongst other things:
[118]
1. The email in question was sent to you on 01/03/2017 along with a PDF document of the source code. What I sent you is, I believe, sufficient for a competent expert.
Mrs Habermann is told the report exonerates her, yet she is not given it
[121]
[127] A report headed 'Assessment of Email Records', was provided to Cook Shire Council by Greg Newman, 'Senior Advisor Workforce, LGAQ Total Solutions'. The report was dated 22 March 2017. There is no evidence of exactly when it was received by Council but it was likely on or within several days of that date. It will be recalled Council was on a promise to provide its investigation report to Mrs Roberson by 28 March 2017. It did not do so.
[128] Mrs Habermann recalled that, within what she understood to be a few weeks of the report's receipt, Mr Cronin had told her the report found the fabricated email was not in the Council's system. However, he did not give her a copy of the report, despite her requesting it from him a number of times (she testified she nagged him for it). It was not provided to her until many months later, on 17 August, which was after the damage was done.
[122]
The report persuasively demonstrates the email is fabricated but expresses its conclusions obscurely
[123]
[129] Mr Newman's report explained he had been assisted by Council Information Technology Officer, Armaud Gougeon, in searching Council's relevant databases. That was its archived email files and so-called TRIM record management system, which allows the controlling and tracking of the creation, use, modification and disposal of Council's electronic documents. It was thus possible to ascertain whether any of the emails in the email trail forwarded by Mrs Roberson had ever been sent to or received from Council email addresses.
[130] These reasons earlier assigned numbers to the emails in the email trail forwarded by Mrs Roberson. Mr Newman's focus in concert with Mr Gougeon, was particularly upon emails 6 and 7 (the fabricated email), because of discrepancies on their face. Neither were found in Council databases. While the report did not apply the same focus to the existence of all of the other alleged emails in the trail, its content makes it clear email 2 was not found in Council databases either.
[131] The report noted how the time stamps of the fabricated email and the authentic email were effectively the same, which is inconsistent with both emails being genuine. Its conclusions included:
[124]
4. There is no information that was available to support how two emails authored by the same person to different recipients could be time stamped identically.
[125]
5. The emailed documents provided by Captain Cook Cruises contains an email from SWilton@cook.qld.gov.au (Stephen Wilton) to BNorris@cook.qld.gov.au (Bob Norris) dated 16 September 2013 date stamped 15:20:52. This email cannot be located in any folders of the email archives of Bob Norris or Stephen Wilton.
[126]
6. Questions were raised about the email from Wilton to Norris dated 16 September 2013 and Habermann to Wilton dated 13 September 2013 as presented by Captain Cook Cruises when observed on line as these emails presented differently from other emails in that the Back/Forward Buttons do not appear. This anomaly could not be explained and requires further investigation.
[127]
7. In addition to the observations made in 6 above both these emails were written in italics, which is unique from other emails written by Wilton and Haberman. They also appear to be written in a different font from other emails written by these authors.
[128]
8. The metadata supplied on behalf of Captain Cook Cruises at the back of the document were stated by Gougeon as only applying to the first email and does not refer to the emails authored on 13 and 16 September 2013.
[129]
9. No explanation for the difference in the two emails sent on 13 September 2013 at 15:39:57 from Habermann is available, but even if two emails were sent it is almost inconceivable that time would be the same. The email dated 13 September 2013 sent to Cooktown Cruises is a TRIM record.
[130]
10. Based upon the information presented above no absolute conclusions can be reached. However, on the basis of balance of probabilities there seems to be a legitimate basis to question integrity of the emails presented on behalf of Captain Cook Cruises dated 13 September 2013 and 16 September 2013.
[131]
11. The integrity of the Cook Shire Council email archives and TRIM data seems sound and no basis exists that points to a lack of integrity of this data.
[132]
12. It is therefore concluded that Council needs to pursue further the basis of the anomaly between the two emails dated 13 September 2013.[48]
[133]
[132] To remove doubt, the above references to Captain Cook Cruises are an obvious proofing error. The body of the report referred correctly to Cayman Cruises and its business Cooktown Cruises but Mr Newman lapsed into describing the business as Captain Cook Cruises in his conclusions.
[133] The report's conclusions were worded in an obscurely conservative way, adopting language such as 'no absolute conclusions can be reached', 'there seems to be a legitimate basis to question integrity' and 'Council needs to pursue further the basis of the anomaly'. However, it is obvious from the earlier content of the report that the fabricated email had never existed within Council's databases. Because the fabricated email purports to be an internal Council email it therefore has to have been a fabrication. Mr Newman's reference to further pursuit of that fact, which he politely described as pursuit of the basis of the anomaly, was therefore a poorly expressed reference to pursuit of the circumstance that the email was fabricated by persons external to Council.
[134] The report's obscure expression of its conclusion would have been obvious to Council. As would the fact the report was not from an IT expert. Council's awareness of those shortcomings likely explains why it did not disclose the report to Mrs Roberson, or Mr Whittaker for that matter. But it does not explain why Council did not take the remedial step of procuring a report from an IT expert.
[134]
Council decides not to follow up with a report from an IT expert
[135]
[135] Mr Cronin testified Mr Newman's report was provided to all Councillors and discussed by them at a meeting. He testified there were some Councillors who considered they could not rely on the report and some were convinced the email was something which Mrs Habermann would have written. If that evidence is correct, it is a disturbing indication of the power of seeing something in writing. Not a sceric of other evidence in this case suggested there was any basis to believe Mrs Habermann was remotely likely to be racist or to be other than scrupulously professional in the impartial application of the governance requirements binding Council.
[136] Mr Cronin asserted his preferred course of action was to engage an IT specialist to come in and do an additional review. He testified he raised taking that action at the meeting, but the Councillors 'chose not to go down that path'.
[137] Just how clear and emphatic Mr Cronin was in raising that preference is unknown. In any event, Council's corporate ambivalence towards getting to the bottom of the matter is bizarre given how serious it was. It was either very serious that its employee had engaged in such racist and deceitful conduct (apparently in cahoots with a former CEO) or very serious that someone had targeted its employee with such a malicious fabrication.
How was the tabling in Parliament a necessary cause of Mrs Habermann's injury?
[136]
[138] Mr Newman's report was not provided to Mr Whittaker. Nor was Mr Newman's report provided to Mrs Roberson, despite Council having undertaken at the settlement conference to do just that on its receipt.
[139] Mr Cronin's only explanation for Council not honouring its undertaking to provide the report was that the undertaking was conditional upon receiving the original email source code. There is no evidence there was any condition to that effect, nor any evidence that Council claimed there was at the time. The evidence is that each party undertook to do what they said they would do.
[140] Mr Cronin's explanation had the ring of hindsight justification about it. Such source code as had been provided was not in respect of the fabricated email. Mrs Roberson's inability to provide a source code demonstrating the email was genuine had the effect of supporting the conclusion the email was a fabrication. It did not disadvantage Council. Indeed, it should have advantaged Council to have followed through on what it had said it would do, by disclosing its investigation report. Choosing not to do so makes no sense unless Council was conscious the state of its own promised material - an obscurely concluded investigation report by a non-IT expert - was not as persuasive as the foreshadowed investigation report should have been in demonstrating the email was fabricated.
[141] When asked why he did not get back to Mr Whittaker in relation to the fabricated email, Mr Cronin was obviously unable to provide any actual recollection of a reason. He posited as a probable reason, that it was because Cayman Cruises had not provided the original email and source code, meaning they could not do a full investigation and Mr Newman's report had only gone as far as ascertaining the email was not present in any of Council's email systems. I reject that explanation. It lacks logic because the fact the email was not present in any of Council's email systems had to have meant the email was fabricated. Again, the probability is that Council was conscious its obscurely concluded investigation report by a non-IT expert was not as clear as may be.
[142] Under the lifeline of a leading question in cross-examination suggesting privacy considerations may have precluded the report's release, Mr Cronin testified he would not think it appropriate to release a report in relation to an investigation of an employee to a member of the public. I do not accept that consideration was a factor behind Council's choice to not provide the report to Mr Roberson, or Mr Whittaker for that matter. There is no logical reason why it would have been. That is because Council already knew both of them had copies of the fabricated email and had communicated with Council about it. They were the very members of the public which Council should have been interested in demonstrating the falsity of the fabricated email to. Indeed, Council's conduct had left both with an expectation of further substantive communication from Council about the fabricated email.
[137]
Mrs Roberson makes a statement deploying the fabricated email
[138]
[144] It was Mrs Roberson who lost patience first, signing a statement on 7 July 2017 statement headed, 'Statement: Release of file documents in the matter of Cook Shire Council -v- Cayman Cruises P/L (Cairns Magistrates Court No 0050156 of 2015'.
[145] That development is informed by some before and after context. In the wake of Council's failure to provide her with the promised results of its investigation of the email Ms Leigh had repeatedly encouraged Mrs Roberson to keep contacting Council's lawyers in the debt case asking where the promised results were. She was irritated that Mrs Roberson was being 'fobbed off'. She testified to at first asking Mr Whittaker to contact their local member of State parliament, Mr Gordon.
[146] In due course, on 12 July 2017, Ms Leigh met with the member for Cairns, Mr Pyne, providing him with some documents, as examples of alleged maladministration, including the fabricated email.
[147] Five days earlier, on 7 July 2017, Mrs Roberson signed her statement about release of file documents in her debt case. That statement asserted she had, on 23 January 2017, written to the Cook Shire Residents and Ratepayers Association seeking Toni Leigh's assistance in the case. Mrs Roberson's statement noted the meeting was held at Gungarde on 14 February 2017 at which she, Toni Leigh, Kym Jerome & Greg Whittaker were present. The letter noted Toni Leigh was given the court file of documents at that meeting and had not had access prior to then. It also noted Mrs Roberson had given Ms Leigh's husband access to her court file to respond to allegations against him. In this context, her statement noted he 'has been suspended from Council in relation to the Title Search in my Court file and accused of computer hacking and misuse'. Mrs Roberson's statement also noted that prior to 14 February 2017 Kym Jerome had access to documents 'as she was assisting to gather relevant information'. It asserted:
[139]
Subsequent to 14 February 2017, an email (appendix A) sent from Lana Habermann on 13 September 2013 to various Council persons and the source codes for this email were given to Greg Whittaker.[49]
[140]
[148] Mrs Roberson testified she was not involved in the provision of material for tabling in Parliament, which is apparently true in the sense it was Ms Leigh who supplied the documents to Mr Pyne. However, the timing and content of the statement reveals it was likely created to validate Ms Leigh's possession of documents, including the fabricated email, which she then provided to Mr Pyne. There was no other apparent reason for Mrs Roberson to provide such a statement. Its provision is matched by Mr Whittaker's later provision of a statement to Ms Leigh before she then equipped Mr Pyne with material for the second tabling.
[141]
[149] On 9 August 2017 in the Queensland Legislative Assembly, Mr Pyne MP, tabled a document titled 'Call for Cook Shire Council to be placed into administration'. The allegations contained therein included an allegation in respect of '[redacted] Cruises' that Council had colluded to destroy the livelihood of the business' director and that the Mayor, Deputy Mayor and all Councillors in 2014 saw an email from a Council officer to the CEO. The document then fully quoted the fabricated email with some redactions.
[150] While there were some redactions of names, the document nonetheless identified the fabricated email's author as Council's Business Services Manager and noted that she had been promoted to Risk and Governance Manager.[50] Mrs Habermann was thus readily identifiable as the email's alleged author despite the redactions.
[142]
[151] That same day CEO Cronin's Executive Assistant Narelle Dukes contacted Mrs Habermann and advised her to look at the Cook Shire Residents and Ratepayers Facebook page. A former Council employee contacted her to similar effect, saying 'They're really getting stuck into you now'.
[152] Mrs Habermann checked the association's Facebook page which contained a link to the document tabled in Parliament that day. She clicked on the link and saw a copy of what Mr Pyne MP had tabled.
[153] Up until then, while Mrs Habermann had earlier been distressed, her mental well-being had not been clinically impaired by her knowledge of the fabricated email and its apparently limited promulgation.
[154] As discussed later in these reasons, Mr Habermann had long lived with the fluctuating effects of anxiety and depression. However, those conditions had not impaired her work capacity or performance. To the contrary the evidence shows she had been an exemplary employee. Moreover, the evidence of her medical consultations earlier in 2017 did not suggest any material aggravation of her mental health because of her knowledge of the fabricated email and the confined use to which she understood it had been put.
