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[2015] QDC 63
District Court of Queensland
2015-03-27
Original judgment source is linked above.
EMPLOYMENT LAW - injury to employee - psychiatric injury - employee subject to complaint - investigation of complaint in conjunction with a large number of related complaints - whether duty of care in respect of psychiatric injury
EMPLOYMENT LAW - injury to employee - psychiatric injury - comments by superior - whether such injury a reasonably foreseeable consequence
EMPLOYMENT LAW - injury to employee - psychiatric injury - whether breach of duty - damages assessed
Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 84 ALJR 226 - cited.
Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613 - applied.
Hegarty v Queensland Ambulance Service [2007] QCA 366 - applied.
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 - applied.
Hirst v Nominal Defendant [2005] QCA 065; [2005] 2 Qd R 133 - cited.
Hogno v Racing Queensland Ltd [2013] QCA 139 - cited.
Hole v Hocking [1962] SASR 128 - considered.
Hunter and New England Local Health District v McKenna [2014] HCA 44 - cited.
Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64 - considered.
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 - applied.
Malec v JEC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 - cited.
Marshall v Queensland Rehabilitation Services Pty Ltd [2012] QSC 168 - cited.
Medlin v SGIC [1995] HCA 5; (1995) 182 CLR 1 - cited.
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 - considered.
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 - cited.
New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 - cited.
New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 applied.
New South Wales v Rogerson [2007] NSWCA 346 applied.
O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 - applied.
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 - applied.
Queensland Corrective Services Commission v Gallagher [1998] QCA 426 - considered.
Ryan v Ann Street Holdings Pty Ltd [2006] QCA 217; [2006] 2 Qd R 486 - applied.
Sullivan v Moody (2001) 207 CLR 562 - considered.
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 - cited.
Wicks v State Rail Authority of NSW [2010] HCA 22; (2010) 241 CLR 60 - cited.
Wolters v University of the Sunshine Coast [2013] QCA 228 - considered.
[1] The plaintiffs were in 2008 working in the Maryborough Office of Disability Services Queensland ("DSQ"), in managerial or administrative positions. In late 2008 and early 2009 there was a dispute in Maryborough where a number of staff complained about a number of the managerial or administrative people in that office. An independent investigation was set up, which ultimately concluded that the complaints were not sustained. The plaintiffs allege that, as a result of the negligence of the people running the office in their treatment of the plaintiffs, they had in the meantime suffered psychiatric injury, for which they claim damages. Liability and quantum are both in issue.
[2] These four proceedings were heard together pursuant to orders that I made, with the evidence being evidence in all of them. The parties agreed on certain facts for the purposes of these proceedings. These are set out in Exhibit 1, and are as follows:
"1. At all times material to the claims of the plaintiffs, the defendant provided disability services in Queensland under the name Disability Services Queensland ("DSQ").[1]
(a) Direct contact to and from RCOs concerning the filling of shifts;
(b) linking resource officer rosters around the technical aspects of the roster;
(c) direct communication to RCOs and service managers concerning the filling of shifts;
(d) liaising directly with the manager of MSC concerning any decision making of contentious issues emerging from roster or maintenance tasks.
[3] I am conscious of the fact that these proceedings arise out of a fairly lengthy and heated dispute between management and at least some of the residential care officers ("RCOs") working for the MSC. That dispute has already been the subject of proceedings in the Industrial Relations Commission, and complaints which related to it have been investigated independently. I am only concerned with the issues that arise in the proceedings brought by the four plaintiffs, but inevitably those issues are closely related to the development and course of that dispute, particularly because there are significant issues in this matter as to the question of causation. However, it is important for me to emphasise that I am only concerned with resolving the matters in issue in this action, and I am not conducting some sort of commission of inquiry into the events at the Maryborough Service Centre.
[4] I am also conscious of the fact that I have had relatively limited evidence, in that there were a lot of other people involved in the broader dispute from whom I did not hear evidence. As I will indicate, the immediate trigger for the dispute appears to have been a particular employee, Ms Johnson. She was not called as a witness; the evidence suggested that she is still working for the Department, although in a different position.[3] The defendant may not have been concerned to defend her position. There may be other explanations. I have in those circumstances not had the opportunity to make my own assessment of her. There are however in evidence a number of documents, including a statutory declaration, which she wrote, and I have read these.[4] To some extent these provide evidence of her position in relation to the dispute, and also seem to throw some light on her personality. In any case, I can only deal with the issues on the basis of the evidence before me.
[5] One of the functions of DSQ in Maryborough was to manage a number of residential homes for persons with an intellectual disability, who as a result needed assistance in caring for themselves. These homes were staffed by RCOs with a Team Leader in charge of several homes. RCOs were rostered so that one of them, and at one home two, would be there at all times. This was necessary to enable care to be provided to the residents. Groups of homes and the RCOs staffing them were then managed by one of two Service Managers at Maryborough, under the control of an overall Manager who at the relevant time was Mr Costello. Ms Hayes, one of the plaintiffs, was one of the Service Managers at the time. She was responsible for managing three of the homes, one of which was a respite care home.[5]
[6] Ms Hayes had been in her position since late 2006, initially in an acting capacity.[6] She had joined the service in an administrative role a few years earlier, and had worked her way up. She had not herself worked as an RCO. In her position she had to ensure that the standards and procedures of the service were implemented in the homes she managed. She was involved in the induction of new RCOs, and in the course of doing this she met Ms Johnson when she was inducted as an RCO, and she managed Ms Johnson.[7] She was initially happy with Ms Johnson's work, and supported her promotion to the position of Team Leader: p 1-35. The relationship soured however in March 2008 when she refused to socialise with Ms Johnson and her husband: p 1-36.
[7] Ms Greenhalgh began to work for the Department in 1994 as an RCO: p 2-53. She then became a resource officer, and then an acting unit manager, a team leader and then an acting service manager. She knew Ms Johnson from 2007 (p 54) and in 2008 she had a couple of issues with her, including in July Ms Johnson's telling staff that if they had a problem not to go to management and report but to go over their heads: p 2-55.[8]
[8] Ms Palmer had considerable experience as an officer handling rostering at the Ipswich office of DSQ: p 3-59. She had worked in rostering for upwards of 10 years, and was quite good at it. She had been involved in developing rostering programmes, and had been sent to various offices to assist them in the implementation of these programmes. She moved to Maryborough in 2007,[9] and found that there were problems with the roster then in place: p 3-60. Given that one or two RCOs had to be rostered to be at each home at all times, there was a system of having a rotating shift pattern for each of the homes, which took into account a number of factors which I need not go into; there was some complexity about the process. There were however not enough permanent RCOs then employed to fill the roster when it was prepared properly, with the difference being made up by permanent RCOs working overtime.
[9] At that stage there was quite a lot of overtime being worked, partly because there were not enough permanent RCOs, and partly because the rostering system which had been in use at Maryborough was obsolete: p 3-61. Ms Palmer brought the rostering system uptodate, and there were a number of additional permanent and casual RCOs employed, changes which brought the rosters under control, and the amount of overtime work was significantly reduced: p 3-62. This was beneficial for the budget of the office, but had the consequence that a number of RCOs suffered a reduction in the overtime available for them, and some were unhappy about this.[10] The RCOs also had less control, losing the ability to pick which shifts they would work.[11] In addition the implementation of this roster required some greater degree of flexibility from the RCOs, for example having to work at times at different houses, which some RCOs were unhappy about.
[10] About the same time, there were moves within the department to improve the quality of life for the people living in the houses.[12] There was new legislation, which identified this as an objective, and steps were taken to give effect to this, including by monitoring conditions in the homes, ensuring that the progress and activities undertaken by the residents were properly documented, and encouraging them to engage in additional activities. This involved some additional work for, and closer supervision of, the RCOs, which would have been problem for any RCOs who were not conscientious in performing their work.[13] The management structure had changed with the creation of the position of team leader, a position which involved closer supervision of the RCOs as the team leaders would regularly visit the homes.[14] Overall there were a number of changes which could be expected to give rise to some discontent on the part of those who preferred the old ways.
[11] Ms Hayes felt that initially she had a good working relationship with Ms Johnson,[15] but said that that changed when she rejected a suggestion from Ms Johnson that they meet socially: p 36, p 2-17. This was not long before the first complaint. Ms Palmer never got on with Ms Johnson whom she regarded as difficult to work with, loud, pushy and overbearing: p 3-65, p 4-24. She filled out a couple of workplace injury report forms because of her behaviour, but nothing changed.[16] Ms Greenhalgh had known Ms Johnson from 2007, having worked with her at times, and described her as not a nice person, with respect to coworkers, being very vocal and inclined to raise her voice, and tending to stand up so that she could lean over the person she was talking to rather than sit face to face across a desk or a table: p 2-56.
[12] Ms Harris joined DSQ in 1995 as an RCO and became a team leader in about 2007, presumably when the position was created: p 4-54. She was responsible for three houses, with five regular staff plus casuals and relieving staff. After Ms Johnson became a team leader they had workstations together in the MSC: p 4-57. She also described Ms Johnson as being loud, and inclined to talk over people, being a dominant personality, but she said that she had no issues with her until an occasion when Ms Johnson was complaining about her workload, and asked Ms Harris whether she agreed that the workload of team leaders was too great: p 4-58. Ms Harris did not agree and said so, and she said that Ms Johnson appeared hostile towards her from then on. She said that thereafter she found her hard to work with, and that Ms Johnson would not follow established procedures. She spoke to her manager, Mr Costello, about Ms Johnson, but was told in about December 2008 that something would be done and to stop worrying about the matter. Ms Johnson became worse in 2009, angry with everyone, and Ms Harris avoided her: p 4-59. This was not hard, as she was hardly ever in the office. She also complained to Ms Steele-Wareham: p 9-54.
[13] In May 2008 Ms Hayes took some leave: p 1-36. While she was away, a residential resource officer who had occasion to visit a particular house at La Frantz Drive for which Ms Johnson was responsible complained about the state of the house, particularly in relation to cleanliness. At that stage Ms Hayes' work was being covered by Ms Greenhalgh, who in cooperation with the manager Ms Chaplin[17] arranged a planning day, that is a meeting, for the team after Ms Hayes returned. At the meeting, held on 21 May 2008, Ms Johnson was very defensive in disputing the detail of the complaint, and critical of the officer who had made it. That this was so is supported by the content of an email from Ms Johnson of 3 September 2008 to Ms Hayes, in response to one of 28 August 2008 complaining that there were aspects of the same house that were still not properly cleaned, and that other matters arising from the planning day had not been addressed: document 13, which is also defensive and aggressive. At that meeting Ms Johnson also complained about the workload she had been given: p 1-37.
[14] Later Ms Harris took over as the team leader in charge of the house at La Frantz Drive, and found when she did so that the folders and documentation in relation to the residents had not been kept up to date by Ms Johnson, so she had a lot of work to do to bring it all up to date: p 4-68. Ultimately cleaning contractors were brought in to clean the house,[18] suggesting persistent resistance by the RCOs.
