JUDGMENT
1 HIS HONOUR: Zoran Miskovic, the plaintiff, suffers (or suffered) psychiatric conditions, being a Major Depressive Disorder (MDD) and Obsessive Compulsive Disorder (OCD), which has rendered him unfit to work. The psychiatric condition was precipitated by his employment as a security guard with the defendant, Stryke Corporation Pty Ltd t/as KSS Security (KSS). As a result, Mr Miskovic sues KSS for damages, alleging a breach of the common law duty of care (negligence), and misleading conduct in contravention of s 53B of the Trade Practices Act 1974 (Cth).
2 Usually, in determining proceedings of this kind, and, in particular, determining liability, the Court, at least as presently constituted, would examine first the existence and content of the duty of care, then determine whether there has been a breach, and thereafter determine whether the breach has caused an injury and, if so, to what extent. In this case, the injury is relatively uncontroversial (although there are differences as to its severity) and, at least on the expert evidence, it is also uncontroversial that employment precipitated Mr Miskovic's psychiatric condition.
3 As a consequence, the Court will first deal with the medical condition, its cause, the effect on Mr Miskovic's employment and then with liability, including breach of the duty of care. The Court will conclude with the effect of the foregoing on the calculation of damage, if any.
4 This is one of those cases, where it seems helpful to consider first the damage suffered, then the particular want of care alleged against the defendant, and thereafter examine whether that damage, caused by that want of care, resulted from the breach of duty, in order to reveal the scope of the duty alleged: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 at 290, [105], per Hayne J. Before undertaking that analysis, the Court needs to establish the facts and deal with the evidence, other than the medical evidence. The evidence is in short compass and is not particularly controversial.
The plaintiff, Mr Miskovic, and his work conditions
5 The background of the plaintiff, Mr Miskovic, is not typical, but not uncommon. He was born in Nova Gradiska, Croatia in 1980, migrated to Australia at aged 10 and moved back to Serbia from 1994 to 1999. He did not finish primary school, but on his return to Serbia attended technical College and did relatively well (fourth or fifth in a class of 30) and completed his training.
6 Mr Miskovic returned to Australia in April 1999, where his father already lived. In or just after May 1999, Mr Miskovic applied for a job with KSS; contact having been arranged through an advertisement in the newspaper, Novisti. This was his first job in Australia.
7 Before being employed by KSS, Mr Miskovic was in good health. He was aged 19. He had been trained in martial arts, swam and kept in shape. In Serbia, Mr Miskovic believed he was an open kind of person, knew almost every passer-by in his town and had a few good friends.
8 After the initial contact, Mr Miskovic, at the insistence of KSS, attended a basic training course at Parramatta. The two-week course involved first aid and very basic aspects of security work, and enabled Mr Miskovic to obtain a licence sufficient to undertake employment at KSS.
9 After the two-week course at Parramatta, Mr Miskovic underwent a two-week on-the-job training program; each week with a different person. During the course of that two-week on-the-job training program, the trainers explained to Mr Miskovic the necessary paperwork that was required and Mr Miskovic accompanied the trainers to a number of jobs, some of which were to be on Mr Miskovic's security route.
10 Not every job on the eventual route undertaken by Mr Miskovic was visited during the training programme, but the training programme, as already stated, included some of the premises to be inspected/guarded and included Mr Miskovic becoming acquainted with the general duties associated with the job he was to undertake. There was no psychological testing for Mr Miskovic prior to employment, or at all.
11 I have, quite deliberately, omitted recounting one or more meetings between Mr Miskovic (and/or his father) and KSS during which employment was offered and accepted. The comments at one or more of these meetings form the basis upon which Mr Miskovic claims a contravention of the Trade Practices Act (Cth). There is some controversy about the statements made during the course of these meetings. The conversations in which the statements were allegedly made occurred in a language other than English.
12 There were telephone conversations between Mr Miskovic and KSS, and, it seems, between his father and KSS. Because Mr Miskovic did not have a motor vehicle licence in Australia, he was required to perform work for KSS on foot. The area he was required to patrol was in North Sydney, bounded by the Pacific Highway, Miller Street, Berry Street (both sides) and Arthur Street. While that may have been known to KSS at the time of the commencement of the conversations with Mr Miskovic and his father, neither Mr Miskovic nor his father knew it at that time. Mr Miskovic learnt of it before he commenced work and the details of it during his on-the-job training and immediately thereafter.