[155] Her understanding, based on what Mr Cronin had told her, was that Mr Whittaker had accepted the email was fabricated and Mr Newman's report had confirmed the email was fabricated. She had been told nothing to suggest anything further had been made of the fabricated email in the debt claim. However, the public promulgation of the email by, and in consequence of, its tabling in Parliament had a devastating impact on her.
[156] Mrs Habermann testified of the impact of reading of the document's tabling:
[143]
Everything's gone. Just everything didn't exist anymore. I didn't know what to do. It just is - I was like I was in this massive echoey chamber with the walls pushing into my head and I - they just taken - they took my life. They did take - they took my life. They took what I was - what I'd studied for and the person that I was in the community. It - I - I felt violently ill and John was not awake and I - they just turned me into a different person.
[144]
[157] Mrs Habermann went on to testify that she looked up whether it was possible to take a document out of Parliament and discovered it was not. She described setting about trying to write down what needed to happen, which she perceived would include the need for her and her husband to be stood down from work.
[158] She sat up all night drafting an email, at one point accidentally sending it in draft form to Tim Cronin and Tracey Boulton at 1.13 am on 10 August 2017.[51]
[159] Then, at 4.22 am on 10 August Mrs Habermann sent an email beginning 'Dear Tim' but addressed to Tim Cronin, Tracey Boulton, Mal Skipworth, John Habermann, and cc'd to her psychologist Lindsay. The email noted and requested various things, contemplating, in obviously confused thinking, that she should be suspended pending further investigation. Doubtless contributing to that confused thinking was the fact she had never been given Mr Newman's report. Her email asked that:
[145]
I receive a copy of the report from the investigation into the authenticity of the email when we first looked at the matter. I have asked for it previously and you have indicated I would be offered a copy in a letter of support clearing me (to the extent stated in the investigation report). This has not happened. I need it to happen now.[52]
[146]
[160] Mr Skipworth subsequently suggested to her she should not be telling the CEO what to do. Consequently, on 10 August 2017 at 10.55am she emailed Tim Cronin, cc'g Tracey Boulton & Mal Skipworth, referring to attached emails she had earlier sent. She wrote:
[147]
I respectfully ask that you allow me to withdraw the attached emails. I ask that no further action be taken, based on my communication contained within the emails received by you, sent by myself and attached.
[148]
I respectfully ask that I be granted leave of absence from work until Monday of next week: August 14, 2017. I ask that I be excused from further discussion with reference to the matter until I return to work.[53]
[149]
[161] Ms Boulton testified Mrs Habermann was extremely distressed, speaking to her of it being 'a global humiliation that was permanently on the record that could never be undone with no substantiation and no right to reply'. Ms Boulton observed, while she was no medical practitioner, it appeared Mrs Habermann 'had a nervous breakdown.'
[162] Mr Habermann testified to awaking on the morning of 10 August to discover Mrs Habermann was just floating in the bath, repeatedly saying, 'It's over'. She was not being clear or coherent and he struggled to discover what had happened.
[150]
[163] On 10 August 2017 at 3.34pm CEO Tim Cronin sent an email to all Council staff, cc'g Councillors, subject 'Rob Pyne MP "Call for Cook Shire Council to be placed under administration 8/2017" continuing claims submitted under Parliamentary privilege'. The email referred to a staff briefing that morning. It attached the documents tabled by Mr Pyne.[54]
[164] Mr Cronin's email noted that the allegations made in Mr Pyne's use of Parliamentary privilege were without foundation. Of the email allegedly sent by Mrs Habermann, Mr Cronin's email wrote:
[151]
This came to my attention in March 2017 as part of a court mediation. I initiated an independent investigation immediately. The investigation found that an email sent at the same time and date but with significantly different content. There is no email with this content on our servers. I can only conclude that the email presented in the attached document has been fabricated.
[152]
[165] On 10 August 2017 Council issued a media release, noting Mr Pyne had not done Council the courtesy of a phone call to check the information he had been given. The information contained in the email included Mayor Scott saying:
[153]
One of the more hurtful allegations was a fabricated email, allegedly written by a Council staff member, who was clearly identified by their job title, which was not redacted from the file. ... That email was the subject of an independent external investigation, instigated by Council, and it has been proven as a fabrication.[55]
[154]
[166] On 11 August 2017 a local general practitioner, Dr Van Der Meer, saw Mrs Habermann 'for an unrelated matter'. The doctor noted at that time Mrs Habermann briefly mentioned stress at work, making reference to a fraudulent email tabled in Parliament two days prior (9/8/17) that was allegedly written by her and contained racist comments that she advised him she had never made. At that time Dr Van Der Meer noted Mrs Habermann reported 'she was aware of the fraudulent email some months prior and that an internal investigation had been undertaken and all had been cleared'.[56] Dr Van Der Meer record suggested that although Mrs Habermann was shocked to hear of the tabling in Parliament and unsure how it would play out with her work, she appeared to still be functioning adequately as at 11 August. In point of fact the evidence shows her emotional state was in decline and continued to decline.
[167] On 16 August 2017 the Cape York newspaper published an article quoting Council's Mayor's refuting of the first tabled document, including by reference to an independent external investigation proving the email was a fabrication.[57]
[168] On 16 August 2017 at 6am Mrs Roberson sent an email to Samantha Taylor noting amongst other things that she was still waiting for Council's 'independent report on the offending email - attachment filed 49'.[58]
[169] On 17 August 2017 at 4.36pm Tim Cronin finally forwarded Mrs Habermann a copy of Mr Newman's LGAQ report of 22 March 2017.[59] A minute later he emailed all Council staff and Councillors a copy of the authentic email, noting 'it differs greatly in tone and professionalism from the tabled email'. Mr Cronin's email also noted, 'As advised, an independent review found no evidence of the email on Cook Shire Council's system and called into question the integrity of the email included in Rob Pyne's submission.'[60]
[155]
[170] On 23 August 2017 Mrs Habermann's poor emotional state caused Ms Boulton to tell her she needed to stop work. Mrs Habermann was consulted by Dr Van Der Meer later that day. Dr Van Der Meer noted it was clear Mrs Habermann was acutely distressed and no longer capable of coping with work or day to day functioning in light of the incident that had happened on 9 August 2017 (i.e. the tabling of the fabricated email).[61]
[171] After that date Mrs Habermann at first remained at home, but then reached the point where, as she put it:
[156]
I couldn't be there anymore. I couldn't - I couldn't be at home; I couldn't be at Cooktown; I couldn't be around my children. It wasn't fair, and I couldn't cope, and I packed, and when I - I packed up the car, and called John from the carpark at work, and I said, "I have to go", and - uh - I went to Elim. I went to a campground, an hour away, and stayed there for three, four weeks, because I just couldn't be - just couldn't be in Cooktown. I couldn't be around the people.
[157]
[172] While Mrs Habermann was away at the campground, Ms Boulton checked in with her from time to time to make sure she was okay. Ms Boulton described Mrs Habermann as being confused, upset, anxious, not making sense, distraught, distressed, in a way Mrs Boulton had never seen before.
[158]
Mr Whittaker makes a statement deploying the fabricated email
[159]
[173] Council's public assertions by reference to an independent external investigation that the email was a fabrication frustrated Mr Whittaker who thought 'they were trying to throw it back on us, that we fabricated it'. It will be recalled Mr Cronin had never reverted to Mr Whittaker about the email and Mr Whittaker had mistakenly taken Mrs Habermann's tearful telephone call thanking him to be an admission. To remove doubt, he was not shown Mr Newman's report by anyone until long after this time.
[174] Ms Leigh also testified she was troubled by the fact the Council's statements implied Mrs Roberson was involved in a fabrication by reference to an independent report which she 'knew for a fact' Mrs Roberson had not been given. She testified she therefore encouraged Mr Whittaker to make a statement and helped him prepare it.
[175] Mr Whittaker's ensuing statement quoted the full and unredacted content of the fabricated email, saying he was given access to it on 21 February 2017 by Mrs Roberson. Mr Whittaker's statement continued:
[160]
2. On 23 February 2017, in an early afternoon meeting convened at my request, Tim Cronin, CEO of Cook Shire Council met with me at Gungarde to discuss this email.
[161]
3. After the above meeting and at approx. 3.30pm on the same day, Lana Habermann, the business services manager, corporate services Cook Shire Council phoned me at Gungarde crying and in a distressed manner thanking me for the discreet way I was handling this email. It is my belief this Council officer was admitting authorship of the email.
[162]
4. I subsequently emailed Tim Cronin, CEO Cook Shire Council requesting an update on the above email.
[176] Mr Whittaker wrote that statement on 5 September 2017. It found its way via Toni Leigh to Rob Pyne MP, who tabled it in Parliament on 7 September 2017.
[165]
The result is aggravation of the damage already done
[166]
[177] Later that day, Ms Boulton contacted Mrs Habermann, who was still at the Elim campground, and told her not to try and get online and to wait there for her. Ms Boulton then travelled to see Mrs Habermann and showed her the second document that Mr Pyne had tabled. This development, inevitably, aggravated the psychiatric distress Mrs Habermann had been experiencing since the first tabling on 9 August 2017.
[167]
[178] On 6 December 2017 Council's solicitor in the debt claim emailed Mrs Roberson, advising:
[168]
1. Despite the fact you provided us with what you say is the original email as well as a PDF document containing the source code for the email; it is not a forwarded email and contains no source code (which should be in the email itself).
[169]
2. The source code you provided in the PDF document is of no use to our client.
[170]
3. Our client's investigations revealed that the email cannot be found on the Council's system; and cannot be found without a relevant source code; and
[171]
4. Our client's investigations further reveal that the Email has proven to be a fabrication. Enclosed are copies of an independent Report completed by the Local Government Association of Queensland ("LGAQ") on 22 March 2017, entitled "Assessment of Email Records"; together with a Media Release made by our client on 10 August 2017.
[172]
The email also noted the Anti-Discrimination Commission had the previous day dismissed Mrs Roberson's claim with respect to discrimination alleged as a result of the email.[63]
[173]
[179] There had also been a complaint before the Anti-Discrimination Commission in relation to the content of the fabricated email. Mrs Habermann and Mrs Roberson had communicated directly in relation to that proceeding. She testified Mrs Habermann had emphatically denied having written it and had pointed out a discrepancy with the timing. Mrs Roberson testified:
[174]
[A]t that stage I was inclined to believe that she was telling fibs, but it sowed a seed of doubt. And it was rather disturbing to find out that I'd put it out there, and if - and saying that she hadn't written it, and then to turn around and find out she may not have written it. Was - you know, that was a bit of a gut punch, really. It was one of those, you know, what had - what have I done sort of things, which is why I'm here today.
[175]
[180] It is noteworthy that hearing Mrs Habermann's denial was enough to generate the dawning of a 'what have I done' realisation. It demonstrates how different things could easily have been if content of the kind contained in Mrs Habermann's persuasive analysis of the falsity of the fabricated email in her email to Council of 23 February 2017 had been revealed by Council in a timely way to Mrs Roberson.
[176]
[181] Mrs Habermann was unable to work from 23 August 2017. There was an attempt made to return to work after mid-2019, followed by an era of working from home and of working reduced hours to 15 January 2021.[64]
[182] Ms Boulton observed, in relation to the era when Mrs Habermann attempted to continue working, that she appeared very nervous, was easily triggered and struggled to do basic tasks.
[183] On 9 July 2021 CEO Linda Cardew wrote to Mrs Habermann, noting her inability to work in any capacity since 15 January 2021, foreshadowing the possibility of her termination and requesting a medical report and other submissions she might wish to make.[65]
[184] On 13 July 2021 Dr Van Der Meer sent a letter to CEO Linda Cardew confirming Mrs Habermann had no capacity to return to work and would not be fit to return to her role for the foreseeable future.[66]
[185] On 23 July 2021 CEO Linda Cardew sent a letter to Mrs Habermann terminating her employment effective 24 August 2021.[67]
[177]
The tabling of the fabricated email in Parliament caused Mrs Habermann's psychiatric injury
[178]
[186] Consultant Psychiatrist Dr Michael Likely, the only psychiatrist to give evidence in the trial, opined that, as a result of learning of the tabling in Parliament of the fabricated email on 9 August 2017, Mrs Habermann developed major depressive order with anxious distress. He opined this condition was exacerbated following the second tabling of the fabricated email on 7 September 2017. He noted Mrs Habermann had some pre-existing symptoms of psychological morbidity, but they 'did not declare themselves fully' until 9 August 2017.