[15] On 8 July 2008 Ms Johnson provided to the regional executive director Ms SteeleWareham a written complaint alleging workplace harassment against Ms Hayes: document 11.[19] This complaint went for nine pages, but little of it referred to any conduct by Ms Hayes in relation to Ms Johnson. There was a reference to an occasion when Ms Hayes had spoken to her about an allegation that had been made to her by someone else, in a way which was entirely appropriate; one occasion when she was speaking about RCOs but in a way which could not possibly be interpreted as harassment of Ms Johnson; an occasion in May 2008 when Ms Hayes had been asking her to gather some information required by someone more senior, which was obviously unexceptional; one occasion later in May when Ms Johnson raised a complaint about the workload and was told that that was a management issue and if she had a problem to put it in writing; and that Ms Hayes appeared to become angry when told about problems with morale among RCOs. This turned into an exercise of Ms Johnson telling Ms Hayes how to do her job, but Ms Hayes responded not with harassment but by being silent and walking away.
[16] There was a good deal of how Ms Johnson felt about things, and things that other people said to her, or other exchanges with Ms Hayes which could not possibly constitute harassment. The only matter referred to in the complaint requiring any real consideration was an incident said to have occurred on 11 June 2008 when Ms Hayes supposedly challenged her about her having criticised Ms Hayes and Ms Greenhalgh behind their backs. According to the complaint Ms Johnson responded by saying that she wanted a complaint in writing, and otherwise objecting to the conversation.[20] If Ms Hayes had been told something to this effect I think it would be natural enough for her to raise it informally with Ms Johnson, and I find it difficult to believe that that could amount to harassment.
[17] The complaint was passed on to someone else,[21] who referred it to Ms Simpson, an acting senior manager, who prepared a report: document 10.[22] According to the report Ms Simpson was asked to travel to Maryborough to further explore the complaint and report on the matters raised: p 8-82. She interviewed 10 staff at the MSC and summarised their responses in attachments to her report. It is apparent from this document, and from the evidence of Ms Simpson, that as an investigation this was very badly handled. No attempt seems to have been made to identify relevant incidents as potential incidents of harassment, or to find out what happened during those incidents, and there was no consideration of whether what occurred amounted to harassment for the relevant purpose: p 8-88.
[18] The then manager was asked about things other than the behaviour of Ms Hayes,[23] and a number of other people were asked whether they had ever been subject to or witnessed workplace harassment or bullying by Ms Hayes; all denied that they had ever seen any such thing. There was an interview with Ms Johnson when she complained about the tone of Ms Hayes' voice, and about an aggressive look, and also commented about tennis balls being thrown on a wall, although it is not clear whether this was something supposedly done in her presence. According to the attachment to the report Ms Simpson did not ask Ms Hayes about any of the specific incidents referred to in the complaint, but merely asked in a general way about her behaviour in the workplace. As an exercise in investigating the complaint, this was useless.
[19] The report stated that Ms Johnson had the perception that Ms Hayes was undertaking workplace harassment/bullying during their interactions within the workplace, and that Ms Hayes did not consider her behaviour as harassing or bullying. In the summary it was said that Ms Johnson did not provide enough evidence to substantiate "beyond reasonable doubt" that Ms Hayes' behaviour could be classed as workplace harassment or bullying, which is obviously not the test.[24] Finally she recommended that an investigation into the alleged workplace harassment/bullying be undertaken, which I suppose amounted to an admission that what she had undertaken was not a proper investigation.[25]
[20] One thing she does seem to have achieved however was to leave both Ms Hayes and Ms Johnson with the clear impression that she was upholding the complaint. Ms Hayes said that Ms Simpson came back to the Maryborough office in August 2008, spoke to her and told her that she was upholding the bullying and harassment allegation, on the ground of Ms Johnson's perception: p 1-39.[26] Ms Simpson denied that she said this (p 8-84), but I prefer the evidence of Ms Hayes, partly because her evidence struck me as generally reliable, and partly because it is clear that Ms Johnson was given the same impression by Ms Simpson, as appears from a document Ms Johnson later wrote, which stated that on 1 August 2008 in a meeting with Ms Simpson she was told that her complaint was substantiated: document 16A. I cannot accept that both parties to the dispute would have obtained the same, incorrect interpretation of the situation if Ms Simpson had in fact said what she claimed in evidence to have said.[27] Given what subsequently happened, and that Ms Simpson obviously made a mess of the investigation, it is not surprising that she would not be frank about the situation. Whatever she was doing, to make any such comments to the parties was gratuitous, inappropriate and very damaging in its consequences.
[21] Ultimately however the complaint was dealt with by someone more sensible; by a letter dated 30 September 2008 both parties were advised that the complaint of workplace harassment or bullying was not substantiated: document 16, Exhibit 8. Other matters raised in the nine page complaint, about management decisions being influenced by relationships and team leader workload, were not substantiated, but a complaint about low morale within RCOs was referred to the manager at Maryborough to be addressed. This came as a great relief to Ms Hayes, who had been most concerned about what she was told by Ms Simpson: she was very upset and had gone home immediately after that conversation: p 1-40. She had foreshadowed an appeal but was persuaded to wait until the formal letter. As well she had asked that a different service manager take over the management of Ms Johnson (p 1-43) and Ms Greenhalgh was asked to do this, although she insisted that another more senior manager be present during any meeting she had with Ms Johnson: p 2-56.
[22] On one occasion after there was such a meeting, and the manager had left, Ms Johnson put her hand on Ms Greenhalgh's shoulder and said, "Don't worry, Pam, I'm not after you": p 2-57. Ms Greenhalgh found this very disconcerting (p 328), understandably because it contained an implied threat that the situation might change. As a result she spoke to her manager Mr Costello, and to Ms Cuskelly: p 2-58. She then arranged for an appointment with the Employee Assistance Scheme (EAS): p 3-30. She said that in fact she had little contact with Ms Johnson after September 2008, when she was supposed to be managing her: p 2-62.
[23] After Ms Johnson received the rejection of her initial complaint, she evidently set about canvassing support, in the form of lining up other people, mainly RCOs, who were prepared to criticise Ms Hayes and other members of the management team at Maryborough. She was quite effective at this, helped no doubt by the dissatisfaction within the RCOs at the changes referred to earlier. It is not entirely clear from the material I have seen whether there was one or more than one process of appeal, but one step adopted by Ms Johnson was to give notice of a fair treatment appeal under the Public Service Act 2008: document 16A. This was dated 26 October 2008, but was not the document which led to the major investigation.[28] Ms Johnson provided material from other residential care staff in support of her position. This came to be assessed by the Department's Misconduct Prevention Unit: document 56.
[24] In January 2009 the plaintiffs found out that there had been the further complaint by Ms Johnson. Ms Hayes was told in a meeting on 5 January 2009, and that the complaint related to bullying and harassment, but no other details: p 43, 46, p 2-23. Ms Greenhalgh was also told in January 2009 by Ms Steele-Wareham that there had been allegations made, but only in a general way: p 2-62, p 3-33.
[25] In January 2009 the Acting Director-General was Ms Kill.[29] On 8 January 2009 the head of the Misconduct Prevention Unit of the Department briefed her about the complaints from nine Maryborough staff. He had assessed the complaints and was referring them to the CMC;[30] at that stage he did not assess any significant risk issues with regard to placement of employees: document 20. The Acting Deputy Director-General proposed that the complaints be the subject of an external investigation.[31] Ms Kill agreed with the proposal for the external investigation, in order to be seen to be providing natural justice: p 8-54. Presumably the concern was to remove any appearance of bias.
[26] Ms Johnson also stirred up the Australian Workers Union which represented the RCOs. The union wrote to the Director-General on 8 January 2009 seeking a meeting about what action the Department was proposing to take about what was said to be a number of witness statements containing various allegations: document 56 p 8.[32] Ms Kill received the letter from the AWU, and she interpreted this as indicating that the union regarded these as very serious matters: p 8-52. There was a meeting between Ms Kill and officers of the Union on 9 January 2009, an event which she said in her experience was not uncommon: p 8-52. The union position was that efforts to deal with the situation thus far had been inadequate and ineffectual and more substantial efforts had to occur otherwise there would be substantial union action. She took the union's position seriously. Specifically the union wanted a number of staff removed from positions in the Maryborough region.[33]
[27] In response on 12 January 2009 Ms Kill wrote to the union, pointing out that the complaints had been referred to the CMC for independent consideration and assessment, and that there would be an external and timely investigation process if the matter was referred back to the Department for action: document 56 p 6. She proposed to ensure that the "impacted staff" were reminded of their obligations under the Department's Code of Conduct, and to make a particular person in Human Resources available who could support staff and discuss concerns they might have during the period until the investigation was finalised.[34] In addition, Ms Steele-Wareham was assigned to provide support for all staff and monitor the operations of the MSC[35]: document 25, which drew attention to the Employee Assistance Service. For practical purposes, she took over management of the MSC: documents 47, 48; p 928.
[28] On 13 January 2009 Ms Johnson wrote to the CMC, enclosing 68 pages of supporting material; they referred the complaints back to the defendant for investigation.[36] This led in March 2009 to the appointment of an external investigator, Mr Albietz, a former ombudsman, who was subsequently joined by Mr Smith, a principal investigation officer at the Misconduct Prevention Unit of the Department, for the purpose of an independent inquiry into the complaints: document 2 p 9.
[29] Early on 14 January 2009, Mr Costello sent an email to the plaintiffs and three other people, emphasising some (unidentified) directions given to them earlier in the week, drawing attention to the memo document 22, stating that it was of the utmost importance that they act in line with the Code of Conduct at all times, and requesting them to refrain from discussing this matter generally with any other employees: document 29.[37]
[30] There was a stop work meeting organised on 14 January 2009,[38] at which 38 members of the AWU carried a vote of no confidence in a number of people, starting with the Acting Director-General but including Ms Hayes, Ms Greenhalgh and Ms Palmer: document 28.[39] There was also a conference held at the Industrial Relations Commission on that day,[40] although I have little evidence about what happened there.
[31] The plaintiffs other than Ms Hayes, and some other people, were sent an email by Ms Steele-Wareham late on that day advising that the conference finished at about 4.30 p.m., that Ms Johnson and one other person participated with the union, and a number of additional statements were presented which would be provided to the Department for its response, but there was no further action to be taken: document 26. The email continued:
"Each of you is requested not to discuss these matters with any RCO or other staff. Should anyone want to discuss matters with you they are to be referred directly to Brendan [Costello] and if they feel uncomfortable speaking with Brendan they are to be referred to me. You are also requested not to seek out any information on these matters from any staff. I will ensure people are kept up to date with information as it becomes available. Should staff wish to meet as a group via union or other meetings to discuss these matters you are requested not to participate."
[32] The email also drew attention to the availability of the employee assistance scheme. The plaintiffs interpreted these emails[41] as an instruction that they were not to talk to each other, or other management staff, or their own union.[42] This left them feeling isolated and unsupported by the Department. The AWU released information to the media: documents 34, 36, 46.[43] The AWU was also actively seeking statements from members in pursuit of its campaign: document 35.