13 According to both Mr Miskovic and his father, during the course of the pre-employment conversations, one or other of them asked whether the job was safe and was assured that there was no danger. I will return to the terms of these conversations and the effect, if any, on liability under the Trade Practices Act (Cth), as a separate matter.
14 Unsurprisingly, Mr Miskovic initially did not recall all of the premises that he was required to patrol. Nevertheless, it is accepted that, once he was first employed on his foot patrol (i.e. after the on-the-job training), he was required to work five nights per week from 7.30pm until 3.30am (i.e. eight hours). While there is some dispute as to whether breaks were taken, he was entitled to a break and there were occasional meetings.
15 His father described his attitude, on commencement and shortly thereafter, as "initially very happy" (Transcript page 216), even though Mr Miskovic testified to the fact that he was required to run to complete rounds, had to wait for police and got very stressed when behind in his work.
16 In November 1999, Mr Miskovic's hours of work were increased by one hour (Affidavit [49]) and Mr Miskovic finished at 4.30am after each shift. There were, according to Mr Miskovic, problems with malfunctioning doors, car park roller shutters malfunctioning, plant room leaks, alarm responses and "break and enters" into premises patrolled by Mr Miskovic. If there were a break and enter or an alarm response, according to Mr Miskovic, it was to be attended to immediately and, once at the premises, Mr Miskovic was required to call his supervisor or the control room for further instructions.
17 There was a point in time, between November 1999 and July 2000, in which, because Mr Miskovic "had to walk very fast and did not have any break" (Affidavit [52]), he developed blisters on his feet. Mr Miskovic resolved this problem by wearing more comfortable shoes, and the blisters, it seems, did not return. The blisters were, according to Mr Miskovic, the first sign of working too hard (Transcript page 95).
18 In July 2000, Mr Miskovic's hours of work were increased again by a further one hour and he was, as a consequence, given more duties. I find that the two increases in duties and hours of work were the subject of consent between Mr Miskovic and KSS and, further, I find that Mr Miskovic requested as many hours of work as possible, as a result of which these and the increases, described below, occurred.
19 In October 2000, the roster was altered to allow Mr Miskovic to work 10 nights sequentially and then four nights off, instead of the previously worked five nights of work, with two nights of break. On 22 December 2000, an additional four buildings were added to the patrol. In March 2001, there was a further increase in work and Mr Miskovic was (which practice commenced in December 2000) working from 6.00pm until 5.30am on each rostered day.
20 The evidence before the Court is that Mr Miskovic became extremely stressed when he was behind in his work. Mr Miskovic maintains that, in order to finish his rounds, he was required to run between the different premises. Exhibit A in the proceedings is a photographic log of Mr Miskovic's foot patrol. It includes a map of the area numbered with each of the calls required to be made. Further, there is a list of the 35 calls (in 16 individual buildings) contained in the patrol.
21 There is a discrepancy between the list of calls and the numbered map. Firstly, the numbered map contains only 33 calls (as distinct from 35 entries). Secondly the numbers do not correlate. For example, call number 34 was alleged to be at 111 Pacific Highway North Sydney, being a further call on the premises listed as call number 28. Call number 28, on the map, is not at 111 Pacific Highway. The discrepancy may be due to the list of premises to be patrolled being compiled for a different period of time than the period of time to which the map relates. I will assume, for the purposes of these reasons, the correctness of the list (i.e. the greater number of calls and the addresses for each call).
22 An analysis of the map in Exhibit A (corrected for the additional numbers and addresses) discloses a patrol route bounded as aforesaid: see [12] above. Using each North-South block as the equivalent of two East-West blocks along Mount Street (except the blocks between Little Walker Street and Arthur Street and Little Walker Street and Walker Street, which are calculated as half blocks), the patrol required Mr Miskovic to cover approximately 48 blocks, the longest trip being the equivalent of four blocks between 165 Walker Street and Elizabeth Plaza. The Court will allow a conservative figure of approximately 10 minutes for each 4-block equivalent, from which the Court can calculate a generous walking time of two hours for each shift. By generous, the Court refers to an overestimation of the time taken for each trip.