[187] Mrs Habermann had a long-standing history of psychiatric care and medication for anxiety and depression. It was evidenced in a document settled by the parties summarising Mrs Habermann's medical history by reference to the content of clinical notes.[68]
[188] The document showed Mrs Habermann had been on anti-depressants since her teenage years and had been consulting general practitioners in Cooktown for such medication since late 2007. It recorded multiple contacts with a psychiatrist over the ensuing years to aid her in dealing with her past issues regarding her family and contemporary stressors arising in her private life and at work. There was a point at which Mrs Habermann suspected she had attention deficit hyperactivity disorder but the predominantly administered treatment was for depression and anxiety.
[189] The stressors referred to in the records as having triggered Mrs Habermann's seeking of assistance appear to have been objectively mundane, albeit subjectively important to Mrs Habermann. None involved objectively traumatic life events. None approached the severity of likely impact which these events did.
[190] In his third report, Dr Likely was asked to consider if Mrs Habermann's injury would have been avoided if Council had taken a number of the protective steps contended for by Mrs Habermann's lawyers in the present proceeding. His report opined the injury 'would have been avoided', however he testified the correct word was not 'avoided' but 'mitigated' or described as a 'reduced chance of an injury'. He explained there was no way of telling whether it would have been 'definitely prevented'. That qualification merely reflected the imprecision inherent in the mixed factual and medical question he was addressing. It is not apparent how his expertise would allow him to answer such a question reliably, for it would depend on the factual, not medical question, of whether such steps would have avoided the tabling in Parliament.
[179]
... did not appear to be an exacerbation of her pre-existing ADHD or past episodes of anxiety/depression due to the fact that until the document was tabled she was continuing to function adequately in all other life domains.[69]
[180]
The latter observation is significant. It is consistent with other evidence that Mrs Haberman's past psychiatric problems had not impacted the performance of her work.
[181]
[193] Dr Likely's evidence and the evidence and timing of the collapse in Mrs Haberman's mental state compel the conclusion that her psychiatric injury was caused by the tabling of the fabricated email in Parliament on 9 August 2017 and aggravated by the second tabling on 7 September 2017.
[194] The obvious reason why the tabling resulted in the psychiatric injury is that it was a broadcast of the fabricated email to a public audience, inevitably resulting in its promulgation among the public. This would inevitably have the consequence in Mrs Habermann's perception that the public would wrongly believe from the fabricated email's content that she was a racist who had engaged in a deceitful misuse of her position at Council. It was a personally devastating consequence for her; a consequence she was powerless to prevent once the email was broadcast publicly.
[195] This heralds the significance of the fact that, even before that point, she had no real power to take steps likely to have prevented it being broadcast. It was Council, as her employer and controller of the data source from which the fabricated email supposedly emanated, which had that power.
[182]
5. Would the tabling in Parliament have occurred if Council had demonstrated the falsity of the fabricated email to Pamela Roberson and Greg Whittaker?
[183]
[196] Working backwards, the causal pathway to the tabling of the document in each instance was that they were provided to Mr Pyne by Ms Leigh. In the first instance Ms Leigh obtained it as assistant to Mrs Roberson and in the second instance received it from Mr Whittaker. The cause of the documents being so obtained and provided in each instance was Council's own conduct.
[197] Broadly speaking that conduct was a failure to properly investigate the fabricated email and demonstrate its falsity in a timely way to those who had raised it with Council - Mrs Roberson, in her debt case, and Mr Whittaker, in his meeting with Mr Cronin. In a directly causal sense that conduct was Council's failure to revert to Mrs Roberson and Mr Whittaker regarding the outcome of its investigation of the fabricated email, in circumstances where it knew both expected it was going to do so.
[198] It should have been a simple task for Council to demonstrate the fabricated email had not emanated from its email system. Demonstrating that fact alone would demonstrate the falsity of the fabricated email. Moreover, as explained at [42] of these reasons, there was a persuasive array of other facts demonstrating it was a fabrication.
[199] A remarkable feature of this case is that, despite the ease with which it could have been done, Council failed to even attempt to reveal to Mrs Roberson and Mr Whittaker the facts which demonstrated the fabricated email was a fabrication. Even more remarkably, it failed to revert to them in a timely way on the topic in circumstances where it knew they were both expecting it to do so.
[200] Council in effect argues that none of this matters, because, once the fabricated email was in the hands of Ms Leigh, it was inevitable that she would have passed the email on to Mr Pyne and it would have been tabled in Parliament. That argument must be rejected.
[201] Before explaining why, I note Council acknowledged in closing submissions that it was unnecessary to deal in a separate sense with Council's causal responsibility for the second tabling,[70] as if a line could be drawn between the role of the two tablings. I agree. However, out of an abundance of caution, I will nonetheless explain why neither tabling would have occurred but for Council's conduct and continue to assess liability by reference to both.
[184]
The first tabling would not have occurred but for Council's conduct
[185]
[202] Had Council reverted to Mrs Roberson and revealed the facts demonstrating the fabricated email was a fabrication, there of course exists the possibility that Mrs Roberson would not concede the demonstration satisfied her that the email was a fabrication. After all, she was intimately connected with the revealing of the fabricated email and would have appreciated that she or someone with access to her email system would be suspected of fabricating it.
[203] However, even if she did not make that concession, it is inherently implausible in the face of Council providing facts demonstrating the email was fabricated, that Mrs Roberson would have continued to rely upon, let alone promulgate, the fabricated email. If she had been the fabricator of the email she would have realised, now she knew Council could show it was a fabrication, that the stakes were considerably higher and riskier for her. She would have realised persisting in relying upon or promulgating the fabricated email may provoke civil action or even criminal prosecution against her. If she had not been the fabricator of the email, she would at least now have realised the email had probably been fabricated and fabricated by someone close to her. In such circumstances it is most unlikely she would have continued to rely upon or promulgate the fabricated email.
[204] Such a conclusion is consistent with the fact that on Mrs Roberson's account, she began to have regrets about what she may have unwittingly done when she learned in an Anti-Discrimination Commission proceeding that Mrs Habermann had emphatically denied writing the fabricated email and had pointed out a discrepancy with the timing. If a denial and a timing discrepancy were enough to sow doubt it is inevitable that Council's provision of the facts demonstrating the fabrication would have had an even more compelling effect.
[205] That said, in judging what would likely have occurred had Council done what it should have, I place weight upon the objective evidence of the facts prevailing at the time and the inferences flowing from those facts, rather than the subjective views hypothesised by witnesses with the benefit of hindsight. Such views carry no material weight because they are inevitably infected by the natural individual inclination to minimise, rationalise and justify the individual's involvement in doing unwarranted harm to another.
[186]
Not in total. No. ... I have problems. I would have given certain parts of it little to no weight. Some parts of it, I'm not sure about. To me they didn't answer the questions that I was asking about.
[187]
[208] Exhibit 26 was Mrs Habermann's email to Mr Cronin and others of 23 February 2017 in which she provided her comprehensive and persuasive denial of authorship of the fabricated email by specific reference to various aspects of it and other information. When it was put to her that even if she had that email in her possession, it would not have made any difference and she would still have taken the fabricated email to Mr Pyne, her response was, 'Yes. Because I was waiting for the independent report'. She elaborated upon that answer in re-examination, explaining the fact that Mrs Habermann's email was asking for an independent investigation left her concerned that there was no independent investigation undertaken and that such a failure was part of the maladministration of Council. It is to be appreciated in this context that the dossier she provided to Mr Pyne evidently included an array of examples of alleged maladministration by Council.
[209] I found this evidence inherently implausible. It betrayed an obvious realisation by Ms Leigh that the content of Mrs Habermann's email of 23 February 2017, exhibit 26, was very persuasive in indicating she did not write the fabricated email. Ms Leigh's hypothesis that she would nonetheless have provided the fabricated email to Mr Pyne, not because it was a fabrication but because Council's failure to provide the outcome of its investigation to Mrs Roberson was an example of maladministration by Council, was not credible. Moreover, it was a flawed hypothetical because, if she had known there were such persuasive indications as those appearing in Mrs Habermann's email of 23 February 2017, such knowledge would likely have emerged via Council's disclosure of it to Mrs Roberson. That corrupts the premise of a hypothesis which assumed Council did not revert to Mrs Roberson on the topic.
[210] I have already found that if Council reverted to Mrs Roberson and revealed the facts demonstrating the fabricated email was a fabrication, she would not have further relied upon or promulgated the email. However, once Mrs Roberson would have decided that the fabricated email should not be further relied upon or promulgated, it is inherently unlikely Ms Leigh would nonetheless have included the fabricated email in her documents provided to Mr Pyne. In this context it will be recalled Ms Leigh was Mrs Roberson's assistant in the debt case in which the fabricated email had been deployed. Ms Leigh undoubtedly had a dim view of Council and was motivated to pursue the public promulgation of documents unfavourable to it. However, Mrs Roberson was the legitimising source of the fabricated email and Ms Leigh's active role in connection with the fabricated email had been as Mrs Roberson's assistant. Ms Leigh was most unlikely to promulgate it once Mrs Roberson had been provided with the facts demonstrating it was fabricated and decided she would no longer rely on it.
[188]
The second tabling would not have occurred but for Council's conduct
[189]
[213] The same reasoning applies in respect of Ms Leigh's provision of Mr Whittaker's statement to Mr Pyne, which gave rise to the second tabling in Parliament.
[214] It will be recalled I have found Mr Cronin knew Mr Whittaker expected Mr Cronin would get back to him about the investigation of the fabricated email. Mr Cronin did not get back to Mr Whittaker. Mr Whittaker thus continued to think the fabricated email was genuine. That belief was unwittingly reinforced when he wrongly assumed Mrs Habermann's tearful call of thanks to him was an admission. He would have been disabused of that belief and assumption if Mr Cronin had reverted to him about the investigation of the fabricated email and revealed the facts which demonstrated the fabricated email was a fabrication.
[215] Because Mr Cronin did not revert to him about the matter, Mr Whittaker became frustrated by Council publicly proclaiming in the wake of the first tabling that the fabricated email had been found to be a fabrication by an independent external investigation. Ms Leigh was likewise troubled by the implication of that publicity, despite Mrs Roberson not having been given the results of Council's investigation. She accordingly encouraged and assisted Mr Whittaker to make the statement which she provided to Mr Pyne and which was then tabled on the second occasion.
[216] Whether approaching the causal equation directly or indirectly, the second tabling would not have occurred but for Council's conduct.
[217] Approaching the causal equation directly, Mr Whittaker would not have provided his statement to Ms Leigh, and thus she would not have provided it to Mr Pyne, if Council had reverted to him and revealed the facts demonstrating the fabricated email had been fabricated. Had that occurred it would invariably have prompted a realisation, or dialogue resulting in a realisation, that he had misunderstood the significance of Mrs Habermann's tearful telephone call to him. As with Mrs Roberson, even if he was not completely persuaded the email was a fabrication, it is inherently implausible in the face of Council providing facts demonstrating the fabricated email was fabricated, that he would have been motivated to promulgate the fabricated email, let alone do so via the provision of his statement to Ms Leigh.
[218] Approaching the causal equation indirectly, by reference to what would have occurred if Council reverted to Mrs Roberson and revealed the facts demonstrating the fabricated email had been fabricated, I have already found Ms Leigh would not have provided the fabricated email to Mr Pyne. It follows she also would not have encouraged Mr Whittaker to make his statement or been motivated to provide that statement to Mr Pyne as she did.
[190]
The fabricated email was otherwise unlikely to find its way into the public domain
[191]
[220] The above reasoning explores the counter-factual of what would have happened if Council had reverted to Mrs Roberson and Mr Whittaker as expected, and had revealed to them, as it so easily could have, that the facts demonstrating the fabricated email had been fabricated. If that occurred then, for the above reasons, it is unlikely that they or Ms Leigh would have perpetuated the fabricated email in the public domain.
[221] This only leaves Ms Jerome, and arguably Mr Martin, as other potentially known sources of knowledge about the email in the community. Ms Jerome's situation was very closely allied to that of Mrs Roberson and Ms Leigh. She knew of the fabricated email because she was helping Mrs Roberson. Indeed, it was her that supposedly discovered it. Had Council reverted to Mrs Roberson and revealed the facts demonstrating it was fabricated, Ms Jerome would doubtless have been advised of that by Mrs Roberson. Ms Jerome's proximity to what had occurred meant she was unlikely to have promulgated the fabricated email, for the same reasons I have explained Mrs Roberson was unlikely to have done so.
[222] This leaves Mr Martin. There is no evidence he was ever in actual possession of a copy of the fabricated email. In any event, his own conduct in twice warning Mrs Habermann about it demonstrates he was unlikely to perpetuate the fabricated email in the public domain.