[33] There was a further meeting of RCOs held at 10 a.m. on 16 January 2009, attended by 42 people, at which it was resolved that the Department be asked to stand down seven persons including three of the plaintiffs: document 37.[44] This meeting was organised by Ms Steele-Wareham, working with the local AWU organiser. The invitation sent out by Ms Steele-Wareham said that he was "supportive of working with [her] as an independent person to understand your concerns": document 38. She attended the meeting, and said that there were a number of complaints voiced at that meeting, general comments about decision-making by managers, particularly in terms of promotions, and examples were given: p 9-81. The people raising issues seemed to be genuine about what they were saying, and appeared to be talking generally about matters that had some substance attached to them: p 9-82.[45]
[34] Ms Steele-Wareham said her purpose in calling the meeting was essentially to find out the scope of the unrest among the workforce (p 9-10) and she had made it clear that she was not there to make judgments or decisions about issues that were raised, but just to report back to the Director-General, as indeed she did: p 9-11. Her presence did not pacify the union, or was seen as a sign of weakness, because they proceeded to organise a picket of the MSC on 19, 20 and 21 January 2009.[46] There was shouting and at times placards were banged against the office windows.[47] There were no special security arrangements in place: p 5-63.
[35] Ms Kill said that she decided Ms Palmer and Ms Hayes would be moved from their current positions into different positions, and that Ms Greenhalgh would be moved to take up the position to which she was moving anyway as a result of an earlier decision: p 8-54. She did not identify when this decision was taken, but it was while she was Acting Director-General.[48] She said that her primary concern was about maintaining a quality service for the residents and remedying the conflict which had arisen, and she concluded that this would act as a circuit breaker: p 8-54, 55. It was not simply a question of doing the union's bidding, particularly in circumstances where the union was seeking more substantial action against these and other officers, but her concern was that the service was at risk, the residents were at risk and there was a risk of harm to staff as a result of the conflict with other staff. No documentation in relation to this decision was produced.
[36] Ms Kill said that she would expect that, if staff were being transferred to another position pending the outcome of the investigation, the rationale for this move would be explained to the staff concerned, and that this did not mean that the Department had accepted that the complaints that had been made were justified: p 863. She expected that the officers would be told that their redeployment was temporary, though indefinite: p 8-64. She said that she recalled instructing[49] that the staff be clear that the investigation was a separate matter that was not being prejudged, that they were employees in good standing, but that she had made the decision that these changes were necessary, in the interest of maintaining the service to the residents: p 864. The things that she expected to be communicated were the decision which she had taken, and her rationale for taking it (that is to say because of the importance of continuing the service to the residents), that this decision was not related to the investigation that was underway, and that they were officers of good standing: p 880.[50] It is clear from her evidence that the industrial relations situation was an important consideration in the decision to move the staff, though she was not prepared to say that if there had been no industrial relations issues they would not have been stood aside simply because of the nature of the complaints themselves; that was an issue which would be decided on a case by case basis in the light of the specific complaints: p 8-65.
[37] Ms Kill said that she did assess the risk to the plaintiffs, but she did not consider that that was something that ought to have been communicated to them when they were told of the decision to move them: p 8-69. The risk to the relevant officers that she had in mind was that hostility which had developed and conflict as a result of that hostility could be harmful to them: p 8-80. She was told by senior executives that managerial staff were being treated dreadfully, and that it was sustained. The union was told that these staff were to be moved, and they were not consulted about whether the union would be told: p 8-73. Ms Kill was not convinced that the MSC would be able to arrange adequate coverage for all of the houses in the event of a strike: p 8-75.[51] She knew that in a heated industrial dispute the requirement that RCOs not leave a resident without care might not be complied with, having had experience in the past where that had occurred: p 8-76. These steps would not necessarily prevent industrial action: p 8-77.
[38] About 15 January 2009 Ms Hayes was told that she was being moved to a different position,[52] because the RCOs were not happy about her going to the homes, and she was given a position as community resources officer, which she was told was the only role available: p 48, 49.[53] She was not happy about this because, although her pay was not reduced, this was a lower status position and she felt as though she was being punished: p 49. She said she was told that this had to be done pending the investigation, became upset and went home. The combination of things left her feeling unable to continue at work: p 2-33. Ms Steele-Wareham said she told her it was not in her best interests to be continuing to deal with the workforce given their attitude; she regarded it as unsafe: p 9-12.[54] Ms Hayes subsequently consulted a doctor, and went off work with stress: p 53. She put in a claim for workers' compensation: p 54.
[39] According to Ms Greenhalgh she was told by Ms Steele-Wareham that she and the others against whom the complaints had been made were not allowed to talk to each other in relation to the dispute: p 2-63. She did not ask any questions. They were told it was a union dispute. The next day she was asked by Mr Costello whether she was still happy to act in the service manager's position and she said she was,[55] but the following day she had a phone call from Mr Price, another manager, advising that she was to move immediately to a position that she had previously applied for with a different team: p 2-64. She had been advised in November that she had been successful in this application (document 17), but had stayed on in her position because of a need for some continuity because of difficulties posed by a particular resident who had challenging behaviours. No doubt this move was somewhat disruptive for her given that she was being kept on in the former position specifically to deal with this task, but it could hardly be characterised as some form of disciplinary action or unfair treatment. Nevertheless, she saw this as a process of giving in to the RCOs, since she knew that they had wanted her and other managers moved away: p 2-66. She started in her new position on 2 February 2009: document 101.
[40] When she moved into her new position Ms Greenhalgh did some training, which involved going to Brisbane: p 2-91. She was told at some point at a meeting[56] that she would receive details of the process of investigations that she would be involved in, but at that stage no details of the allegations.
[41] In January 2009 Ms Palmer was told by Mr Price that some allegations had been made against her and as a result she was being stood aside from her position, but he did not say what the allegations were.[57] For that purpose she was also required to leave her usual work station, and was given a different desk: p 3-74. Her work station had been especially set up with appropriate aids because of a shoulder problem that she had: p 3-69.[58] Although Ms Palmer had been removed from her position, and from her desk, she was not given anything else to do: p 4-4. Someone else who had had some training but whom she did not regard as up to speed was given her job to do, and she had to spend some time helping that person or dealing with queries from that person.
[42] Ms Palmer was concerned to receive the email about the proceedings in the Industrial Relations Commission (document 26), particularly because of concern about what Ms Johnson would be saying to them: p 3-71. She also understood the email as indicating that they were not allowed to talk about the matter with anyone: p 4-9. She also received the email from Mr Costello dated 14 January, document 29: p 4-8.
[43] Ms Palmer was in the office on one occasion when there was picketing organised by the AWU and she was terrified by it: p 3-74. At the time of the picketing, while she was in the office she saw on a table some documents from the AWU which had her name on them: p 3-75.[59] She put in a workplace injury report form in relation to this.[60] She said that during the picketing there was chanting and at times placards were being banged against windows: p 3-76. She thought that the picketers were angry and that they seemed to be out to hurt someone, which particularly frightened her: p 3-77. She was too frightened to stay in the building and she was escorted out to her car through the back door by Ms Greenhalgh, and went home: p 3-77. She complained at the time to Mr Price: p 378.
[44] Ms Greenhalgh was then still working from the same office building, though in a different section, so that she was aware of the picketing, she thought, on 19-21 January 2009: p 267. She was upset by it, particularly when they were hitting the windows with their placards, and she was told that one of the picketers, a Mr Smith, had entered the foyer of the building: p 2-68.[61] She submitted workplace injury report forms as a result of her feeling stressed, harassed, intimidated and bullied by the picketers: documents 44, 51. She did not receive any feedback in relation to those forms. She felt a lack of management support in the building, although at the time she was being managed by the Sunshine Coast office: p 2-69.
[45] Ms Greenhalgh said that during or just after the picketing she was speaking with Ms SteeleWareham, in the course of which Ms Steele-Wareham had asked, how could 60 RCOs be wrong: p 2-70, p 3-35. She replied that they could be wrong if they want what they want, not being happy with the fifth line rostering system referred to earlier.[62] Ms Steele-Wareham denied she said this: p 9-15, 53.
[46] At about this time Ms SteeleWareham told Ms Greenhalgh that there had been a complaint of racial vilification by her, supposedly at a team planning day which Ms Greenhalgh had run, and asked her what she had said at the meeting. Ms Greenhalgh said that she gave an account of a discussion in relation to the management of the processes for recording a client's financial matters in circumstances where the client was visiting members of an extended family within the Aboriginal community: p 2-71. According to her Ms Steele-Wareham spoke about some other matter, and then told her that she would have to go and do cultural training,[63] because she had vilified. Ms Greenhalgh felt that she was being dealt with unfairly, because she was essentially being punished without there having been any proper investigation of the complaint, and without her having had the opportunity to tell her side of the story. She felt that Ms Steele-Wareham was treating her and the other managers as guilty, because of that comment and because she was not doing anything to help them.[64]
[47] On 2 February Ms Palmer met with Ms Steele-Wareham, and had a discussion, the content of which Ms Palmer could not now recall, except that at the end of the conversation Ms Steele-Wareham said: "How can all those people be wrong?": p 47.[65] She was most upset about this because it appeared that Ms Steele-Wareham had decided that the allegations, the details of which Ms Palmer at that stage did not know, were justified: p 4-8. Ms Palmer cried, and that was the end of the meeting.
[48] Apart from a bit of helping out, and a trip to Townsville for work, Ms Palmer did not have any particular function until 17 February 2009 when the job that she was previously doing was split, another person was given responsibility for rostering, and she was to take care of payroll matters, though she was still not to have any contact with RCOs: p 4-13. This did not occupy her whole time, or close to it, in spite of the fact that nominally she had a long list of duties: document 54, p 4-14. Ms Palmer had been on a working party which was preparing a new rostering system, and she had some papers associated with this at her old desk: p 4-15. On 17 March 2009, she sought to retrieve them, and was told by the person who had taken over her rostering role that she had thrown them away. This interfered with that work and left her feeling very upset, as though she had been sabotaged. She was so upset that she went home. She saw a GP as soon as she could, and completed a workers compensation form, but her application was not immediately accepted: p 416, document 70.
[49] On 9 March 2009 Ms Greenhalgh was sent an email by Ms Steele-Wareham referring to the investigation process: document 57. At the time Ms Greenhalgh was on a training course, and did not in fact have access to her emails, and when she eventually discovered that the email had been sent she was upset that she had not been advised more promptly: p 3-7. In April 2009 Ms Greenhalgh had a conversation with Ms Harris who was complaining about the way the RCOs were behaving at a house at which she was working: p 3-8. She told her to speak to her manager, and subsequently had a conversation with Ms Steele-Wareham about the matter. Shortly after that, she was spoken to by her manager in her new position who instructed her that she was not to have any contact with people from the previous section. Up to then she understood that she was not to have contact with RCOs and residents, and she was quite upset that she was not allowed to have any contact, which indeed was not really consistent with the requirements of her new position.[66]
[50] Ms Greenhalgh became so upset by this that she left the building and went home. Later she had an informal conversation with Mr Costello and after that when she happened to see Ms Steele-Wareham she had an anxiety attack: p 3-12. Subsequently, when Ms Steele-Wareham moved to Brisbane she felt better. Nevertheless, it appears that her stress reaction became more severe during 2010, to the point where in May she was unable to work at all.[67] She began a graduated return to work in August, and eventually she got back to full time work, but she still has anxiety symptoms at times, particularly when she sees certain RCOs: p 3-13. She is now working in a different building, which helps.