23 I will allow 10 minutes for each call, which, on the evidence before the Court, I consider to be an exaggerated figure for an ordinary inspection. Realistically, it seems more likely that each call would require five minutes only (plus the necessary travelling time). But allowing 10 minutes for each call (and 36 calls per shift), the amount of time spent on calls would be six hours, and the amount of time spent travelling would (again generously) be two hours. That would calculate rest periods (and periods during which alarms would have to be responded to) as a further two hours per shift.
24 In June 2001, according to Mr Miskovic, there were two to three alarm responses per week. The maximum distance that Mr Miskovic would cover on the foot patrol would be the equivalent of four blocks, which would take no more than approximately 10 minutes. Even if one were to assume the correctness of Mr Miskovic's estimate that each alarm response took 15 minutes, that would amount to 45 minutes per week. It is more likely that each response to an alarm, including travelling time, would take an average of 10 minutes, amounting to an average of 30 minutes per week or one hour for each 10-shift roster.
25 While Mr Miskovic, in his Affidavit at [68], says that he complained about having trouble finishing his shift, his demeanour in cross-examination (especially when giving the evidence recorded at Transcript page 30), suggested a qualification that he believed he had complained, it seems, informally. Further, there is a vast difference between "having trouble" finishing a shift (which I interpret as finishing the work in his shift) and an inability to finish it. On the contrary, when he commenced work, Mr Miskovic enjoyed his work, did well in his training course, was a person of some intelligence, was prepared to work hard and, because of his fitness, amongst other reasons, thought of himself as well-suited for the position.
26 With the exception of the events on 7/8 April 2001, and other explicable and particular occasions when delay occurred, there is no evidence that Mr Miskovic ever failed to complete the work assigned to him, and he asserts that he completed his rounds, as requested, every night: Affidavit at [73]. There is some evidence that occasionally Mr Miskovic returned from his patrol at a time later than was anticipated and/or expected, but, I find, not in circumstances where it caused Mr Miskovic to express formally his concern or to lodge a complaint. To the extent necessary, I find that Mr Miskovic, if acting reasonably, could have comfortably finished the work in each shift and still had breaks. This is corroborated by instances where Mr Miskovic was found asleep during his shift, and had made lengthy telephone calls to Croatia from clients' premises during the shifts.
27 Even though Mr Miskovic became depressed (admittedly precipitated, amongst other things, by his conditions of employment), at no stage, prior to July 2001, was Mr Miskovic, or his father, aware (nor had they considered) that his depression and other symptoms might possibly have been a consequence of his work. Yet Mr Miskovic submits that KSS ought to have been aware of that consequence or that possibility.
28 Mr Miskovic never came face-to-face with an intruder during the course of his employment with KSS. Nevertheless, he worried about that prospect. Other guards, it seems, had been in that situation. The system in place at KSS was that, if a guard, on inspection, were to discover evidence of forced entry into premises, the patrolling security guard was required to contact the Control Room and await other guards and/or police. Mr Miskovic implemented this system.
29 Where Mr Miskovic detected evidence of an insecure lock or insecure premises, involving a breach in the security of the perimeter of premises, the same system applied, but, occasionally, the persons in the Control Room would request that he examine the perimeter for any other evidence of illegal activities that may have led to the breach. Mr Miskovic understood that he could, if the circumstances were such that he felt uneasy about any such request, simply seek assistance, of the kind described. I find, as a fact, that the system, implemented by KSS, was to that effect and that Mr Miskovic was aware of the system.
30 In or about March 2001, Mr Miskovic had difficulty sleeping. He was suffering, he says, from stomach cramps and was very nervous. That nervousness, and the associated cramps, were aggravated, according to Mr Miskovic, when he was required to deal with a "break and enter".
31 According to Mr Miskovic, he informed his two supervisors, Mr Goran Milivojevic and Mr Bob Stanojevic, that he was not feeling well and was very nervous and stressed. It is informative to repeat the precise words of Mr Miskovic's affidavit:
"[76] I told Goran Milivojevic and Bob Stanojevic that I was not feeling well and I was very nervous and stressed. They did not reduce my workload. I told them I couldn't complete the work in the time they wanted it done. They just said ' If you can't do the work, you can't do the work. '"
32 The overall effect of the evidence of Mr Miskovic confirms the implication in the foregoing, namely, that if I were to accept that Mr Miskovic had made a complaint to his supervisors, it concerned his workload, not the nature of the work itself. And to repeat, this complaint would have been made in the context that Mr Miskovic completed all of the rounds allocated to him, with the ability to have breaks and the like and comfortably finish his work (see [26] above).