[223] Of course, it is theoretically possible that some other person, not identified in evidence, may have had a copy of the fabricated email and possible such a person may have been tempted to broadcast it. However, I can only act on the evidence as known. If there existed evidence of the email having been distributed or shown to persons in the community other than those named in these reasons, Council would doubtless have led such evidence.
[224] In any event, the evidence suggests the set of persons in the community who did have a copy of the email were closely connected. This makes it likely, if some other person had a copy of it, that they were on the fringe of that set. It in turn makes it likely, had Council reverted to Mrs Roberson and Mr Whittaker per the above discussed counter-factual, that they would have learned of the facts demonstrating the email was fabricated. Such knowledge would likely deter such a person from promulgating the email, particularly in circumstances where the central members of the set were likely to be so deterred.
[192]
6. Was there a foreseeable risk, prior to the tabling, that Mrs Habermann would suffer a psychiatric injury from the perpetuation of the fabricated email in the public domain?
[193]
[226] A necessary step in the alleged chain of liability is that, prior to the tabling, there was a foreseeable risk, both of the fabricated email being perpetuated in the public domain, and of that perpetuation causing psychiatric injury to Mrs Habermann.
[194]
There was obviously a foreseeable risk of the email being perpetuated in the public domain
[195]
[227] As to the former it is not necessary that the detail of the specific means by which the fabricated email came to be perpetuated in the public domain was foreseeable. It is sufficient that there was a foreseeable risk of it in some way being perpetuated in the public domain. It would have been obvious to Council that the fabricated email was so inherently controversial that once it entered the public domain news of it would inevitably spread quickly and widely among the public.
[228] The fabricated email was only known of by a small set of connected people prior to the tabling. However, Council knew some of those people were critical of it and some were members of an Association which had previously deployed its Facebook page to criticise Council. Council also knew the content of the email was adverse to Council. It thus knew the fabricated email was in the hands of a set of people with a greater than ordinary motivation to publicise it. More particularly it had to have known there was a heightened risk the fabricated email would be revealed to the public, if it did not investigate and demonstrate that the email was a fabrication to those expecting it to revert to them about it. It equally had to appreciate it would materially reduce that risk by so reverting to those people.
[229] I find there was a foreseeable risk of the fabricated email being perpetuated in the public domain. I find that Council knew the probability of it being so perpetuated would be materially reduced if it reverted to Mrs Roberson and Mr Whittaker to reveal the facts demonstrating it was fabricated, and materially increased if it did not.
[196]
Council contends it was not foreseeable that such perpetuation would cause psychiatric injury
[197]
[230] But, if that risk manifested, was there a foreseeable risk of it causing psychiatric injury to Mrs Habermann? Council submits the circumstances as known to Council were not such as to give rise to a foreseeable risk of psychiatric injury.
[231] Council emphasised that as far as it knew, Mrs Habermann was a high functioning employee who exhibited no signs of on-going distress after her initially expressed upset on learning of the fabricated email on 14 September 2016 and on receiving a copy of it on 23 February 2017. It highlights Mrs Habermann did not testify to, or report to her treating doctor about, having experienced any potential psychiatric symptoms in the period between February and August 2017. That emphasis may have been relevant if this was a case in which Mrs Habermann laid claim to exhibiting signs to Council which Council disputed. There was no such dispute. It is common ground that such signs as were exhibited were the signs of Mrs Habermann being upset around 14 September 2016 and 23 February 2017.
[232] Council's submissions urged the giving of little weight to Mrs Habermann's initially expressed distress as informing the foreseeability of the impact which the potential public broadcasting of the fabricated email would have upon her. Its submissions placed particular focus on the absence of subsequent signs of distress as if the signs of an employee being at risk of psychiatric injury are limited to the employee's exhibited behavioural response to a stressor. Such limitation would wrongly ignore the possibility that the extreme character of a stressor may of itself signal a risk of psychiatric injury.
[198]
The significance of Mrs Habermann's initially expressed distress
[199]
[233] Mrs Habermann's email to Council about what Mr Martin told her on 14 September 2016 said what he told her was 'distressing and confronting'. It will be recalled Council admits that by her email to it of that date it was informed Mrs Habermann was concerned about the allegation that she was racist having regard to her demonstrated commitment to racial equality and promotion of the interests of traditional owners in respect of land tenure.
[234] It will also be recalled Mr Cronin testified it had not come as a surprise to him that Mrs Habermann had found what Mr Martin told her incredibly distressing, allegations of racism being extremely serious and incredibly damaging against the person they are made about. He testified this impact was amplified in a small community like Cooktown with a high Indigenous population, with which Council had strived to maintain a harmonious relationship.
[235] Mr Cronin knew from Mrs Habermann's email to he and others of 23 February 2017 that she was so concerned by the fabricated email as to have engaged in an in-depth analysis of why it was false. He knew from that analysis that there were compelling indications the email had been fabricated. He knew Mrs Habermann was so concerned she had requested an independent investigation by an IT expert. He knew she had 'burst into tears' as a result of Mr Martin's visit. He knew the fabricated email was 'shattering' to her, she had 'trouble reading it', she found it 'very difficult to cope with' it potentially circulating in the community she had 'chosen to call home' and she found the experience 'horrible'. He knew she had submitted two incident forms and ticked the type of incident as 'Other psychological'.
[236] The significance of such signs of emotional distress at this stage of events is that they forewarned Council the perpetuation of the fabricated email in the public domain may have a commensurately more devasting psychological impact upon Mrs Habermann. That said, Council scarcely needed such signs to alert it to the foreseeable risk of psychiatric injury. As will shortly be explained, the extreme consequences which the public broadcasting of the fabricated email would have for any employee in Mrs Habermann's position made that risk foreseeable.
[237] Council suggested the content of Mr Habermann's stoic email to Council of 2 March 2017 showed she was no longer troubled. It particularly emphasised her explanation, having spoken to Mr Skipworth, that 'whilst initially distressing, in the scheme of things, the content of an unsubstantiated pdf is of little consequence'. However, it would have been apparent to Council from the content of Mrs Habermann's stoic email that her words were selflessly addressing the existence of the fabricated email from her senior position of corporate responsibility. She was obviously writing to Council's corporate interest, rather than her personal interest.
[200]
The extreme consequences which the public broadcasting of the fabricated email would have for any employee in Mrs Habermann's position
[201]
[241] Council had to have known that if the fabricated email was perpetuated in the public domain it would have extreme consequences for Mrs Habermann.
[242] Mr Cronin was asked what he envisaged those consequences might be for Mrs Habermann at the time the events were unfolding. He responded she would be devastated. As Mr Cronin acknowledged, Mrs Habermann had worked in the Cooktown community for a long time, married a local, settled there and had children there. He acknowledged she was very committed to working in issues such as Native Title and with Indigenous organisations. He explained such work was a 'big part' of the work she was doing and 'she was very passionate about it and very committed to it so to have an email like that with that sort of allegation made public ... would be devastating'. He considered had it been made public it would have affected her ability to continue in the same way with her work with the community.
[243] Ms Boulton, Council's Human Resources Manager, was asked when she became aware of Mrs Habermann's email of 23 February 2017, in which Mrs Habermann provided her persuasive denial of authoring the fabricated email, whether she held any concerns about the impact of it upon Mrs Habermann. She responded that naturally she did hold concerns, given the alleged racial slur, the high proportion of First Nations persons in their community, the importance of relationships with them and the inevitable impact that would cause to Mrs Habermann, particularly because she was in a governance role, upholding the systems of Council, leading by example and holding the organisation to a high standard.
[244] Such evidence from Mr Cronin and Ms Boulton was unsurprising. Even without it, the facts as known to Council were collectively extreme in their potential impact - so extreme as to bespeak a foreseeable risk of psychiatric injury.
[245] Council knew the content of the fabricated email was itself extraordinary. If true, it meant much more than that its Business Services Manager Mrs Habermann was racist. It meant she was abusing her office, to deceitfully ensure Council would not favour Gungarde as a potential new lessee of the Cayman Cruises waterfront premises. If true, it also meant Council's CEO had been complicit in the scheme, making the email even more likely to attract attention if broadcast to the public.
[202]
7. What was the scope of Council's duty of care?
[203]
[255] Council in effect submits the scope of its duty to take reasonable care to avoid exposing its employee to unnecessary risk of injury did not extend to taking steps calculated at avoiding the foreseeable risk of the fabricated email being perpetuated in the public domain.
[256] In considering the scope of the duty of care, Hayne J explained in Modbury Triangle Shopping Centre Pty Ltd v Anzil,[71] that it is useful to begin by identifying the nature of the harm, for which the defendant is said to be liable. Then, consideration of whether that harm, if caused by the want of care alleged, resulted from a breach of duty owed, may more readily identify the scope of the duty on which the claim must depend.
[257] Here the harm was a major depressive disorder with anxious distress. That psychiatric injury was caused by the fabricated email being perpetuated in the public domain. I have found there was a foreseeable risk of Mrs Habermann suffering a psychiatric injury if the fabricated email was perpetuated in the public domain. I have found the fabricated email would not have been perpetuated in the public domain if Council had reverted to Mrs Roberson and Mr Whittaker and revealed the facts demonstrating that it was a fabrication, in a timely way.
[258] Accordingly, for the harm to have resulted from a breach of duty owed, it is necessary that the scope of Council's duty, required it to take reasonable steps to avoid the perpetuation of the content of the fabricated email in the public domain and that such steps included revealing the facts demonstrating the falsity of the fabricated email to Mrs Roberson and Mr Whittaker in a timely way.
[259] Such a scope is beyond that often encountered in workplace injury cases where there is risk of injury to a person performing a task in the workplace and a need to safeguard against that risk by devising a safe system of work. However, the scope of the duty of care in each case is not identifiable in the abstract and will depend upon the circumstances of the case. There is no logical justification for limiting the scope of the employer's duty of care by reference to systemic workplace considerations.
[260] Some cases may involve situation specific circumstances, the novelty of which carries them beyond the circumstances typically contemplated by a so-called system of work. Of course, their novelty may inform assessment of foreseeability. But once an employer is aware of those circumstances, and that they pose a foreseeable risk of injury to an employee in their capacity as an employee, that knowledge informs the scope of the duty owed in those circumstances. It does here.
[204]
[273] Contrary to it being within the scope of its duty, Council did not revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email to them, in a timely way. The only evidence of Council providing either of them with such facts was Council's provision of Mr Newman's report to Mrs Roberson long after the tablings had occurred and the harm had been done.
[274] There are two components to that apparently clear breach, in that it was not enough to merely revert to them but also necessary, in doing so, to reveal the facts demonstrating the falsity of the fabricated email to them. Council's failure to do the first, necessarily means it failed to do the second.
[275] It is therefore unnecessary to express a concluded view as whether Council failed to do what was reasonably necessary to be able to reveal facts in such a way as to demonstrate the falsity of the fabricated email. Obviously what it had done left it much less well prepared to do so than it easily should have been. It had obtained an obscurely expressed report from a non-IT expert and took no remedial action to correct those shortcomings.
[276] In any event Council's failure to revert necessarily meant that, whether properly prepared to or not, it failed to reveal the facts demonstrating the falsity of the fabricated email to them.
[277] Finding whether there has been a breach of duty requires assessment of the magnitude of the risk of injury and its degree of probability because that bears upon what a reasonable employer would do by way of response to the risk.[74] This is reflected in the requirements of s 305B(1) and (2) Workers Compensation and Rehabilitation Act 2003 (Qld).
[278] The effect of s 305B(1) is that Council will not have breached its duty to take precautions against a risk of injury to Mrs Habermann unless the risk was foreseeable and not insignificant and a reasonable person in Council's position would have taken the precautions.
[279] I have found there was a foreseeable risk, that is, a risk of which Council knew or ought reasonably to have known, of any person in Mrs Habermann's position suffering a psychiatric injury if the fabricated email was perpetuated in the public domain. In making that finding I identified the collectively extreme prevailing circumstances and how the set of connected people who knew of the fabricated email prior to the tabling were more than ordinarily motivated to publicise it. I also explained how the risk of them revealing the fabricated email to the public was even more significant if Council did not investigate and demonstrate that the email was a fabrication to those expecting it to revert to them about it.
(a) the element of factual causation, namely that the breach was a necessary condition of the occurrence of the injury; and
(b) the element of scope of liability, namely that it is appropriate for the scope of Council's liability to extend to the injury so caused.