[51] Ms Harris was on leave from 18 to 26 January 2009.[68] When there were reports in the press she rang a couple of times, but was told, first by Mr Costello and then by Ms Steele-Wareham, that she was not involved in what was going on, and to enjoy her holiday.[69] At one stage she was told by another team leader that she had heard from an RCO that they were now out to get her as well, and she spoke again to Ms Steele-Wareham who again told her there was nothing to worry about: p 462.[70] After her holiday she resumed her work as a team leader, but saw her GP complaining about stress from problems at work: p 5-35. She was prescribed medication.
[52] In March 2009 Ms Harris had a week off work because she was upset about not being told anything, but she did want to work and she went back to work after that: p 4-72, p 5-35. On 15 April 2009 Ms Harris was given a letter about the investigation: document 61, p 4-63. It was shortly before this that she was first told by Ms SteeleWareham that she was involved, and that she was to be given the letter. She was quite upset about the letter, particularly about an allegation of racial discrimination; she found that particularly upsetting, because her husband, and her two children, are Aborigines. There was an occasion in April 2009 when there was a meeting with Ms Steele-Wareham during which Ms Harris became quite upset, and she later prepared a record of the meeting: document 7, p 4-67. She saw her GP again on 14 May, complaining of stress from work: p 5-35.
[53] The independent inquiry promised by the Department got underway in March 2009,[71] but it was some time before they interviewed the plaintiffs. The plaintiffs were not given details of the specific complaints made against them prior to the time when they were interviewed.[72] Ms Palmer was interviewed on 27 April 2009: document 65, which she verified: p 4-17. Ms Palmer had subsequently a further interview: document 75, p 4-18. This further interview was because on the first occasion she did not have documents available to answer the charges, not having been given particulars of them beforehand, so a second interview was arranged for that purpose. Ms Harris was interviewed on 29 April 2009 (document 66) and again on 28 May 2009 (document 74). Ms Hayes was interviewed on 26 May 2009 (document 73). Ms Greenhalgh was interviewed on 28 May 2009: document 76.
[54] In June 2009 Ms Palmer was sent to the Hervey Bay office for two weeks, on the basis that they needed someone at that office, but in fact when she got there she was not allowed to do anything very much, and found the exercise quite frustrating: p 421. Before July 2009 she had been to the EAS people, but did not find them very helpful: p 4-22. What she really wanted was to get back to her previous position, but the Department was not prepared to allow that. She was concerned in September 2009 when Ms Johnson returned to work after taking maternity leave, and she arranged to move to a desk at the opposite end of the building; however there was a door to the outside of the building next to her desk, and Ms Johnson began to use that door to enter and leave the building, something she had not done previously: p 4-23. Ms Palmer assumed, and the assumption seems to me to be reasonable, that this was just being done to upset her. She put in a number of workplace injury report forms in relation to this conduct, but nothing effective was ever done.
[55] Ms Hayes remained off work for about six months, and was then cleared to return to work provided she was not working with RCOs: p 74. She found however after two weeks that she could not cope with working in the same office. The Department evidently could not find her any other work for some time. She was provided with support and assistance in redeployment from a psychologist, Ms Stokes: p 6-57, Exhibit 34. Eventually she worked for three months with the National Parks and Wildlife Department, which she said worked well: p 76. However she was told she had to work again in the Maryborough office, and became upset: p 77. She was then given a position within a group based in Brisbane, though most of the work was done in an office in a different part of the building in Maryborough: p 78.
[56] Eventually[73] Ms Hayes moved to a different position which led to a move to Brisbane in November 2011: p 79. She was able to cope with this work, and at first generally enjoyed it, but after a couple of years her condition deteriorated again, she began having anxiety attacks, and eventually she felt she just had to get away from the Department completely: p 80. She did not in her evidence identify any particular trigger for this deterioration.
[57] In mid-October 2009 the independent investigators submitted their report.[74] The complaints were comprehensively rejected. It was considered by the Deputy Director-General, Mr Hogan, who accepted its findings in late October: p 8-9. There was some concern about the reaction when the findings were made known, and for that purpose an external organisation was engaged to provide assistance in improving the workplace relationship between the management and staff: p 8-10. The then Director-General and other senior officers within the Department travelled to Maryborough in order to brief those concerned on the outcome of the investigation. The officers the subject of the investigation, including the plaintiffs, were briefed at Hervey Bay on 27 November, and they were provided with letters formally communicating the decision in relation to the complaints.[75]
[58] The Director-General's party then travelled to Maryborough and held a meeting with a large number of RCOs, who produced a strong adverse, and to some extent aggressive, reaction to the decision: p 8-11. It was the most robust and aggressive meeting Mr Hogan had ever attended. Mr Hogan was concerned about the reaction mainly because it indicated that it would be difficult to get the workplace working properly, something which would require more intensive effort. Part of the problem was that, although the complainants were told the outcome of the investigation, the reasons of the investigators were not released to them.[76] The union threatened further industrial action, and there were further proceedings in the Industrial Relations Commission, which led to a copy of the report being made available to representatives of the union, under the supervision of the Commission and on the basis that the details of the contents of the report would not be communicated to others: document 91. Once the union officials were able to consider the terms of the report, the union lost interest in pursuing the matter, though no doubt individual complainants who had been told their complaints had been rejected but had not been given reasons for that decision would still have been angry and dissatisfied with the process.
[59] It is clear from the evidence of Mr Hogan that the Department at that time was focused on seeking to mend the relationship with the staff, and various steps were taken including, significantly, a decision not to return the two plaintiffs, Ms Palmer and Ms Hayes, to their previous positions at that time: p 8-10. This was because of the volatility of the situation, and the strong reaction from the workforce. For the same reason it was decided that no disciplinary action would be taken against any complainants: p 8-12. During the time Mr Hogan was specifically responsible for this issue, which appears to have ended in early 2010, no final decision had been taken as to whether Ms Palmer and Ms Hayes would return to their previous positions.[77] The practical effect of this was that the decision that they stay out of those positions for the time being continued: p 8-35.
[60] In the light of Mr Hogan's evidence at p 8-37, 38, it is safe to infer that, up to the time when he ceased to be responsible for this matter, no decision had been taken permanently to move Ms Palmer and Ms Hayes from their previous positions. It follows that, insofar as they may have had an impression to the contrary, it was erroneous.[78] Mr Hogan also said that his expectation would be that if it was decided that it was necessary because of an industrial relations issue that had arisen for a person to be moved out of a particular position in the Department, without any adverse finding against that person, he would expect that the context and rationale for this decision would be explained to that officer: p 8-39. He did not recall an issue ever arising in relation to Ms Harris being removed from her position: p 840.
[61] Mr Hogan said that one of the actions instigated was to provide additional support and engagement with Ms Palmer and Ms Hayes about their career planning and placement options: p 8-23. The additional support was in the form of the provision of a separate counsellor, Ms Stokes, to provide support to at least some of the plaintiffs: p 8-24. Ms Stokes, a psychologist, said that she first saw Ms Hayes at the request of the Department in early July 2009, to help her cope and to provide assistance for possible redeployment: p 6-56.
[62] Mr Hogan understood that simply having complaints made against one can be quite stressful for the person concerned, and that it was obvious when he saw the subject officers that they were quite emotionally distressed: p 825. Mr Hogan agreed that the Department had a commitment to provide continuity of care, and that was why the matter was taken to the Industrial Relations Commission when there was a threat of strike: p 8-29. Mr Hogan conceded that if someone in the position of Ms Johnson was not doing her job properly and was resisting doing it properly, then that could well impact on the care provided to the residents, and that in those circumstances he would expect management to take action to make sure that that person was doing the job properly: p 8-34. Mr Hogan was aware of another industrial matter involving Ms Johnson around this time: p 8-34. Mr Hogan recognised that if local managers were not supported by senior managers, that could be demoralising: p 834. Accordingly if RCOs were resisting management attempts to get them to do their job properly, then those attempts ought to be supported by more senior management, and it would be reasonable for them to expect that they would be supported in that by more senior management: p 8-35.
[63] On 16 November 2009 Ms Palmer began to get counselling from Lorraine Stokes, who had also counselled some of the other plaintiffs: p 4-25. However she did not find the counselling to be particularly helpful: p 4-26. In December 2009 she went off work for a time. In April 2010 there was a meeting with various managers when she was trying to arrange to return to work, but the difficulty was that she wanted to go back to her rostering position (p 4-22), and they were not prepared to let her do that: p 427. She was told that it was not safe for her to go back to that position.[79] Prior to this situation developing her intention had been to work until she was 67, at which time she and her husband would retire; she expected to be working in rostering work until then: p 4-28. More recently she has been living in Emerald and then Gladstone with her husband, but she feels that she is unable to work as she is terrified of contact with people: p 4-29. As a result of her condition her relationships with her children and her husband have suffered, and at times she has felt suicidal: p 4-30. She has been taking medication, more recently Lovan, which she can tolerate, and she has attended a number of sessions with counsellors and psychologists. She sees a psychiatrist every six months: p 4-31.
[64] Ms Harris was very upset about the whole business of the investigation, because in her view the people who complained about it had just outright lied, she was not the sort of person to do the things that they had alleged: p 4-70. None of the people who had complained about her had previously spoken to her about the matter of their complaints and tried to resolve them: p 4-71. She also felt that Ms SteeleWareham had lied to her about there not being complaints about her when it turned out there were. She was off on WorkCover from 30 June 2009 until October 2009, when she began a return to part-time work, initially working only in the office, p 4-73. It was her doctor's idea not to have contact with the RCOs by going to the houses. She was also supported at this time by Ms Stokes: p 6-74.
[65] Ms Harris heard from someone, she could not recall who, that Ms Steele-Wareham had said that all those allegations cannot be wrong; it was not said directly to her: p 475. She was quite upset about this, and she thought that about this time Ms Steele-Wareham's attitude towards her changed. In October 2009 there was an organisation called PsyCare who was brought in to offer counselling to people who were upset at the situation in Maryborough, and Ms Harris had at least one conversation with them, but her impression was that essentially these people were brought into support the RCOs rather than to support her: p 4-76. She attempted returns to work October 2009, but had difficulty in coping with contact or possible contact with RCOs (Exhibit 35) and there was more stress when the outcome of the investigation came out. She had a panic attack in early December 2009[80] as a result of which she was off work for some months, but commenced a graduated return to work on 15 February 2010: Exhibit 35.
[66] The return to work had progressed to the point where she was up to working about 24 hours a week, but in October 2010 a new manager took over who insisted that she work particular nominated days, rather than simply working on those days where she felt well enough to work: p 4-77. She was very upset about this, and walked out of the meeting, and later she became so upset that she had to be calmed down and taken home by some other people. She understood that as a result of that the new manager said that he did not want her back working again at DSQ.[81] Prior to this she had been planning her work on a fortnightly basis, but not necessarily working the same particular days each week: p 4-78, Exhibit 22. After this initial rocky start, her relationship with the new manager improved, and she was now working with him satisfactorily, and back as a team leader essentially in her previous role: p 4-80.