33 After March 2001, Mr Miskovic perceived that the break and enter incidents were more violent. However, there is no evidence that would support this perception, and I do not accept it.
The incident with the lift
34 On the weekend of 7/8 April 2001, Mr Miskovic was patrolling 56 Berry Street, North Sydney, entered the lift in the building, and the lift became jammed between levels B1 and B2. Apparently construction work was occurring in the building. There is little doubt, from the content of the story as told by Mr Miskovic, and from the manner of its telling, that Mr Miskovic panicked during this incident.
35 Mr Miskovic recalls that neither the up nor down button on the lift worked. The emergency telephone was faulty and the wires of the handset had been cut. Mr Miskovic felt that the lift had been sabotaged, deliberately, and says he was terrified. He started to shake, was breathing fast, his heart was pounding; he felt like he was choking; he was sweating, and his stomach was painful, presumably with cramps. Mr Miskovic says he tried to use his two-way radio (provided by KSS), but could get no reception. On his initial estimate given in evidence (i.e. in his Affidavit), Mr Miskovic was stuck in the lift from approximately 11.00pm until 6.30am, at which time the building contractors released him.
36 Mr Miskovic completed a report in the morning after being stuck in the lift, when he returned to the office. That report is unavailable, but there is indirect evidence as to its contents. Mr Miskovic says that the report notified KSS that he was "unable to finish anything that night due to getting stuck in a lift". In oral evidence, Mr Miskovic said that the lift became stuck at 10.00pm (not 11.00pm, as stated in his Affidavit).
37 Mr Milivojevic recalls that the content of the report was that Mr Miskovic had been "stuck in a lift at 56 Berry Street for 3 1/2 hours and was unable to finish the calls." Mr Milivojevic could recall the content of the report because it surprised him, as it was inconsistent with the earlier comment to him by a supervisor, Mr David Jones, that it had been a quiet night.
38 On the Monday following the weekend in which the incident occurred, namely, 9 April 2001, Mr Miskovic attended for work, but left early. On commencing work, Mr Miskovic was not feeling well, was nervous, and had stomach cramps. He says that he was frightened to do his work. On informing his supervisor and then Mr Milivojevic, Mr Milivojevic told him to take five days of leave to have a rest. Mr Miskovic then attended his medical practitioner and was prescribed Zoloft and Valium.
39 On his return to work, Mr Miskovic continued to be scared and his father accompanied him to and from work on each occasion. At work, Mr Miskovic was frightened, was sweating a lot, was shaking and shivering and considered that he had a fever. He says that he was terrified. This lasted for seven nights after his return, during which time he was unable to complete his allocated duties.
The reliability of Mr Miskovic's evidence
40 Much of the evidence in chief of Mr Miskovic was adduced through an Affidavit that was read, without objection. His evidence in chief was in that form because of the alleged difficulties associated with Mr Miskovic's conditions. He gave very limited evidence in chief orally and was then subject to cross-examination over an extended period. I make no criticism by the use of the word "extended". Indeed, counsel for the defendant and cross-defendant seemed to be extremely sympathetic to the difficulties being suffered by Mr Miskovic.
41 But those difficulties affected Mr Miskovic's evidence. Often, when asked a relatively simple question, Mr Miskovic was not content to provide a simple response, but insisted upon the provision of details that were unnecessary to the purpose of answering the question. I accept that this may not have been an attempt to prevaricate or to dissemble, but rather the effect of obsessive/compulsive behaviour.
42 Necessarily, to some degree at least, the plaintiff's case depends upon the evidence of Mr Miskovic. I do not consider that Mr Miskovic attempted to tell untruths or in any way deliberately misled the Court. However, his psychiatric conditions not only affected the way in which Mr Miskovic answered questions. It plainly affected a number of relevant aspects of his conduct and of his perceptions of his conduct and what was happening to him.