[207]
[286] The section thus adopts the 'but for' test of causation. Mrs Habermann was accordingly required to prove that her psychiatric injury would not have occurred but for Council's negligence in failing to revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email to them, in a timely way. I have found on the balance of probabilities the fabricated email would not have been perpetuated in the public domain if Council had reverted to Mrs Roberson and Mr Whittaker, as they expected, and had revealed to them, as it so easily could have, that the facts demonstrating the fabricated email had been fabricated. I have found it was the perpetuating of the fabricated email in the public domain which caused Mrs Habermann's psychiatric injury. It follows Mrs Habermann would not have suffered her psychiatric injury but for Council's negligence.
[287] Further, for reasons already given in dealing with the scope of liability, it is appropriate that the scope of Council's liability should extend to causation of a foreseeable injury which would not have occurred if Council had met the undemanding duty of care which the circumstances of this case placed upon it.
[288] I accordingly find Council's breach of its duty of care to Mrs Habermann caused her injury. Council is liable for the consequences thereof.
[208]
[289] The process of quantifying several heads of damage in this case is informed by some common considerations, particularly the impact of the injury upon Mrs Habermann's life and future career and the potential future significance of Mrs Habermann's pre-existing psychiatric problems.
[290] It is convenient to give some general consideration to those matters before moving to assessment of specific heads of damage.
[209]
[291] Mrs Habermann's injury has had a devastating impact upon her life.
[292] She described the impact of what had occurred as having stripped away her life's mission. She described herself as now being a different person, there being 'no remnants left' of the person she was, a person who 'did everything ... was powerful ... flying' and 'was well'.
[293] She did her best to return to work but eventually it became too much for her to continue. She developed a pervasive subjectively experienced depressive mood that was present on most days, her sleep became broken and she lost her appetite and weight. She lost her enjoyment of food. She experienced day-time drowsiness, lethargy and lack of motivation and loss of previous enjoyment of her leisure activities. She became irritable and found it difficult to parent her children.
[294] She experienced poor attention and concentration, leading to difficulty retaining and retrieving information. This, in turn, caused short-term memory problems which, by extrapolation, compromised her capacity to effectively plan, organise sequence and perform tasks, leading to decreased proactivity, disorganisation and further erosion of her already shattered sense of self-esteem. She neglected a regular diet and fluid intake and her personal care.
[295] A lasting consequence of the tabling was its continuing impact on Mrs Habermann's mind as she was left to live her life with her on-going perception the public would wrongly believe from the fabricated email's content that she was a racist who had engaged in a deceitful misuse of her position at Council. She lives, not only conscious of Cooktown's small size and the inevitability of local gossip, but with the knowledge that merely Googling her name generates multiple hits about her being a racist.
[296] Mrs Habermann became completely socially withdrawn, venturing only to Cooktown for necessities and generally at a time of day when fewer people were likely to be encountered. Her ongoing aversion to social interaction was reinforced by an attempt to venture further afield to have dinner with family and friends in Cairns, but after 20 minutes in the restaurant she experienced acute anxiety fragmentation and over-stimulus and had to leave and wait in the family's vehicle outside.
[297] Ms Boulton testified that Mrs Habermann was rarely seen around town. She explained this was in contrast to her being very sociable prior to the tabling of the fabricated email in Parliament. She recalled Mrs Habermann had been extremely social, friendly, she would invite people around to her house, and had made a big effort to be inclusive of Ms Boulton when she had first arrived in town. Ms Boulton recalled Mrs Habermann had also been very sociable at work, 'very knowledgeable, bright, fun'. Ms Boulton explained Mrs Habermann is now a completely different person and even though in the last few years she appears to have improved in her wellbeing, in relating to people at an everyday like level, she still degenerates into being anxious, flustered and confused whenever Ms Boulton seeks her advice about Ms Boulton's work-related issues.
[210]
Impact of the injury upon Mrs Habermann's future career
[211]
[304] As earlier explained Mrs Habermann's injury eventually led to her complete cessation of employment at Council. She had become unable to perform her employment in any capacity because of her major depressive order and associated anxiety symptoms, which resulted from the tabling of the fabricated email.
[305] Dr Likely concluded that Mrs Habermann's disorder and its associated anxiety symptoms are so severe that they will preclude Mrs Habermann from ever engaging in any form of remunerative employment in the future. The above-described impact of the injury upon Mrs Habermann's life strongly supports that conclusion.
[306] No opinion evidence was adduced as to whether Mrs Habermann's symptoms may be materially eased in the event of her success on liability in this trial. It is the type of evidence a psychiatrist could give. Doubtless Council would have adduced such evidence if it was available.
[307] The judgment comes at a time long removed from the commencement of the adverse consequences of the tabling. Those consequences were on-going and the above description of Mrs Habermann's life demonstrates the lasting impact they have had upon her. The impact upon her has been entrenched for a long time. Dr Likely opines she will not engage in future remunerative employment. In the face of such evidence there is no foundation for an inference that the impact of this tort upon her will be so materially eased by this judgment or the further passage of time that she will likely regain the capacity for paid employment, let alone the capacity to re-establish her past career. Nor was such an inference sought.
[308] The devastating impact upon Mrs Habermann represents a significant reversal of her employment trajectory.
[309] She was well qualified for remunerative employment. She was awarded the degrees of Bachelor of Commerce with Honours and Bachelor of Information Systems in 2003, in her home state of Tasmania. She subsequently worked in marketing and sales management in Melbourne before successfully applying for the position of Procurement Officer with Cook Shire Council. She moved to Cooktown to take up that position in 2006, aged 28.
[310] During Mrs Habermann's employment with Council she performed her professional roles very capably, implementing improved governance systems. Her performance was positively reviewed. She also successfully pursued further studies, achieving degrees of Master of Urban and Regional Planning in 2012 and Master of Professional Accounting in 2015.
[212]
Potential future significance of Mrs Habermann's pre-existing psychiatric problems
[213]
The need for the discount for contingencies to allow for pre-existing psychiatric vulnerability
[214]
[313] It will be recalled Mrs Habermann had a long-standing history of seeking psychiatric assistance in managing her anxiety and depression.
[314] Council's approach to this litigation verged upon an implicit assumption that because Mrs Habermann was a person who had a history of seeking assistance for psychiatric problems, sooner or later a stressor would have come along to diminish or destroy her income earning capacity.
[315] Two considerations point powerfully to the contrary. Firstly, the apparent severity of the stressors triggering her recurring decompensation and seeking of psychiatric assistance in the past were of objectively unremarkable and far lesser degree than the devastating circumstances of the perpetuation in the public domain of the malevolently fabricated email. Secondly, none of the past episodes of Mrs Habermann seeking psychiatric assistance appear to have interfered with her work performance. Whatever the private impact of her psychiatric problems had been, Mrs Habermann had obviously been a highly effective employee, able to function so well in her working life that she was rewarded with progressively more senior appointments within Council. The impression arising is that, in a dynamic which is not unheard of among high-achieving professionals, Mrs Habermann had the insight to cope with her depression and anxiety by seeking assistance in managing it, thus maintaining her high functioning capacity in the work to which she was so committed. It is scarcely surprising that Dr Likely observed, despite her psychological problems, she had shown herself to be a very resilient person with respect to her work.
[316] Dr Likely accepted the records showed Mrs Habermann was a person who went into situational psychiatric crises from time to time, depending on the stressors in her life. He accepted it is likely the past pattern would have continued, so that, quite apart from the events with which this proceeding is concerned, Mrs Habermann would have needed ongoing psychiatric assistance and medication over her lifetime.
[317] Dr Likely acknowledged it was difficult to divide her ongoing psychological treatment needs between the consequences of the events in this case and her, in any event, underlying psychological needs. He, in effect, opined that her treatment needs deriving from the events in this case would be higher in their aftermath but would, in the long term, reduce relative to the long-term demands in any event of her pre-existing psychological vulnerabilities. He opined that, once past the age of 50, Mrs Habermann would, in any event, have required anti-depressant medication on a lifelong basis.
[215]
[I]s it reasonable to assume that after about 12 months of treatment after August 2017, this lady was probably not so much affected by those events, but by her longstanding problems? --- I think that's a good assumption. Yes.
[216]
[320] In giving that answer it appears Dr Likely was agreeing on the premise that the stressors occasioning the decompensation only occurred in August 2017. As was pointed out to Dr Likely in re-examination, the tabling had occasioned continuing stressors, for instance distress experienced in engaging with her small local community. Dr Likely confirmed in re-examination that his temporal estimate related to a scenario in which the stressors which influenced Mrs Habermann had been 'removed'. He testified it was 'difficult, if not impossible' to draw a line between 'what is an ongoing stress and what has been removed'.
[321] As earlier explained, the adverse impact of the tabling upon Mrs Habermann has been on-going. It has been so entrenched for such a long time that she is unlikely to regain her capacity for paid employment.
[322] Her past psychiatric vulnerabilities having had no past impact upon her employment capacity, it would be unreasonable to approach the discounting of her award for loss of earnings on the premise her capacity for paid employment would inevitably have been impacted by those vulnerabilities in the future. In that sense there is a distinction from the apparent inevitability in Dr Likely's view of her requiring medication for her depression and anxiety in the future.
[323] Nonetheless, Mrs Habermann's pre-existing psychiatric vulnerability left her more than ordinarily vulnerable in the future to the vicissitudes of life. That vulnerability warrants some uplift of such discounting for contingencies as the circumstances of the case would otherwise require.
[217]
[324] To the present point, where the Court has the advantage of knowing what has occurred, the chances of such vulnerability manifesting to such an extent as to interfere with her income earning capacity were apparently quite low. Of course, there may have been stressors unrelated to the fabricated email having manifested in the meantime. Of course, those stressors may have been of a kind which had previously provoked the seeking of psychiatric support. But such stressors had not previously interfered with Mrs Habermann's work. The prospect of them now having done so appears remote. That is because of the obvious drive and resilience Mrs Habermann had demonstrated over the years in successfully pursuing her work and career, along the way pursuing further study, raising a family and managing her private struggles with depression and anxiety.
[325] Of course, it may be accepted her pre-existing psychiatric vulnerability was more likely to interfere with her income earning capacity in the event of the occurrence of some objectively traumatic life event. But there is no evidence of such an occurrence to this point, excluding the events connected with the fabricated email.
[326] Another relatively remote prospect is that Mrs Habermann may have had a reversal to the positive trajectory of her working career. In my below reasons I find Mrs Habermann likely would have, had she not been injured, been promoted to a higher income earning position which became available after her injury. Her counsel submitted I should discount the income attributable to that likely prospect by 10 per cent on the premise she was 90 per cent likely to have been promoted. While taking the same approach, Council's counsel submitted for an 80 per cent discounting of the additional salary that promotion would bring, diminishing to 60 per cent in assessing future economic loss. I will not take that approach.
[327] The infrastructure of the assessment process is built upon findings on the balance of probabilities. If discounting allowance is made along the way on the basis of the lack of absolute future certainty inherent in such findings and there is then discounting for contingencies at the back end, plaintiff's awards may be erroneously double discounted. The preferable course here is to identify the probable loss of earning capacity by reference to likely loss of earnings or prospective earnings, as best the evidence allows, and thereafter apply such discounting for contingencies as is appropriate. Often overlooked in calculating that discount is that things may have turned out even better, rather than inevitably worse, for a plaintiff in the future.
[218]
The contingencies discount for future economic loss
[219]
[332] As to future loss of earnings, in the absence of evidence of past psychiatric problems, and in view of Mrs Habermann's past professional commitment, I would not have favoured a greater than moderate contingency discount.[77]
[333] However, the discount should be substantial because of the added allowance of the above identified vulnerability. Council submitted for a discount of 30 per cent, with Mrs Habermann's counsel submitting it should not be higher than that. In my conclusion such a discount appropriately allows for Mrs Habermann's past exhibited pattern of resilience in her work, despite her psychiatric problems, as well as for the heightened possibility over such a long period, of the occurrence of traumatic stressors adversely impacating Mrs Habermann's capacity to work or to work at her previously high level.
[334] The appropriate contingencies discount of future loss of earning capacity is 30 per cent.
[336] Section 306O of the Act requires that if general damages are to be awarded, the court must assess an injury scale value ('ISV') on a scale of 0 to 100 to be calculated by reference to the general damages provisions prescribed in the Regulation. Section 306P requires damages to be calculated by reference to those provisions. The provisions of the Regulation, at ss 129-130, require reference to schedules within the Regulation. More particularly, sch 9 determines the relevant ISV for mental disorders by reference to a psychiatric impairment rating scale ('PIRS') per sch 10. The PIRS has classes of level of impairment for separate areas of functional impairment which is stipulated within sch 11. Schedule 12 provides the monetary calculation provisions to identify the relevant damages amount for the ISV.