[67] Ms Harris finds that she is still hurt by the allegations that were made and the way everything was handled, but generally she is able to cope, though every couple of weeks she becomes very tearful and isolated: p 4-81.[82] She asserts however that she is still able to do her job and she still loves it, and she enjoys the interaction with the residents. Before this incident she had in mind working until she retired in much the same work. There is however the prospect of some disruption in her employment with the new disability support scheme being rolled out: p 4-82. She is hopeful that it will work out, and there are other possible options for employment with other people she knows. She has had counselling at times, and she has been prescribed different medication, and is still on Lovan: p 4-83. She also takes Stilnox to help her to sleep, though she would prefer not to have to take them. Prior to this incident, she had not had any particular difficulties with anxiety or depression, except about 10 years ago when she had some symptoms associated with menopause: p 4-84.
[68] The plaintiffs were employed by the defendant and therefore the defendant as employer owed them a duty to take all reasonable steps to provide a safe system of work. That extended in principle to a duty of care in relation to psychiatric injury as well as in relation to physical injury, but in the former case it is necessary to take care to identify correctly the content of the employer's duty.[83] The central issue in relation to duty is whether the risk of a particular employee's sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not farfetched or fanciful.[84]
[69] Whether that was so in a particular case may arise simply because of the nature of the work that the employee was required to do; it is accepted, for example, that work undertaken by police officers and security guards involves a risk of their being exposed to psychiatric injury, because of the risk that they will find themselves in life threatening or other extremely unpleasant situations. It does not follow of course that if such a person suffers psychiatric injury the employer will necessarily be liable; the obligation on the employer is only to take reasonable care to avoid such an injury, which may be simply a matter of putting in place appropriate procedures to minimise the risk.[85] There may well be other occupations where much the same position applies, but even in respect of these occupations the emphasis is on exposure of the employee to the sort of extreme situation where psychiatric injury is more readily foreseeable.
[70] On the other hand, the mere fact that an employee has been placed in a situation that the employee finds stressful, because the work is difficult or demanding, or the workload is excessive, has not been regarded as showing without more that it is reasonably foreseeable that the employee will suffer psychiatric injury. This is because many, possibly even most, employees find work difficult or demanding or challenging, so that it would be unrealistic to expect employers to relieve employees from any exposure to stress at work. Many people experience demanding or stressful situations in the course of their employment without developing psychiatric problems. It has been recognised as well that one of the difficulties in formulating the content of a duty of care is that the capacity of a particular individual to cope with stress may be affected by unpredictable personal circumstances, including circumstances not known to the employer.[86]
[71] Although the duty is owed to employees individually, so that an employer must take into account any information specific to a particular employee which could reasonably indicate a particular vulnerability and hence risk of psychiatric injury, in the absence of any relevant information it appears that an employer is entitled to assume that an employee is a person of normal fortitude.[87] On the other hand, it is clear that an employer who has relevant information about a specific employee is not protected from liability merely because the conditions to which the employee was exposed would probably not have caused psychiatric injury to a person of normal fortitude.[88]
[72] Even in an occupation likely to expose employees to particularly stressful situations, there are limits to the extent to which an employer is expected to be alert to the risk of psychiatric injury developing in an employee, particularly in circumstances where there has been no particular indication of the existence of a specific risk in relation to that employee. This is illustrated by the decision of the Court of Appeal in Hegarty v Queensland Ambulance Service [2007] QCA 366. In that case the Court of Appeal overturned a judgment in favour of a paramedic who was found to have experienced a cumulative stress reaction as a result of exposure to multiple traumatic events during 15 years of service.
[73] Keane JA, as his Honour then was, with whose reasons the other members of the Court agreed generally, said at [41]:
"I pause here to observe that this elegant formulation of the plaintiff's case glosses over a number of issues. It must be said immediately that, while an employer owes the same duty to exercise reasonable care for the mental health of an employee as it owes for the employee's physical well-being, special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether a risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension. Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works."
[74] Given the nature of the work to which a paramedic is exposed his Honour found that there was a foreseeable risk that that work would cause psychological stress and possibly psychiatric injury, but acknowledged that the defendant had taken at least some steps in the early 1990s to deal with that risk. The plaintiff succeeded at trial on the basis that his supervisors ought to have detected that he was in need of professional help to cope with stress and ought to have suggested that to him, but that approach was rejected on appeal by his Honour who seems to have regarded it as putting the standard of care required by an employer at too high a level. His Honour said at [47]:
"In the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in the recent decision of the High Court in Koehler v Cerebos (Australia) Ltd, it was said that a stable appreciation of the content of the employer's duty to take reasonable care is essential; and that it is erroneous to proceed on the assumption that 'the relevant duty of care [is] sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kind of steps required of an employer.' Further, 'litigious hindsight' must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law's insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee's mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard."
[75] After some further analysis of the evidence and discussion of the submissions on appeal his Honour said at [89]:
"In my respectful opinion, there is much force in the defendant's principal submission. Bearing in mind the plaintiff's proficiency in his duties, his ambition, his apparent physical problems and his reasonable requests for a transfer from Gayndah, it is difficult to see how a layman in the position of any of the plaintiff's supervisors, even one trained in the manner suggested by Professor Bryant, could have been alerted to discern in the plaintiff's cluster of complaints a 'signal' that the plaintiff was not coping with the stresses of his job. It is even more difficult to see the basis on which the defendant's officers could have been instructed to conclude that the only reasonable response to what the plaintiff actually said to his supervisors would have been advice to seek psychological assessment and assistance."
[76] An earlier decision of the Court of Appeal illustrates the difficulty in succeeding in a matter of this nature, particularly in the case of a person in a managerial position: Queensland Corrective Services Commission v Gallagher [1998] QCA 426. Again in that matter the Court overturned a judgment for a plaintiff who was found to have suffered a major depressive illness while working in a managerial position in a prison over a period of about three years. There were difficulties in the administration of the prison, which was overcrowded and short staffed, and in that case there were indications from the plaintiff that he was experiencing stress at work, and at one stage he took a period of stress leave. There had also been complaints about aspects of his management which had been ventilated in an appeal in relation to promotion which was ultimately not pursued, and there had been a report prepared into his management which he believed would be critical of him but which had not been released to him.
[77] In that matter it was noted that the defendant had referred the plaintiff to professional counselling, which the plaintiff had declined, pointing out that he was receiving professional attention privately: [18]. The Chief Justice, who delivered the principal judgment, said at [23] that he found it difficult to accept that an employer conducting a correctional centre and knowing of the availability of the counselling and support service which was on offer should reasonably foresee a risk of injury to its managerial staff as involved in the sort of circumstances found in that case. There were also difficulties with causation, in circumstances where the evidence in relation to causation really went no further than to say that there was a link between the depression and the workplace in a general sense: [30].
[78] One area where there can be particular stress in the workplace is where an employee is the subject of humiliating and harassing treatment by a person in a superior position in the structure of authority. Such a case was considered by the New South Wales Court of Appeal in Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471. That case involved a security guard, who was working under the supervision of a person who was not employed by the same employer, so that there were two defendants, the employer of the plaintiff and the employer of the supervisor. In that case the plaintiff had succeeded at trial against both defendants, but the Court of Appeal overturned the finding of liability on the part of the plaintiff's employer.[89] The liability on the part of the supervisor's employer was essentially because the conduct of the supervisor was such that he would have been personally liable and the conduct was held to have occurred in circumstances where his employer was vicariously liable for it; indeed, it was said that his position was such that his conduct was able to be identified as the conduct of his employer itself.
[79] As to the question, which is more relevant here, of the liability of the plaintiff's employer, Spiegelman CJ said at [20], [21]:
"The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.
Koehler affirms the line of High Court authority ... which focuses attention on the purpose for which the inquiry as to foreseeability is undertaken, namely, to determine what reasonableness requires by way of response and, therefore, whether legal responsibility for the conduct should be attributed to the defendant for the injury to the plaintiff."
[80] In that matter there was a good deal of evidence as to what was known by various other employees of the plaintiff's employer as to the way the plaintiff had been treated, but it was held that the knowledge of most of these people could not be attributed to the employer, because of the positions they held. In the case of those employees whose knowledge could be properly attributed to the employer, it was held that what they had seen was not enough to suggest foreseeability of a recognised psychiatric illness, rather than simply suggesting an adverse effect on the plaintiff's mind. The Chief Justice said at [58], [59]:
"The signs suggestive of psychiatric illness, rather than psychological disturbance, satisfy the not far fetched and fanciful test of foreseeability. However, they do not, in my opinion, reach the level of possibility which would require the employer ... to intervene.
Workers are subject to stress in both their working and personal lives which can affect their mental health. Changes in personal behaviour over a period of years may occur for many reasons. So may the response of crying. These responses did not, in my opinion, indicate psychiatric illness to the degree that required a response from the actual or surrogate employer."
[81] It seems to me that his Honour was there distinguishing between the test for whether there is a duty of care and the content of the duty of care; given that an employer's responsibility is only to take reasonable care, not absolute care, the mere fact that psychiatric injury is reasonably foreseeable in accordance with the conventional test does not mean that there is necessarily an obligation on the part of an employer to take steps in response, and it is necessary in assessing whether the employer has fallen below the standard of reasonable care to have regard not merely to the foreseeable possibility of psychiatric injury but to the level of risk of such injury.
[82] One of the difficulties facing the plaintiff in that case was there had never been a complaint to the employer about the behaviour of the supervisor. There are two Queensland cases where there was a complaint by an employee to an employer about the behaviour of another employee in a position in authority, where a claim for psychiatric injury succeeded: Wolters v University of the Sunshine Coast [2013] QCA 228; and Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64. The significant feature in each of those cases, however, is that when a formal complaint was made the employer did not follow its own established procedures for dealing with that complaint, and in each case the Court held that if those procedures had been followed it was probable that the psychiatric injury would have been avoided. In circumstances where an employer has itself adopted particular procedures for dealing with misconduct in the workplace, it is generally not difficult to show that a failure to comply with those procedures amounts to a want of reasonable care; in effect the employer is being judged by the standard it has set itself.
[83] The former case, Wolters, is interesting because the trial judge found that psychiatric injury to the plaintiff was reasonably foreseeable as a result of the behaviour of her supervisor, because there had been an earlier occasion when the same supervisor had behaved in a broadly similar way towards another employee and that employee had gone on to develop psychiatric injury as a result, to the knowledge of the employer. This finding was not in issue on appeal, where the issue was as to causation, on which the plaintiff failed at trial but succeeded on appeal. In these circumstances, the decision of the Court of Appeal is authoritative really only on the question of causation, and there was no detailed consideration of other issues.
[84] In the present case of course there had been no formal complaint about the behaviour towards any of these plaintiffs on the part of any supervisor of them, or about similar conduct by any supervisor towards any other employee; in this case there was a formal complaint, but it was against the plaintiffs, initially just against Ms Hayes, but then against all of the plaintiffs, and indeed a number of others. Those complaints were the subject of some consideration and examination, and the matters complained of by the plaintiffs arose in the context of those formal complaints and the responses to them by the defendant. I am not aware of any Queensland authority dealing with that situation, but there is intermediate appellate authority in New South Wales dealing with such a situation.