43 One of the obvious examples relates to overwork. I have calculated, very roughly, and in a manner favourable to Mr Miskovic, the time that it would take to walk his patrol and to inspect the premises required of him. I have factored in responses to alarms, and there were still times for a break. On the evidence of those witnesses called by KSS, his duties could have been performed in much less time than I have calculated. I accept their evidence.
44 The difficulty with any such calculation or estimate is that it does not factor into it the obsessive/compulsive behaviour of Mr Miskovic. Assuming, as I must, that Mr Miskovic was suffering symptoms of OCD, duties that would take another person a short time may have taken Mr Miskovic significantly longer. Dr Kossoff recounts that Mr Miskovic told her that in March 2001, when Mr Miskovic was still working, he began checking doors as an obsessive feature, and in June 2001, Mr Miskovic saw a syringe in a public toilet and, merely from seeing the syringe, was concerned that he may have contracted HIV.
45 At least one explanation of the discrepancy, between the assessment of time by employees of KSS or the calculation of time by the Court, and the evidence of Mr Miskovic, is that Mr Miskovic, because of his psychiatric conditions, checked and double-checked each of the premises, or, at least, checked in a manner that was more thorough than was required and more time-consuming than another person performing the same tasks.
46 As Dr Parmegiani noted, most people, in some circumstances, will display some form of obsessive/compulsive behaviour. He gave the example of a person travelling to the airport to go overseas. A person may check their passport, their wallet, their travel documents and do so on a number of occasions, even though the documents could not possibly have moved. Dr Parmegiani opined that, under particular kinds of stress, people experience obsessive/compulsive behaviour patterns.
47 Nevertheless, Mr Miskovic did have clinical Obsessive Compulsive Disorder. Most probably, if Mr Miskovic were unable to complete his tasks without experiencing undue stress, this resulted from his conduct and his affectation as a result of his clinical disorders. It is, of course, impossible to determine with certainty that Mr Miskovic performed his tasks without undue stress. However, it is possible to determine that, on the balance of probabilities, his employment duties were capable of being performed without undue stress. I so find. I am comforted in that finding by the fact that Mr Miskovic, when first employed, enjoyed his work and was not stressed. That latter fact is uncontroversial. Of course, the test for negligence is different again: see [73], infra. But at no stage prior to 9 April 2001 did Mr Miskovic display any behaviour to KSS, or its staff, that would render foreseeable the risk of him sustaining a recognisable psychiatric illness.
48 I also consider that his assessment, given in the witness box and/or in his Affidavit, that he was trapped in a lift in April 2001 for a period of 7½ or 8 ½ hours (on one version 9 hours) to be an inaccurate assessment of the passage of time. Again, I do not take the view that Mr Miskovic was necessarily telling a deliberate untruth, or seeking to mislead the Court. I do, however, take the view that Mr Miskovic's perception of time during that period was significantly affected by his state of panic and the conditions under which he was suffering. Notwithstanding its indirect nature, I accept the evidence of the contents of the report that the time in the lift was 3½ hours and I find accordingly.
The pre-employment conversations and reliance
49 The cause of action upon which Mr Miskovic relies under the Trade Practices Act (Cth) depends upon acceptance that Mr Miskovic relied on representations made to him (directly and/or through his father) in pre-employment conversations as to the nature of the work and its safety.
50 Mr Miskovic claims that KSS represented to him that the work was safe and that there was no risk (and the area in which Mr Miskovic was to work was a low risk area).
51 Depending upon the version that one accepts, there was an initial telephone conversation and possibly another telephone conversation and one or two meetings prior to the commencement of employment. The number of conversations, whether they occurred on the telephone or at meetings, is not significant. It is the content of the conversations that is significant. Differences between witnesses, as to when, within a relatively short time frame in the past, conversations occurred, must be expected. People better remember events of significance; and they better remember that which is significant in the event.
52 According to Mr Miskovic, at a meeting between him, his father and Mr Milivojevic, Mr Milivojevic, on questioning, made representations to the effect that the security work in Australia (or to be undertaken) is not the same as security work in Croatia and "there is no risk". Mr Milivojevic is alleged to have said:
"It is not like over there and there is no risk. You will have to check office buildings at night and usually there is no one around."