[337] Dr Likely's most recent assessment of Mrs Habermann's mental disorder in accordance with the PIRS gives the following class ratings for the following areas of functional impairment:
[221]
[338] Those assessments, giving a total class score of 16 are consistent with the evidence. They were not materially challenged. I understood Council to submit the eventual ISV, not this score, should be assessed to be 14. Lest I misunderstood and it was intended to be a submission that this score of 16 should have been 14, I would have rejected such a submission. That is because, while Dr Likely had not been aware of the full substance of Mrs Habermann's other psychiatric problems in making his assessment, the evidence does not suggest they were problems of a kind which impacted the areas of functional impairment considered in sch 11. Nor was it suggested to Dr Likely that they did, the high point being that there is 'always room to debate' where Mrs Habermann falls on the scale of assessment. In the circumstances, I adopt Dr Likely's PIRS assessments.
[339] Section 6 sch 10 requires calculation of a median score on the assessments listed in ascending order, rounded up to the nearest whole number. Hence, 1, 2, 2, 3, 3, 5 gives a median score of 3. Applying that score and the total class score of 16 under the percentage impairment conversion table in s 7 sch 10, gives a percentage impairment of 17%.
[340] Such a rating is within sch 9's example of a mental disorder with a PIRS between 11 and 30 per cent, thus attracting an ISV range of 11 to 40. Council emphasises the need to give weight to the range moderating prospect of Mrs Habermann experiencing future difficulties in any event. It contends for an ISV of 14.
[341] However, several considerations favour an ISV falling higher in that range. They are Mrs Habermann's age and apparently ordinary life expectancy, her helplessness in protecting herself against the excruciating injustice of the publication of an email falsely depicting her as its scheming, racist author, and the impact of the injury upon Mrs Habermann's life summarised above. In my assessment the appropriate ISV is 25.
[342] Applying the relevant table in sch 12, table 7, an ISV of 25 gives rise to a calculation of general damages to be awarded in the amount of $49,650. Interest is not payable, per s 306N.
[222]
[343] The Act contemplates per s 306I that loss of earnings may be measured by economic loss due to loss of earnings or prospective earnings or the deprivation or impairment of earning capacity and prospective earning capacity. In the present case the value of Mrs Habermann's lost earning capacity, her past economic loss, is best informed by her loss of earnings and prospective earnings.
[223]
[344] It is reasonable to infer that, but for her injury, she would have continued in her employment with Council. Mrs Habermann submits she would likely have been promoted to the position of Director of Organisational Business Services, now named Chief Operating Officer. Given her positive past career trajectory with Council the likelihood of her continued promotion was high. That is particularly so in respect of positions for which she was well qualified by virtue of her experience and qualifications. The logical next step in that trajectory was her appointment to position of Director of Organisational Business Services.
[345] Most of the fields of duty of the position of Director of Organisational Business Services were fields in which Mrs Habermann had already served Council well. She had an established record of improving Council's management in those fields. All known indications point to her not only being well qualified but likely better qualified than any probable competition for the position. She was inevitably the best qualified potential internal candidate. She held the advantage over any external candidate of having already managed at a senior level with success at Council in most of the fields of duty of the position. The absence of evidence from Council as to the relative merit of the apparently external applicant who was appointed, or of other applicants, fortifies the inference that, but for Mrs Habermann's injury, she would likely have been promoted to the position. For the purposes of assessing the value of her lost income earning capacity by reference to her likely loss of earnings, I will have regard to her loss of prospective earnings as if she would have been promoted.
[346] Her past economic loss should be calculated by reference to the raised remuneration she would have experienced if so promoted, calculated inclusive of the operative remuneration commencement date of 24 February 2020 in the contract of employment of the person appointed to the position.
[347] The relevant data for the calculation of Mrs Habermann's loss of earnings and prospective earnings, initially reflecting the known remuneration rates of her existing contracts and subsequently those of the contracts for the position to which she would have been promoted, is:
[224]
[348] The above total net income of $911,024.43 should be reduced by the income received in the above era of $103,268.59 and then reduced by the 10 per cent discount for contingencies:
[225]
$807,754.84 x .90 = $726,979.36 past economic loss.
[226]
[349] I assess past economic loss, not including a loss component for superannuation, in the amount of $726,979.36.
[227]
[350] The above table identifies a superannuation loss of $107,082.87. It appears to be common ground that superannuation actually paid in the era to which the table relates was $21,733. I reduce the superannuation loss by that amount and apply the 10 per cent contingencies discount to it:
[228]
[351] In the above table I calculated lost superannuation by application of the employer percentage contribution to likely net income. Mrs Habermann submitted I should calculate lost superannuation by reference to likely gross income. That is because the superannuation payable under the relevant contracts of employment was, as is conventional, expressed as a percentage of gross salary. However, Council submits I should take the more commonly adopted approach of calculating lost superannuation by applying the employer contribution percentage to net income.
[352] Some considerations argued by Council in support of that approach, namely the potentially adverse performance of funds and even the risk of their insolvency, are of dubious force. Their exceptional quality means that in the substantially known environment of past economic loss, they would only be relevant if the subject of evidence. In the less predictable environment of future economic loss, they appear more apt to be regarded as the type of vicissitudes which a contingencies discount can capture.
[353] The impact of taxation upon superannuation is a more forceful consideration. The superannuation contributions here payable as before tax contributions would have fallen to be taxed on entry into Mrs Habermann's superannuation fund. A further tax consideration is that an award of this kind accelerates access to funds which would not yet have been available, unless accessed early and taxed as a lump sum. These considerations, inherently unlikely to be eased by decreases in the future taxation of superannuation, cannot be allowed for with mathematical precision. However, the approach of applying the employer contribution percentage to net, rather than gross, income makes sufficient approximate allowance for them to give rise to a fair award for the superannuation component of past and future economic loss.
[354] I have therefore taken that approach here.
[229]
Interest on past economic loss will be $97,903.30
[230]
[356] The amount of past economic loss attracting interest should be reduced by the apparently agreed total statutory benefits of $107,437.38 and total income protection payments of $103,691, being amounts Mrs Habermann had the benefit of. The total past economic loss attracting interest is:
[357] The relevant interest rate is 4.12%, per s 306N. Mrs Habermann's loss commenced and accumulated variably from 23 August 2017 to the present, a period of 8.019 years. It is common ground it is appropriate to halve the interest calculation to allow for it being interest on an accumulating figure. Accordingly, the interest on past economic loss is calculated as:
[233]
.0412 interest x 0.5 x $592,665.86 loss x 8.019 years = $97,903.30
[359] It is also agreed the refund to be deducted from the damages total is $141,721.47.
[237]
[360] For the purposes of calculating Mrs Habermann's future loss of earning capacity I will adopt the net weekly income of $2,834.71 I have found she would presently be receiving but for the injury.
[361] As to superannuation the statutory minimum is now 12 per cent. Applying that to the above net weekly income gives weekly superannuation of $340.17.
[362] I will accordingly apply a notional weekly loss of:
[238]
[363] Mrs Habermann will turn 48 in three months. Considering the commitment she exhibited to her career, I will assume she would have continued working full time until age 67. That is approximately a further 19 years, which attracts a statistical multiplier of 646.2 on the 5 per cent tables for the present value of $1 per week.[79]
[364] I have found there should be a 30 per cent discount on future economic loss for contingencies.
[365] Those figures give rise to the following calculation of future economic loss:
[239]
[366] It is clear on the evidence that Mrs Habermann will incur significant future expenses in the medical management of her condition. Mrs Habermann's quantum statement dealt in detail with her likely future expenses and outlays, arriving at a claim calculated as follows:
[240]
$149.10 per week x 910 (multiplier on 5 per cent tables for remaining years of life expectancy) = $135,681.
[241]
[367] The data underlying the estimate of weekly costs was not seriously challenged. Rather the Council correctly emphasises the effect of Dr Likely's evidence is that, with the progression of time, a substantial component of those medical expenses would have been incurred in any event.
[368] Mrs Habermann's counsel acknowledges the need to significantly moderate the allowance attributable to the injury in this case and contends for an estimated global sum of $25,000. Council contends for a global sum of $15,000.
[369] It will be recalled that Dr Likely's evidence was qualified by the ongoing, unremoved character of the stressor which featured in this case and its contribution to Mrs Habermann's well entrenched incapacity. Yet even if Mrs Habermann's future expense needs related solely to this case only lasted for another three or fours years, that would attract multipliers on the five per cent tables of either 145.6 or 189.6, giving a present day value of:
[242]
[370] The award contended for by Mrs Habermann is within that range. I deploy this example not to suggest it should provide my assessment but to bring an illustrative sense of proportion to an inherently imprecise process. Given the lasting character of this case's stressor, the treatment needs provoked by it will likely continue well beyond the next three to four years. However, those needs will continue to coalesce, as they may already have started to do, with treatment needs that would have arisen in any event. The above example demonstrates that the award sought by Mrs Habermann presents as a reasonably proportioned attribution of her future treatment needs to Council's negligence.
[371] In my assessment $25,000 should be awarded on a global basis as the award for future special damages.
[243]
[372] It follows the assessment of total damages is as follows:
[244]
[373] Damages should be awarded in the amount of $2,359,037.64. It will be necessary to hear the parties as to costs if costs are not agreed.
[374] My orders are:
Judgment for the Plaintiff in the amount of $2,359,037.64.
I will hear the parties as to costs, if costs are not agreed in the meantime, at 9.15am 12 September 2025, out of town parties having leave to appear by videolink.
[245]
[1] Gungarde Community Centre Aboriginal Corporation.
[77] Note there is no starting presumption of a so-called usual or standard discount of 15 per cent - see Qantas Airways Limited v Fisher[2014] QCA 329, [74].
[272]
[78] This figure was agreed as if the judgment would be handed down several weeks earlier than now but the likely difference is so negligible that the agreed figure is adopted.
[273]
[79] Luntz and Harder, Assessment of Damages for Personal Injury and Death, 5th ed, p1131.
Parties
Applicant/Plaintiff:
Habermann
Respondent/Defendant:
Cook Shire Council [2025] QSC 214
Legislation Cited (1)
Compensation and Rehabilitation Act 2003
Cases Cited (6)
(1985) 39 SASR 57
(2005) 222 CLR 44
(2000) 205 CLR 254
(2001) 207 CLR 562
(2002) 211 CLR 317
(1980) 146 CLR 40
[6] To aid determination of the scope of Council's duty of care it is useful to consider the alleged path of causal connection as between the alleged want of care and the damage suffered.[3] In this case that requires consideration of the context in which the existence of the fabricated email emerged, how it was responded to by Council, how its tabling in Parliament was a necessary cause of Mrs Habermann's injury and whether there was a foreseeable risk that Mrs Habermann would suffer a psychiatric injury from the perpetuation of the fabricated email in the public domain.
[7] It became clear by the close of evidence that a necessary causal step in the infliction of injury was the tabling of the fabricated email in Parliament by Mr Pyne. Self-evidently Council had no control over the decision-making of Mr Pyne. However, there may have been protective steps Council could and should have taken earlier, making it unlikely that those relying on the fabricated email would have persisted, in turn making it unlikely the fabricated email would have been provided to and tabled by Mr Pyne.
[8] In considering the path of causal connection these reasons will not dwell upon Council's alleged failures to take some protective steps which, as Mrs Habermann's counsel acknowledged,[4] fell out of contention as the case progressed. By closing addresses, the potential protective steps attracting particular focus were steps to reveal facts demonstrating the falsity of the fabricated email to the director of the cruise business, Mrs Pamela Roberson and the CEO of Gungarde, Mr Greg Whittaker.[5] These reasons conclude the fabricated email would not have been perpetuated in the public domain if Council had taken those steps.
[9] Mere proof of a path of causal connection does not prove liability in negligence. It will remain necessary to determine the scope of the duty of care, whether it was breached and whether causal responsibility for the damage ought be attributed to Council.
[10] Determination of liability will accordingly involve consideration of the following issues:
Is the imposition of a duty of care precluded because the injury resulted from the conduct of third parties beyond Council's control?
In what context did the existence of the fabricated email emerge?
What was Council's response to the promulgation of the fabricated email?
How was the tabling in Parliament a necessary cause of Mrs Habermann's injury?
Would the tabling in Parliament have occurred if Council had demonstrated the falsity of the fabricated email to Pamela Roberson and Greg Whittaker?
Was there a foreseeable risk, prior to the tabling, that Mrs Habermann would suffer a psychiatric injury from the perpetuation of the fabricated email in the public domain?