[85] The first case is New South Wales v Paige (2002) 60 NSWLR 371.[90] In that case there was formal disciplinary action pursued against an employee of the Education Department in relation to what was alleged to have been a failure properly to perform his duties, and as a result of the way in which the investigation was undertaken the employee suffered psychiatric injury. It was held at trial that the disciplinary procedure had not been properly carried out in accordance with the requirements of the various statutory provisions governing such disciplinary procedures for such employees, and on this basis the employer was liable, but on appeal this was set aside, on the basis that there were administrative law remedies available in circumstances where there had been a failure to comply with the relevant statutory provisions, and that it would be inconsistent with the proper coherence of the law as a whole to impose an obligation on the basis of the law of negligence in a context where administrative law already dealt in a particular way with the rights and obligations of the parties.
[86] In addition, the Court was influenced by the decision of the High Court in Sullivan v Moody (2001) 207 CLR 562. In that case there was a police investigation into suspected sexual abuse of children by the appellants, which ultimately did not lead to any charges being brought, let alone succeeding. The plaintiffs claimed that they had suffered psychiatric injury as a result, but the High Court held that there was no duty of care owed by persons conducting investigations into such matters, on the basis that such a duty would be incompatible with other duties that the respondents owed, and there was the prospect that such a duty of care would give rise to inconsistent obligations on the part of officers and public authorities in such a context.[91] Sullivan was distinguishable on the basis that there was no relevant relationship between those plaintiffs and the authorities conducting the investigation, whereas in Paige there was an employer-employee relationship which would give rise to a duty of care to avoid psychiatric injury, but the New South Wales Court of Appeal essentially treated the considerations of inconsistent obligations, and coherence of the law, as excluding the existence of a duty of care in such a context.
[87] It seems to me of some significance that the matter was not approached on the basis that the coherence of the law required that there be no duty of care which required the employer to act in a way which was inconsistent with the employer's obligations under the requirements of administrative law. The position seemed to be that, in circumstances where administrative law would give remedies appropriate in that field to, for example, a failure to comply with the requirements of procedural fairness, there would be a lack of coherence if the law of tort also gave a remedy in damages for such a failure. In addition, concern that the proper investigation and pursuit of disciplinary issues might be compromised by the recognition of the need for the employer to exercise reasonable care to avoid relevantly psychiatric injury in such a context was applicable to a relationship of employer and employee as well as to a relationship of law enforcement authority and suspect. Accordingly, it was held in Paige that despite any deficiencies in the disciplinary process, the State was not liable for the plaintiff's psychiatric injury.
[88] A more recent case involving suspected wrongdoing arose in O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7. The plaintiff who was employed as a bookkeeper suffered psychiatric injury as a result of the way he was treated by his employer when the employer suspected him of misappropriating funds. Various things were done to make it more difficult for him to do this if he were doing it, but he was not told anything about the allegations against him or that he was being investigated. In that case the plaintiff failed at trial, and the Court of Appeal by majority dismissed the appeal. The majority considered there was an important distinction between stress and recognised psychiatric illness, and that the fact that an employee was placed under stress did not necessarily mean that a recognised psychiatric illness was reasonably foreseeable. Spiegelman CJ said at [18]:
"The reaction of the appellant to the evidence of suspicion of his conduct and of his progressive isolation was sufficiently idiosyncratic that it could not be said to be reasonably foreseeable that psychiatric injury, as distinct from non-compensable stress, could result from the respondent's conduct. Other considerations, such as vulnerability and control, do not outweigh this factor."
[89] In that case there was at one stage some investigation of the employee's condition, and the employer was provided with a certificate indicating a diagnosing of adult adjustment reaction leading to depression. The Chief Justice noted that there was no adequate basis in the evidence for assessing the standard of care, or linking the condition referred to in the certificate with the condition ultimately suffered, for which the plaintiff was suing: [19], [22]. Again in that case the Court held that it did not matter whether there had been breaches of administrative law obligations such as the obligation to accord natural justice, so that such a breach did not mean there had been a breach of a duty of care: [23].
[90] The plaintiff in that case failed notwithstanding criticism by the Court of the behaviour of the employer: Sheller JA, the other member of the majority, said at [57]:
"The behaviour of the defendant as an employer, towards the plaintiff as an employee, in several respects was wrong if not disgraceful. ...
[63] Undoubtedly, as a result of his experience in the defendant's workplace the plaintiff suffered a recognised psychiatric illness. Undoubtedly, and according to Dr McMurdo's evidence, the defendant should reasonably have foreseen that its conduct would have caused the plaintiff to suffer some form of workplace stress, which indeed he did suffer. ...
[67] In my opinion, particularly having regard to the limits of the opinion expressed by Dr McMurdo, it was, on the evidence, open to the trial Judge to find that the defendant could not reasonably have foreseen ... that a possible consequence of its conduct was that the plaintiff would suffer a recognised psychiatric illness. The plaintiff failed to prove that his injury was compensable. As the trial Judge put it, it was 'far too remote'. ..."
[91] Although that was a case where the psychiatric illness arose in the context where the employee was being investigated, inappropriately, for suspected wrongdoing, this aspect of the matter did not receive a great deal of attention in the majority judgments, though Paige (supra) was referred to by the Chief Justice. The case however is perhaps more clearly an example showing that the mere fact that workplace stress is reasonably foreseeable, with associated mental distress, does not mean that psychiatric injury to the employee is reasonably foreseeable, or at least does not mean that the content of the employer's duty of care extends to any particular requirement to take precautions to guard against it.
[92] There was another New South Wales case involving allegations of wrongful treatment by an employer giving rise to psychiatric injury where a judgment favourable to the plaintiff at first instance was overturned on appeal: New South Wales v Rogerson [2007] NSWCA 346. That case as it happened involved a police officer, but not one who suffered injury as a result of any particularly dangerous activity or situation that arose in the course of his duties. Rather, his case was that the employer was liable for the psychiatric injury he suffered because it had breached a duty to protect him from discrimination and victimisation arising from the fact that his brother was a disgraced former police officer. The case was based on a series of specific incidents. One of the incidents related to some comments made by a solicitor in the Legal Services Branch who spoke to the plaintiff at a time when it was expected that he would be called before the Wood Royal Commission, and who had asked him about (among other things) his relationship with his brother. The plaintiff became upset at this, but Handley AJA, with whom the other members of the Court agreed, said that the fact that he was visibly upset did not make psychiatric injury reasonably foreseeable: [12]. He also noted at [11] that the remarks were made in good faith and without any awareness of the plaintiff's special sensitivity about his brother: [11]. Accordingly there was no duty of care in relation to the psychiatric injury.
[93] Another matter that the plaintiff complained about was in relation to a failure to achieve a promotion, but the Court held at [26] that the employer owed him "no duty of care in the administration of the procedures for promotion to commissioned rank", citing New South Wales v Paige (supra). Another matter he complained about was comments made by a more junior officer in relation to his brother, which was related to the application for promotion. Handley AJA said of this at [31]:
"The Service cannot have a duty to prevent one police officer making hurtful comments to another who is not subordinate to him, or to protect its officers from the consequences of such comments. ... It was a one off event. There is no evidence that anyone in the Service knew that such remarks would be made and without advance knowledge nothing could be done to stop [the other officer] making them. ... It is not known how [the other officer] came to have this knowledge but the Service can hardly have a legal duty to prevent gossip circulating within its ranks.
[32] The plaintiff did not like [his Inspector's] response but that does not establish a breach of duty. There was no evidence that it was inappropriate, or that a responsible police officer in that position could and should have done anything more. ...
[35] In my judgment the Service owed no duty of care to prevent [the other officer] making the remarks he did, nor did it have a duty to investigate the plaintiff's complaint about those remarks."
[94] On the last point his Honour cited Sullivan v Moody (supra). There was a further issue relating to the transfer, without warning, of the plaintiff to another unit. In relation to this matter his Honour said at [38]:
"In December 1999 the plaintiff was transferred, possibly without prior discussion or consultation, to the Firearms Trafficking Unit. This was said to have been unwanted and unrequested. The absence of prior consultation, if this did not occur, might demonstrate some lack of sensitivity but that is all. The transfer was calculated to remove the plaintiff from what might reasonably have been thought to be a difficult, if not poisonous, situation in which he was subordinate to [the other officer] in the same branch of the Service.
[39] There was no common law duty of care owed to the plaintiff in this situation, and no breach of such a duty: compare State of New South Wales v Paige."
[95] Much of Ms Palmer's amended statement of claim contains matters which are uncontentious. With regard to paragraph 4, I have already said something about the duty of care of an employer. In relation to paragraph 5, I accept that Ms Palmer was told by Ms Hayes what she had been told by Ms Simpson: p 3-65. I accept that Ms Johnson was rude to and spoke over Ms Palmer in her interactions with her. Paragraph 5(h) should I think be a reference to Ms Johnson's appeal rather than the complaint about Ms Johnson; so understood it was uncontroversial, as was paragraph (i). In relation to paragraph (k), Ms Palmer was informed of the fact that allegations had been made about her; she said that she was told this by Mr Price.
[96] There was no direct evidence that Ms Palmer was told by Ms SteeleWareham as alleged in paragraph 4(e)(ii), but it is clear that she knew, although she was not at that time informed of the details of the allegations; that occurred during her first interview with the independent investigators. Paragraph (o) was not proved; on the evidence the Misconduct Prevention Unit analysed the complaints, and recommended that they be referred to the CMC, which occurred. As well, a senior officer of the Department recommended the appointment of an external investigator, which recommendation the Acting Director-General accepted.
[97] I accept that the fact that Ms Palmer would be removed from responsibility for rostering was disclosed to the union, and that this occurred without consulting with or the consent of Ms Palmer. There was no evidence that the plaintiff was involved in discussions about this change in duties with Ms Steele-Wareham or Ms Kill prior to the time when they were implemented, or that the plaintiff accepted this change. As to paragraph (u) there was evidence of an email from Ms Steele-Wareham to various people including Ms Palmer on 19 January, but in terms this indicates that the picket was already in progress at the time it was sent: document 39. Although paragraph (u) was admitted in the defence, there was actually no evidence that Ms Steele-Wareham was aware of the plan to hold the picket prior to its being held. By the time the email document 39 was sent, that the picket was in place was obvious to the occupants of the building. There was no specific advice that Ms Palmer would be a target of the picket.
[98] I accept that the allegations in paragraph (w) were made out. Although there was evidence that a notice about the results of the meeting on 16 January came to be inside the MSC at about this time, there was no evidence that the defendant allowed the distribution of that notice, so paragraph (x) was not made out. With regard to paragraph (cc), some of the language of the pleading is a little wider than was actually supported by the evidence, but broadly speaking I accept the facts alleged. The other facts in paragraph 5 were admitted except for the introductory proposition that as a result of those matters the plaintiff suffered symptoms of depression and psychological anxiety such that she was unable to attend work. That raises the question of whether the plaintiff suffered any and what injury, and when, and issues of causation, which are complex and I will treat them separately. Overall paragraphs (a)-(j), (l)-(n), (p)-(w), and (y)-(dd) were admitted or proved.
[99] The statement of claim in paragraph 6 alleged that the defendant is vicariously liable for the acts or omissions of Ms Johnson, Ms Steele-Wareham and other staff in their treatment of the behaviour towards the plaintiff as set out in paragraph 5. This was particularised as extending to others more senior to the plaintiff, and to those who made the complaints.[92] It is accepted by the defendant that it is liable for such acts or omissions where those acts or omissions were committed in the course of the employment of those persons. I do not think that there is any particular issue about vicarious liability for the acts of Ms Steele-Wareham, but the defendant certainly denied that it was vicariously liable for the relevant acts of Ms Johnson, or the RCOs.
[100] The test for vicarious liability in the context of some deliberate wrongful act undertaken by an employee was discussed by the High Court in New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511. In that case a number of judgments were delivered and there was no judgment which stands as a statement supported by a majority of the members of the Court. I am however relieved of the burden of having to analyse the effect of the various statements by the fact that this was undertaken in Ryan v Ann Street Holdings Pty Ltd [2006] QCA 217; [2006] 2 Qd R 486 by Williams JA with whom Fryberg J agreed. His Honour said at [18]:
"What emerges from the various judgments in Lepore is that the critical test, in broad terms, involves a comparison between the intentional wrongful conduct and the type of conduct the employee was engaged to perform. If there is a 'sufficient connection', or a 'sufficiently close connection', or a 'close connection', it will be open to the tribunal of fact to conclude that the wrongful act was done in the course of employment, albeit in an improper mode. The connection is of critical importance, and as Gummow and Hayne JJ noted at para [217] where the opportunity for abuse becomes greater, so the risk of harm increases. Essentially that means that where an employer clothes an employee with authority which, if abused, could lead to great harm, then (the risk being known to the employer) the easier it will be for a court to draw the conclusion that the wrongful act was done in the course of employment."
[101] The acts of Ms Johnson referred to in paragraph 5 are making the complaint against Ms Hayes, lodging the fair treatment appeal, and being rude to and speaking over Ms Palmer in her interactions with her. I can say at once that in my opinion the first and second of these were clearly not acts done in the course of her employment. Her job was to act in effect as supervisor of the RCOs who were working at particular houses caring for residents; it was no part of her job to be complaining about Ms Hayes or anyone else, nor was there any connection between her job and the making of that complaint, other than the fact that it provided a setting for the interactions between Ms Johnson and Ms Hayes which prompted Ms Johnson to make the complaint. The fact that the defendant has a mechanism in place for dealing with complaints by employees against superiors does not mean that the defendant is clothing the employee with authority to make such complaints, or that a complaint is or could be seen to be part of what the employee was employed to do. In my opinion it is clear that the defendant is not liable for these acts of Ms Johnson. The same applies to the acts of RCOs in making complaints.
[102] As to whether rude or overbearing behaviour towards Ms Palmer in their interactions were acts done in the course of Ms Johnson's employment, again in my opinion there is not a sufficient connection with Ms Johnson's job to make this behaviour something done in the course of her employment. Ordinarily misbehaviour between one employee and another at a personal level will not be something done in the course of employment. In circumstances where the employee perpetrating this behaviour is in a position of some authority over the victim such that it is part of the perpetrator's job to correct and perhaps to reprimand the victim, rude or offensive behaviour can be characterised as an improper way of performing the function of supervisor, rather than simply independent rudeness within the workplace, so that the employer will be vicariously liable for it. However Ms Johnson was not in any sense the supervisor of Ms Palmer, so that being rude to Ms Palmer and speaking over her could not be characterised as an improper means of performing a function which it was part of her job to perform. Accordingly I do not consider that these matters were things done by Ms Johnson in the course of her employment either. Paragraph 6, so far as it relates to the acts or omissions of Ms Johnson and the RCOs, was not made out.
[103] There was no dispute at the trial that Ms Palmer had suffered a psychiatric injury, namely major depression with associated agitation and anxiety, but there was an issue about whether this injury had been caused by the matters pleaded in paragraph 5, not all of which have been made out. After she went home on 17 March 2009 Ms Palmer saw her general practitioner who subsequently referred her to a psychiatrist, noting that she suffered from major depression.[93] At this stage the plaintiff was already seeing a psychologist, and was not keen to take antidepressants. The medical evidence as to the cause of the plaintiff's injury was fairly limited. On 18 October 2010 Dr Jenkins advised WorkCover that Ms Palmer remained unfit to work but was continuing to improve and thought that she should be reviewed in three to four months, that she remained positive and motivated, and that further progress was likely.[94] On 21 January 2011 Dr Jenkins said that she was not yet ready to return to work but there were prospects that she could work for someone other than DSQ in about three months' time; she would need continuing treatment until completion of recovery, and there had been some improvement since the last report.[95]
[104] On 3 August 2011 Dr Byth reported to the plaintiff's solicitors that she was suffering from major depression.[96] The history noted stress at work from around September 2008 as a result of the complaints and allegations being made by Ms Johnson and others. She also complained about not being told at first what the allegations were, and about being stood aside from her position, and not being given any other meaningful work to do.[97] The report noted that she had not previously taken stress leave, been recommended for counselling or been prescribed any psychotropic medication. Dr Byth was of the opinion that, because of the length of time that her condition had then been severe despite a good deal of treatment, she was unlikely to obtain a full remission after further treatment, and likely to be left with chronic moderate to marked depression and anxiety arising from her work. Dr Byth in that report said that the condition was caused by her difficulty coping with allegations about her at work and with her being stood aside and placed on other work while she was investigated over a long period, a feeling of being victimised by staff particularly Ms Johnson, and by her management presuming she was guilty until the matter was eventually investigated.
[105] Ms Palmer was seen by Dr Kann, a psychiatrist, on 16 August 2011 for the purposes of a report to WorkCover.[98] Dr Kann diagnosed an adjustment disorder with anxiety and panic disorder, and expressed the opinion that the prognosis was poor for return to work in any capacity either currently or into the foreseeable future, because of relatively fixed views about the risk of being targeted again in the workplace. In describing the history of the incident Dr Kann referred to the behaviour of Ms Johnson, and he described the condition as work related, but otherwise did not particularly comment on the cause of the development of the psychiatric injury.
[106] Ms Palmer was seen by Dr Gunn, a psychiatrist, in March 2012 for the purposes of a report to WorkCover.[99] Dr Gunn diagnosed chronic adjustment disorder. In a commentary on the report[100] Dr Byth differed as to the correct diagnosis, and stated that he disagreed with the contention that Ms Palmer's alcohol intake was contributing to her anxiety and depression. Dr Byth also thought that there was a more pronounced impairment of her capacity to function as a result of her condition (50/100) than that assessed by Dr Gunn (functioning 80/100). I note that Dr Kann gave an assessment of 60/100.
[107] A further report from Dr Byth dated 13 June 2012[101] referred to the plaintiff's condition as work-related anxiety and depression, but otherwise did not take the question any further. An updated report on 26 February 2014[102] confirmed the diagnosis, and noted that there had not been any improvements since 2011, and that she appeared to have become a psychiatric invalid. Her chances of improvement with further treatment were thought to be slim. He did not think that she would ever be able to return to disability work, with the best prospect of recovery being part-time work in simple duties with little responsibility. Even then, she would have problems because of her continuing condition. There was however no discussion in this report about the cause of her condition.
[108] In oral evidence Dr Byth identified a number of features which would have been stressful to her: having the allegations made against her, not knowing the exact nature of the complaints that were made, being moved out of her position and given more menial work to do, being given the impression that at least some in management were assuming that the complaints were justified, and having to see Ms Johnson in particular, and to some extent other people who were complaining about her, at work.[103] He said that the second and fourth things would have aggravated the severity of her condition, and in relation to the third, this would have been significant because she had personality traits which made her relatively inflexible, and had difficulty in adjusting to the change: p 5-11. He considered that greater support from management, being given time off work earlier or being moved to a different location for work would probably have reduced the severity of her condition: p 5-13.
[109] Subsequently Dr Byth signed a note made of a telephone conference with the counsel for the plaintiffs which became Exhibit 42. Dr Byth expressed the opinion that the exposure of the plaintiffs to the picketing was a definite contributing factor to the development of their psychiatric injury whether or not they were at the office at the time.[104] He also spoke about the absence of support from management, particularly at the time of picketing. He expressed the view that there was a snowballing effect in terms of the development of their injury with factors continuing to increase their anxiety as time went on. They appeared to be treated as guilty, with the statements that the RCOs could not be wrong. He thought it was an accumulation of factors which led to the development of the psychological injuries. He also expressed the opinion that the injury, apparently to each plaintiff, would have been foreseeable when one considered all the circumstances. He did not expect that Ms Palmer would get back to work because of the severity of her condition; he was concerned that she was becoming resistant to treatment.
[110] Under cross-examination Dr Byth confirmed his opinion that being stood aside from her job without being given equivalent work to do[105] was a pretty significant psychological blow to Ms Palmer: p 10-12. He also confirmed that in general matters mentioned by a plaintiff would have been the matters that were significant in contributing to her psychological state, but that there was at least a possibility that there were relevant things which she had not mentioned, because she was reluctant to discuss those particular incidents: p 10-6.
[111] For practical purposes the evidence of causation depends on the evidence of Dr Byth. I accept his evidence, and accept that the matters referred to by him caused Ms Palmer's psychiatric condition. The effect of his evidence was that of the matters referred to in paragraph 5 of the statement of claim there were a number which, together with some other things, caused the injury: the behaviour of Ms Johnson towards Ms Palmer (f),[106] the allegations made by the various people against Ms Palmer and others (j), the fact that the plaintiff was initially not informed of the details of the allegations (k), Ms Palmer's being removed from her rostering responsibilities, and not being given other substantial work to do (p), and the effect of the picket in January 2009 (w).
[112] I also accept that the effect of Dr Byth's evidence is that it was the combined effect of all of those matters which resulted in her developing the psychiatric condition that she came to develop, the subject of the claim. This is not a case where there were a number of factors acting and the evidence does not permit an inference to be drawn that a relevant factor or factors was at least a cause of the plaintiff's injury; rather it is a case where there were a number of factors which together produced the plaintiff's injury, and in those circumstances each of those factors is a cause of the injury unless in the case of a particular factor its contribution can be characterised as de minimis. The analogy is with the dust in Bonnington Castings[107], rather than with the asbestos fibres in Ellis.[108]
[113] The submissions for the defendant stressed that the plaintiff was suffering major depression as early as 17 March 2009, so that subsequent events could not have been a cause of her injury. That is not the effect of Dr Byth's evidence. As I understand it, the plaintiff's ultimate psychiatric condition was caused by the combined effect of the various matters he had identified as significant, so they were then all causes of that injury. That remains the case, even if, at an earlier time, the plaintiff suffered a psychiatric condition caused by the significant factors up until then, and it would have had the same diagnosis, that is, the same label. The effect of the additional stressors was that it was, in principle, a different injury, and may well have had a different course and level of severity.