[17] In Chomentowski,[12] an employee successfully sued an employer in negligence after being attacked by robbers when he was trying to lodge the takings of the employer's business late at night at a bank's night safe. It was held the foreseeable risk of such robbery could have been avoided by not exposing the employee to it, for instance by providing the employee with an armed guard or retaining the takings in a safe at the employer's premises for banking the following day.
[18] In Sartori,[13] the employer bus company was held liable in negligence after an employee was attacked by an intruder through an unlocked gate to the company's employee carpark. To guard against the foreseeable risk of trespass by criminals the employer secured the carpark with perimeter fencing topped with barbed wire, accessed by a lockable gate with a newly installed lock. It breached its duty of care by failing to ensure the lock was operating.
[19] In Fraser,[14] a female bus driver was required to 'lay over' in a secluded spot where she was dragged from the bus and attacked. There had been previous attacks. Her employer was found to have breached its duty to take reasonable steps to safeguard the driver from such an attack, like providing security at the lay over spot or changing its location.
[20] Note that in none of those cases did the employer have the power to control the conduct of the third party. In this, the exception to the general rule provided by the employer/employee relationship is different from some other special relationships. Compare the example, cited by Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil,[15] of a gaoler owing a duty to protect a prisoner from attack by another prisoner. In that example the gaoler has the power to control the conduct of the other prisoner. At best the employer in the employer/employee cases cited by Gleeson CJ had the power to control the taking of steps to mitigate against the risk of attack upon an employee by a third party. It was a failure to take those protective steps which constituted the relevant breach in each case. In this context, it is to be appreciated that the object of the employers' duty of care is the avoidance of foreseeable risk to its employees. That taking reasonable steps to try and avoid such risk may not guarantee success does not eliminate the existence of the duty.
[21] Council's argument would have it that even if there are reasonable protective measures an employer can take to mitigate against the foreseeable risk of injury posed to employees placed in the path of third party harm because of their employment, the employer has no duty to act because it has no legal power of control over the third party. This ignores the notorious fact that the potential misconduct of third parties can be materially influenced, including deterred, by protective measures taken by others who have no legal power of control over them. It also ignores that employees are vulnerable to such harm because they are employed by the employer.
[22] It is the nature of the power relationship as between employer and employee, not the employer's power over third parties, which justifies the exception to the general rule identified by Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil.[16] In that relationship there is a power imbalance, with the employee in the vulnerable position of acting in service of the employer.
[23] An employee's service of an employer may potentially place the employee at foreseeable risk of harm from a third party. For example, a road worker at a road works site may be put at foreseeable risk of physical harm by a third party, such as an inattentive driver. A bank teller may be put at foreseeable risk of psychiatric harm by a third party, such as a terrorising bank robber. In such cases the employer has no legal power of control over the third party but that does not mean the employer is unable to take steps to mitigate against the risk of the third party harming its employee.
[24] Where an employer holds the power to take reasonable protective steps to avoid the foreseeable risk of injury posed by third parties to its employees, in their capacity as its employees, then the employer's duty of care to its employees requires it to take such steps. What if any protective steps are reasonable to take will inevitably depend upon the individual circumstances of the case, including how onerous the steps may be relative to the magnitude of the risk and the apparent probability of the steps influencing the third party's conduct.
[25] Before turning to the circumstances of this case, I note Council's Third Further Amended Defence denied the pleaded duty because 'any such duty would be inconsistent with the law of defamation'. Also, Council's written outline of submissions asserted, citing passages in Tame v New South Wales,[17] Council should not be found liable because any duty owed would be a duty to guard against what non-employees might publicly say about Mrs Habermann 'which may have been inconsistent with the law of defamation'. However, the denial and the assertion attracted no actual submissions from Council.
[26] The existence of the law of defamation does not preclude the imposition of the duty of care contended for here. The passages cited in Tame derived from the principles which denied the existence of a duty of care in Sullivan v Moody.[18] The potential incoherence of law with which those passages and principles were concerned was the imposition of a duty of care upon persons or entities which would be incompatible with other duties owed by a defendant.[19] Council has not identified any duty it held which would be incompatible with it having a duty to take reasonable protective steps to avoid the foreseeable risk of psychiatric injury posed to Mrs Habermann as its employee by third parties perpetuating the fabricated email in the public domain.
[27] The only arguable basis faintly raised in the course of this case to suggest that Council's duties or obligations obliged it to refrain from reverting to Mrs Roberson and Mr Whittaker with information demonstrating the fabricated email was fabricated, was privacy, but her privacy was only at risk if the email was perpetuated in the public domain. This provided yet a further reason for Council to revert to Mrs Roberson and Mr Whittaker. They already had the fabricated email. Privacy concerns were therefore of no application in communicating further with them about it, but provided ample reason to do so, so as to mitigate against the perpetuating of the email in the public domain by them or their associates.
[33] Mrs Habermann's presence had been requested to explain procedural processes. She explained the process was that the lease should be put to public tender. That she provided such advice is unremarkable given the lease was an income generating public asset and a lease of 10 years was mooted. As she explained in evidence, there can be exemptions, but the orthodox course is to put such an asset to public tender. In the years to come, that provision of bureaucratically orthodox advice may have identified her as an illogical target of resentment by persons who perceived that Cayman Cruises' travails could have been solved back when Gungarde showed interest.
[34] Mr Whittaker advised his board against buying Cayman Cruises' business in the absence of the assurances he had sought from Council. As for Cayman Cruises, Mrs Roberson had made repeated written requests on its behalf to Council seeking waiver of outstanding rate and rents owed and advising the business was up for sale.[20] The requests had gone unanswered by Council so she complained to the Ombudsman.
[35] Mrs Habermann was unaware of these unanswered requests and only came to know of that problem incrementally through August and September 2013. In that era she learned Mrs Roberson had complained to the Ombudsman and then spoke with Mrs Roberson and went through the letters Mrs Roberson had forwarded to the Ombudsman's office.
[62] Mrs Habermann's email asked that the content of any email she had sent on 13 and 16 September 2013 be established. She explained if it did exist in the community, it would not be in its original form, would have been altered and the metadata of the altered email should evidence any changes.
[63] Mr Cronin, who had returned from leave four days after Mrs Habermann's email of 14 September 2016, testified he appreciated her email's significance, allegations of racism being extremely serious and incredibly damaging against the person they are made about. He testified this impact was amplified in a small community like Cooktown with a high Indigenous population, with which Council had strived to maintain a harmonious relationship. It had not come as a surprise to him that Mrs Habermann had found what Mr Martin told her incredibly distressing.
[64] Because Mr Cronin was the Chief Executive Officer of Council it is logical to treat his knowledge of relevant circumstances in this case as constituting corporate knowledge, that is, the knowledge of Council. Council did not contend otherwise.
[65] Council was thus forewarned, not only of the possible existence of a fabricated email but also of the potential for its existence in the community to cause significant distress to Mrs Habermann. It is not suggested Council took any substantial steps in response to Mrs Habermann's email to it of 14 September 2016. However, at that stage Council did not have the email which Mr Martin had told Mrs Habermann about. That changed in February of the following year when the fabricated email was deployed in the debt claim.
[71] On 22 February 2017 Samantha Taylor emailed document 49A to Narelle Dukes, cc'g CEO Tim Cronin. Ms Taylor wrote she was unsure how Mrs Roberson came to possess the email but could not see how it could affect the debt claim.[33] Council was now in possession of a copy of the fabricated email. Given the content of Mrs Habermann's distressed email to Council of 14 September 2016, Council would have realised it was the document referred to by that email. It thus already knew Mrs Habermann denied having written such a document and had been distressed by the allegation that she had.
[81] If genuine, the email cried out for explanation and apology to Mr Whittaker. If fabricated, the fact it was fabricated cried out to be communicated back to Mr Whittaker as soon as possible, before its existence was broadcast. Either way, it is obvious Mr Cronin realised it was strongly in Council's interests and Mrs Habermann's interests that he revert to Mr Whittaker as soon as possible. The risk of Mr Whittaker choosing to promulgate the fabricated email if he did not do so was also obvious.
[82] It is therefore obvious Mr Cronin would have known Mr Whittaker expected he would revert to him about the investigation of the fabricated email.
[83] Mr Cronin did not get back to Mr Whittaker. On Mr Whittaker's recollection he did email Mr Cronin at least a couple of weeks later seeking an update but received no response. Anyway, Mr Cronin needed no prompting to get back to Whittaker. As just explained, he knew it was very important to do so as soon as possible.
[84] No credible explanation has been advanced for the failure to do so.
[143] The point is significant because, it was Council's ensuing failure to so communicate with them that prompted the disclosure of the fabricated email to Mr Pyne MP.
[191] Dr Likely's evidence acknowledged that Mrs Habermann's had a past pattern of stressors causing decompensation and the seeking of psychiatric assistance by her. He unsurprisingly acknowledged such decompensation could have recurred in the future, regardless of steps taken by Council. Council argued that evidence pointed to a failure in proof of causation. It does not. That is because decompensation of the kind which had previously occurred was plainly not as extreme or long lasting as what occurred here, or in response to a stressor of such an extreme kind.
[192] On 3 November 2017 Dr Van Der Meer sent a letter to Queensland Local Government Work Care Scheme stating Mrs Habermann's symptoms:
[206] That point is relevant to the evidence of Ms Leigh as well. In cross-examination of Ms Leigh, Council's barrister explored with her whether, if she had seen exhibits 23 and 26, it would have made any difference to whether she would have gone to Mr Pyne. In each instance she looked only briefly at each exhibit, explaining that she had seen them about a month ago. For the reasons just discussed, and the ensuing reasons, I give no weight to her responses on the topic.
[207] Exhibit 23 is the email Mrs Habermann sent on 14 September 2016 to Mr Cronin and others, describing what she had been told by Charlie Martin in his phone call about the email - implicitly the fabricated email - of which he had been told. Ms Leigh was asked if she had been shown that email before she went to Mr Pyne whether it would have made any difference. It is to be appreciated she had given Mr Pyne a dossier of other information, not merely the fabricated email. She asserted she would still have 'given him all the evidence I had, which would have included that email'. However, when asked whether she would have told Mr Pyne that she did not accept what Mrs Habermann wrote, she responded, less definitively:
[211] That conclusion is not undermined by the fact Ms Jerome had been the first person to have given Ms Leigh the fabricated email. Ms Leigh well knew the context in which that had occurred was part of the process of Mrs Roberson being supported by them in respect of the debt case. The strength of the connection with the case is apparent in the content of Mrs Roberson's statement of 7 July 2017 about releasing documents, a statement I have found was likely created to validate Ms Leigh's possession of documents including the fabricated email.
[212] Even if Mrs Roberson did not provide her statement of 7 July 2017 to Ms Leigh or do so appreciating it was for her intended dealings with Mr Pyne, it is unlikely that Ms Leigh would have provided the fabricated email to Mr Pyne. That is because if Council had reverted to Mrs Roberson, as it had undertaken to do, and revealed the facts demonstrating the fabricated email was a fabrication, as it easily could have done, Ms Leigh would inevitably have been told of that fact. Her motivation to deploy the fabricated email, as part of her promulgation of documents unfavourable to Council, would consequently have been eliminated. Further, the realisation of her suspicious proximity to the person or persons who had apparently been engaged in such wrongdoing would have deterred her from being involved in publishing the email. She would not have provided the fabricated email to Mr Pyne.
[219] Indeed, even if Council had not reverted to Mr Whittaker directly, and only reverted to Mrs Roberson, it is likely Ms Leigh and Mrs Roberson would have informed him of Council's reversion and provision to Mrs Roberson of the facts demonstrating the fabricated email had been fabricated. That is likely because they had previously communicated with Mr Whittaker about the fabricated email. In such circumstances Mr Whittaker is also unlikely to have provided his statement to Ms Leigh.
[225] In my conclusion, on the balance of probabilities the fabricated email would not have been perpetuated in the public domain if Council had reverted to Mrs Roberson and Mr Whittaker, as expected, and had revealed to them, as it so easily could have, that the facts demonstrating the fabricated email had been fabricated.
[238] Moreover, she was doing so at a stage when she had requested, and expected there would be, an independent investigation by an IT expert - an investigation which would readily demonstrate she was not the author of the fabricated email. She was not to know Council would botch that process. Further, at the time of writing her stoic email, Mrs Habermann wrongly understood from Mr Cronin's re-assurance of her that his meeting with Mr Whittaker had been successful in dealing with Mr Whittaker's concerns about the fabricated email.
[239] The tendency of Council's behaviour to have lulled Mrs Habermann into a sense of false security continued as time wore on. Mr Cronin did not tell Mrs Habermann what had happened at the settlement conference. He told her the independent report had found the fabricated email was not in Council's system but did not tell her the report's conclusions were obscurely expressed. He did not give her a copy of the report. He did not tell her Mrs Roberson and Mr Whittaker each expected Council to revert to them. He did not tell her Council had failed to do so.
[240] Mrs Habermann was thus led to believe the crisis had passed and all was well, when in fact, Council had so botched the process of dealing with the fabricated email as to make it inevitable that the document would find its way into the public domain.
[246] Council knew that if the fabricated email was made public, a high proportion of the public would inevitably assume the fabricated email was genuine.
[247] Council knew the section of the public likely to pay most attention to publicity of the fabricated email would be residents of the Cook Shire, particularly residents of Cooktown.
[248] Council knew Mrs Habermann had long lived in Cooktown, settling, marrying and raising a family there. It knew Cooktown was home to her.
[249] Council knew Cooktown was a small community. It knew Mrs Habermann could not and did not live an anonymous existence there. It was inevitable that many local people would know her to be the author of the fabricated email so that she would carry the crushing opprobrium of that knowledge whenever she ventured into the community.
[250] Council knew Cooktown had a high proportion of Indigenous residents. It was inevitable many of them would perceive her as the racist who authored the fabricated email.
[251] Council knew a significant component of Mrs Habermann's job involved working with and preserving the trust of Indigenous people and agencies. It was inevitable that trust would be lost.
[252] Council knew the fabricated email did not exist in its email system. It also knew, or acting reasonably should have known, of the array of other facts demonstrating it was a fabrication.
[253] It follows Council knew that if the email was broadcast to the public, it would have a devastating impact upon Mrs Habermann's working and private life as she knew it in Cooktown. Council also knew that devastating impact would be aggravated by an excruciating injustice, known to Mrs Habermann but not the community in which she lived. That injustice was that she had been malevolently targeted and was innocent of authoring the very document that stood to devastate her life if perpetuated in the public domain. The known circumstances were collectively so extreme that there was a foreseeable risk, that is, a risk of which council knew or ought reasonably to have known, of any employee in Mrs Habermann's position suffering a psychiatric injury if the fabricated email was perpetuated in the public domain.
[254] I find there was a foreseeable risk, prior to the tabling, that Mrs Habermann would suffer a psychiatric injury if the fabricated email was perpetuated in the public domain.
[261] Council knew, or acting reasonably should have known, that the fabricated email had not been authored by Mrs Habermann and she had been maliciously targeted by the fabricators of the email, because she was Council's employee. More specifically, it should have realised Mrs Habermann was targeted because she had some involvement in Mrs Roberson's request to Council for rent and rates relief and in Mr Whittaker's meeting with Council about Gungarde potentially taking over Cayman Cruises' lease.
[262] Council had to have appreciated the content of the fabricated email was controversial and there was a real risk of it being broadcast to the public.
[263] Council knew Mrs Habermann was in a position of special vulnerability. She did not have the power to investigate Council's email system to demonstrate she had not authored the fabricated email. Council would not delegate such a power to her. She had to be kept at arm's length from the investigation because the fabricated email evidenced serious misconduct by her if she had been its author. It was Council which had the power to arrange for an investigation to be conducted.
[264] For the same reasons Mrs Habermann was powerless to advocate and demonstrate the falsity of the fabricated email to those who had raised it with Council, namely Mrs Roberson and Mr Whittaker. Again, it was for Council to so advocate and demonstrate. Council could have been in no doubt about this. Council was the plaintiff in the case in which Mrs Roberson had raised the fabricated email and it was its CEO, Mr Cronin, who Mr Whittaker had raised the fabricated email with.
[265] In State of New South Wales v Napier,[72] where a prison worker suffered psychiatric injury as a result of the threats and actions of prison inmates, Spigelman CJ considered that case's combination of the inter-related elements of vulnerability, control and assumption of responsibility created a relevant duty of care. Those elements are inter-related here.
[266] Mrs Habermann's vulnerability to the devastation of her reputation by the potential perpetuating of the fabricated email in the public domain was all the greater because it was Council, not her, which had control of the steps needing to be taken to try and protect her. It was within Council's power to investigate the fabricated email, gather the facts demonstrating it was fabricated and reveal those facts to Mrs Roberson and Mr Whittaker, to mitigate against the risk of the fabricated email being perpetuated in the public domain.
[267] It may be accepted that Council's assumption of responsibility for investigating the fabricated email and raising an expectation it would revert to Mrs Roberson and Mr Whittaker about what it learned, did not mean it had a duty to do so. That it made such a choice merely bespeaks Council's obvious awareness that it owed that assumption of responsibility, and its competent execution, to an employee who had been maliciously targeted in her capacity as Council's employee and was beholden to her employer to try and protect her.
[268] To adopt the language of Lord Atkin's seminal judgment in Donohue v Stevenson,[73] Mrs Habermann was a person so closely and directly affected by how Council responded to the provision of the fabricated email to it by Mrs Roberson and Mr Whittaker that Council ought reasonably have had her in contemplation as being so affected when directing its mind to its response.
[269] Council knew there was a risk of the fabricated email being perpetuated in the public domain and it knew that risk would be heightened if Council did not reveal the facts demonstrating it was a fabrication to Mrs Roberson and Mr Whittaker.
[270] Of course, there could be no guarantees from Council's perspective that the fabricated email would not make its way into the public domain even if it did revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email. But it was obvious that if it did not do so the risk of that occurring, with inevitably devastating consequences to Mrs Habermann, was much higher. Mitigating against that risk by doing so was an obvious protective step to take in Council's exercise of its duty to take reasonable care to avoid exposing its employee, Mrs Habermann, to unnecessary risk of injury.
[271] This accumulation of circumstances amply demonstrates why it is appropriate for the scope of Council's liability to extend to the injury caused by its below discussed breach of its duty of care.
[272] I find the scope of Council's duty required it to take reasonable steps to avoid the perpetuation of the content of the fabricated email in the public domain and that such steps included revealing the facts demonstrating the falsity of the fabricated email to Mrs Roberson and Mr Whittaker in a timely way. It is inherent in that scope that Council should do what was reasonably necessary to be able to reveal facts in such a way as to demonstrate the falsity of the fabricated email.
[280] Council submitted that it was in an invidious position because any course of action it took carried the risk in effect of provoking the perpetuation of the fabricated email. It is unnecessary to consider that submission by reference to the alleged failures to take protective steps which fell out of contention as the case progressed. The submission may have been pertinent to some of those alleged failures, but it must be rejected in respect of its application to the failure to reveal to Mrs Roberson and Mr Whittaker the facts demonstrating the email was fabricated. As these reasons have explained, choosing to revert to those persons in that way would lower risk and choosing not to do so would heighten risk.
[281] In the circumstances I readily conclude a reasonable person in Council's position would have reverted to Mrs Roberson and Mr Whittaker and revealed the facts demonstrating the falsity of the fabricated email to them, in a timely way.
[282] As to s 305B(2), it requires that in deciding whether Council as a reasonable person would have taken precautions against risk of injury, the court consider the probability that the injury would occur if care were not taken, the likely seriousness of the injury and the burden of taking precautions to avoid the risk of injury. As I have explained, failure to revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email to them, in a timely way, heightened the probability of perpetuation of the fabricated email in the public domain and thus the probability of the occurrence of injury. Council's own CEO at the time has testified the consequences would be devastating to Mrs Habermann. I have found that psychiatric injury to her or any employee in her position was a foreseeable consequence because of how objectively extreme the circumstances were.
[283] In the face of all this the burden of taking precautions to avoid the risk of injury merely involved Council doing something which was as much in its interests as it was in its employee's. Mrs Habermann had, in her email of 23 February 2017, spoon fed Council in demonstrating how easy it could be for Council to assemble facts demonstrating the falsity of the fabricated email and in turn reveal those facts to the very people who expected it would do so. The burden of doing so was light. It is extraordinary that Council botched what should have been such a simple exercise.
[284] I find Council breached its duty of care to Mrs Habermann to revert to Mrs Roberson and Mr Whittaker and reveal the facts demonstrating the falsity of the fabricated email to them, in a timely way.
[298] Mrs Habermann feels overwhelmed by the simple task of engaging with parents to prepare food for the local swimming club of which her children were members. She is socially withdrawn and limits her infrequent social engagements to the company of trusted family and friends. Her persisting anxiety symptoms include a pervasive sense of apprehension, fear and worry, a subjective sense of being unable to control the worry and associated feelings of being keyed up, on edge, restless, having poor concentration and procrastination.
[299] Mrs Habermann's husband has had to assume much of the burden of the concrete aspects of family responsibility. He described the need for her to maintain a simple regime, to be at home most of the time and avoiding the surrounding stress and anxiety of crowds, having to perform particular tasks under the pressure of a deadline or while juggling other tasks. He explained she becomes overwhelmed if she cannot take each task at a time and work at her own pace.
[300] Mrs Habermann developed a regimented protective and isolated routine. When there is any occurrence out of the routine, she becomes stressed, perceiving she is under attack, feeling intense symptoms of anxiety, apprehension and worry. She feels stable as long as she can live within the boundaries that she has created for her existence.
[301] She is conscious her husband 'misses the old me' and she is 'not the same person he married'. Her husband testified Mrs Habermann is not the same person that she was. He lamented that his younger children will never know the woman who was able to do so many things, be a working mum, progressing a career, doing her studies, providing an example to their daughter of high achievement and on the weekends pursuing her leisure interests such as woodwork projects.
[302] Mrs Habermann takes medication to help her sleep and to aid her psychiatric symptoms. She used alcohol to excess for a prolonged period but eventually sought assistance and became abstinent.
[303] Mrs Habermann lacks motivating plans for the future, feeling terror whenever contemplating the prospect of further study, such as in law or psychotherapy. She feels a sense, not only of loss, but of a void in her life, consistent with persisting symptoms of depression.
[311] Mrs Habermann enjoyed significant professional progression in roles of growing corporate responsibility at Council.[76] She was appointed to the position of Business Services Co-ordinator in January 2010 and her position was upgraded to that of Business Services Manager in 2012. In 2015 she was appointed to the position of Governance and Risk Manager. That trajectory powerfully supports the inference that, but for the events with which this case is concerned, Mrs Habermann had good prospects of further promotion within Council's senior levels.
[312] That inference is also supported by the evidence of Mr Cronin, the CEO to mid-2018. He testified Mrs Habermann, who had reported directly to him, was very motivated, passionate, intelligent and committed in her work. He considered she had enormous potential in her career trajectory.
[318] Those considerations will substantially moderate the assessment of Mrs Habermann's special damages for likely future medical expenses attributable to the Council's negligence. They will also moderate the assessment of future loss of earnings, but not nearly to the same extent. That is because, despite Mrs Habermann's recurring need for psychiatric assistance and medication, there was no evidence that her symptoms had impaired her work capacity or performance, even in those past instances where workplace stressors had triggered her medical attendances.
[319] In cross-examination Dr Likely explained of Mrs Habermann's pre-existing psychiatric problems that if, hypothetically, she had presented to him with decompensation on exacerbation of her pre-existing condition, he would have expected his care of her to last for 12 to 18 months before her return to her primary care GP. That prompted this exchange in cross-examination:
[328] I will below find Mrs Habermann would likely have been promoted in February 2020. The reasons supporting that conclusion also make it likely that even if that did not happen then, it was likely to happen in the near future. Of course, the unpredictable slings and arrows of life, including the impact of her recurring psychiatric problems, may have caused it to not happen. They may also have caused her to cease work entirely, albeit that her demonstrated resilience in her work suggests that is unlikely in the absence of another objectively traumatic life event having occurred. However, these are considerations properly considered in arriving at an appropriate contingencies discount for past economic loss in all the circumstances of the case.
[329] It is a significant consideration that Mrs Habermann's vulnerability to stressors had not interfered with her work capacity prior to the events of this case. These events were objectively traumatic, materially more extreme than the apparently mundane stressors which previously triggered Mrs Habermann's seeking of psychiatric assistance without interfering with her work. There is no evidence of any other such traumatic stressors arising in Mrs Habermann's life since, although her private life since has been substantially different from the private life she would have been living but for these events. Moreover, because she has not been in employment with Council, there cannot be certainty as to whether there may have been other traumatic stressors arising in connection with her employment.
[330] Some discounting allowance should be made for the possibility that other traumatic stressors may have arisen and impacted Mrs Habermann's capacity to be able work or impacted her capacity for the levels of work performance and career progression maintained by her previously.
[331] In my conclusion the contingencies discount for past economic loss should be 10 per cent here.