[114] The statement of claim then alleged that the events in paragraph 5 were occasioned by the negligence and/or breach of duty and/or breach of contract by the defendant,[109] its servants or agents, as particularised in paragraphs 9 to 16. For practical purposes therefore the matters relied on by the plaintiff as constituting negligence are the matters identified in those paragraphs. Paragraph 9 alleged an omission to provide support or adequate support in circumstances where various things had happened. Most of the particular matters alleged have already been dealt with; the matters in paragraphs (a)-(d) fall into this category and have been proved. Paragraph 9(e) alleged the plaintiff's awareness that Ms Steele-Wareham had said words to the effect that "so many people would not have made complaints if they weren't true". That she said this was disputed.
[115] Ms Palmer said that this occurred in a conversation with her on 2 February 2009, which Ms Steele-Wareham denied.[110] Ms Greenhalgh said that something similar was said to her in a meeting with Ms Steele-Wareham at some time which she could not identify but which was during or after the picketing in late January 2009.[111] Ms Steele-Wareham also denied this: p 9-15. It is also apparent that news that something to this effect had been said by her spread among the management team.[112] This suggests that the statement was made to Ms Palmer. There is also the consideration that when Ms Steele-Wareham attended the meeting of RCOs on 16 January her impression was that the matters being complained of had some substance attached to them: p 9-82. Such an attitude strikes me as consistent with something like that being said.
[116] There is also the consideration that the evidence of all of these plaintiffs is of an absence of sympathetic support from Ms Steele-Wareham in relation to any aspect of this dispute. That is reflected in the documents which came from Ms Steele-Wareham; there are several instances in those documents where there is a manifestation of at least a superficial respect for the position of the complaining unionists,[113] but I have not noticed anything in any of the documents which manifest anything which could be regarded as support for the management team, or indeed support for the ordinary processes of management generally. That is consistent with my impression of her in the witness box.
[117] On a broader basis, this is illustrated by the difference between the approach of Ms Kill and the approach of Ms Steele-Wareham. Ms Kill in her evidence emphasised that her instructions were that the officers who had been stood aside were to be told that they were still employees in good standing, and that this was a temporary step pending the inquiry which had been made necessary by the industrial situation, and the importance of continuing service provision to the residents. There was no evidence, even from Ms Steele-Wareham, that she even attempted to give effect to this instruction. She did not get it directly from Ms Kill, and it is possible that it was lost in the chain of command. Her behaviour towards the plaintiffs was rather consistent with their being under serious suspicion, perhaps best illustrated by the instruction to them that they were not to talk to each other or to their union.[114]
[118] There is also the consideration that she was at least the third, possibly the fourth, person to take over the management of the MSC, and she was being promoted to the RCOs as somebody who was at least not unsympathetic to their position. In the circumstances, it would have been understandable for her to have the attitude that the easiest way to calm the situation in Maryborough was to appease the RCOs, which could have led her to manifest a lack of sympathy for the plaintiffs. In this context, overall I prefer and accept the evidence of Ms Palmer, that Ms Steele-Wareham did say such a thing to her.
[119] As to paragraph 9(f), there was no evidence that Ms Steele-Wareham had refused to reveal the fact that complaints had been made to Ms Palmer, and Ms Palmer knew of the complaints in about mid-January. She was told the general nature of the complaints, though not the detail of the complaints until the actual date of the interview, and there was no evidence that she was told that she was presumed by the Department to be innocent. As to the omission to provide detailed information about the substance of the allegations, this was explained by Mr Smith as being essentially a function of the large number of allegations which had been made. There was some analysis of this mass of complaints by the Misconduct Prevention Unit (document 56), but it was at a fairly superficial level, and thereafter the complaints were handed over first to the CMC and subsequently to the independent investigators, who would have spent some time in isolating the various complaints, and coming to grips with the question of just what was alleged against whom.
[120] It does seem to me to be plausible enough that this process would have delayed the identification of the detail of what was alleged against particular individuals, so that inevitably it would take some time before it would even be possible to provide details of the complaints against, relevantly, the plaintiffs. It is apparent as well that initially some consideration was given to the detail of the complaints, because of the process of culling something like 200 complaints down to about 100 that were actually investigated in detail. That would also have taken time, but it was obviously reasonable not to advise details of complaints in circumstances where it had not been decided whether all of them would be investigated.
[121] The CMC procedures in relation to giving notice of details of the complaints which were referred to in evidence indicate that in some circumstances it would not be appropriate to provide details of the complaints prior to the interview for the investigation,[115] but there was no particular reliance on those procedures by the defendant; rather the defendant simply emphasised that the sheer volume of the complaints made it impractical to provide detailed notice to the subject officers. There is also the consideration that, to the extent that as a result they were not at the interviews able immediately to respond to the complaints, this difficulty was accommodated by subsequent interviews once relevant documents had been assembled. This was illustrated by the process that was followed with Ms Palmer; in the first interview the details of the complaints made against her were provided and discussed, and she was then interviewed subsequently so that she could provide the documents which served to support her version and assisted in refuting the allegations against her.
[122] In the circumstances that does not strike me as an inherently unreasonable way for the investigators to proceed. The plaintiff does not allege that this was negligence in itself, but rather that this provided a context within which there was a negligent failure to provide support. I accept that in fact Ms Palmer was not made aware of the details of the complaints against her prior to the first interview, but this was due to the approach adopted by the investigators and not to any refusal on the part of Ms Steele-Wareham to provide that information.
[123] As to the question of whether support or adequate support was provided, it does seem to be true that there was initially little in the way of support provided except for the reference to the employee assistance scheme, under which employees could access counselling at the expense of the Department. Later some support was provided by Ms Stokes.[116] The issue is whether there was an obligation to do more imposed by a duty of care to avoid psychiatric injury.[117] Counsel for the plaintiffs did not submit that there was negligence simply because complaints had been made and they were being investigated, or because the plaintiff had been removed from her position; rather it was said that the negligence related to a lack of support in the context where this had occurred. But it does not appear to me that this is a meaningful distinction.
[124] The need for support, if it existed, arose because the complaints were made against the plaintiff, and they were being investigated, which would be productive of anxiety for her, and because her being removed from her position would also be productive of anxiety for her. It follows from the decisions in New South Wales to which I have referred[118] that there can be no duty of care arising in such circumstances directly from the fact of the allegations, the investigation, or the removal from the position. It would in my opinion be inconsistent with that approach to say that, although there was no duty not to cause psychiatric injury by doing those things, there was a duty to provide support in response to those things so as to avoid psychiatric injury. In my opinion, there was no duty to provide special or additional support arising from the fact of the investigation of the complaints, and the removal of the plaintiff from her position.
[125] In case a different view should be adopted elsewhere, I should say something about whether, if there was a duty to provide support in the context of the investigation and Ms Palmer's being moved out of her ordinary rostering job pending the investigation, I consider that there was a breach of that duty. Ms Kill gave evidence as to how she wanted the plaintiffs, including Ms Palmer, to be treated in relation to the communication of the decision to move her out of her position, and the evidence was that those instructions were not complied with. There was no other evidence on the subject, but what she said struck me as reasonable, and in circumstances where the defendant has itself in effect set the standard for behaviour it is not difficult to conclude that a failure to live up to that standard reflects a lack of reasonable care on its part, and that the failure to carry out her instructions amounted to negligence on the part of whoever failed to do so, or to transmit them down the chain of command, for which the defendant is vicariously liable. Nothing else was done to provide support for her at this difficult time, apart from the provision of the EAS. That was I consider a reasonable response to the ordinary risk of harm from ordinary stress at work, but I consider that something more ought to have been done to show support for her if there was a duty to provide support in this specific situation, and nothing was done. It follows that the duty was breached.
[126] It is probably unnecessary for me to go on and deal with the various matters particularised as ways in which the defendant ought to have provided support.[119] I will however say something on a precautionary basis. I consider that there was no good reason to direct the plaintiff to refrain from communicating about the dispute with management and administration staff, although there was good reason to direct her not to communicate with the AWU members who were complaining about her, until the complaints had been resolved. There was no reason for the plaintiff to be involved in the Industrial Relations Commission hearing, and no evidence that any involvement by her would have been accepted by the Commission. I do not think it was realistic to attempt to deal with this dispute once it had escalated in terms of the Grievance Resolution policy quoted in the particulars. Refraining from reinvestigating the original complaint was not a viable option, particularly when it had never been investigated properly. It was reasonable in the circumstances to remove the plaintiff from her position, and to tell the union of this decision in response to the industrial relations situation. I have dealt elsewhere with the substance of the matters in paragraph 6(d), (e), (g), (j), (k) and (l) of the particulars.
[127] Accordingly if persuaded that a duty of care to avoid psychiatric injury did arise in this context, I would have held that it had been breached. It is apparent that the fact that Ms Palmer was moved out of her rostering job was a matter of particular significance in the development of her psychiatric illness, particularly when there was really no alternative position available for her within the MSC, so that almost inevitably this had the effect of depriving her of other than menial work, which she would readily identify as something akin to punitive action. On the other hand, it follows from the evidence of Dr Byth that, had support in this way been provided, she would probably not have developed the psychiatric injury from which she came to suffer.[120] Breach and causation would both be proved.
[128] The remark about whether the complaints were justified is in a different category. Ms Steele-Wareham was not investigating the complaints, and it was no part of her job to make any decision about whether or not they were justified. The remark was gratuitous, inappropriate and offensive. It is however a large step to conclude that that in itself amounted to a breach of duty for which the defendant was liable. At this time there was no history of psychiatric illness on the part of Ms Palmer, and no particular reason to think that she was vulnerable to have such an injury. She had complained about Ms Johnson's behaviour to her, and about the stress associated with the picketing and union action, but the authorities distinguish between the foreseeability of stress and the foreseeability of psychiatric injury, and do not support a duty to act to avoid psychiatric injury just because of knowledge of the presence of stress.[121] That she would be upset, distressed and stressed by such a remark was certainly foreseeable, but it does not follow that it was reasonably foreseeable that such a remark would cause actual psychiatric injury. What occurred was not analogous to the sort of abuse by a superior that occurred in Naidu and Wolters (supra). In all the circumstances I am not persuaded that such injury was a reasonably foreseeable consequence of such a remark, so no duty or breach of duty arose in respect of it.
[129] In relation to paragraph 10, this related to various residential care officers who had made complaints about the plaintiff,[122] but the conduct referred to appeared to relate to the making of those complaints which were the subject of the investigation. The individuals were entitled to complain and the fact that the complaints were not substantiated does not mean that they were not permitted to make them, or that the Department had in some way caused the unjustified complaints to be made. This cannot be the foundation of an allegation of negligence against the defendant.
[130] Paragraph 11 alleged a failure to comply with the Risk Management Code of Practice 2007. This was particularised in paragraph 7 of the second response to the request for further and better particulars, but in a very broad way. The applicable code of practice was in evidence (Exhibit 15), but I received no assistance by way of expert evidence as to how the code ought to be applied, or how it would ordinarily be applied.[123] The only evidence on the subject of the code of practice was that Ms Kill said that she did undertake a risk assessment in relation to the decision to move Ms Palmer and others out of their positions because of the industrial situation, and appeared to consider that the dominant risk was one of continuing conflict between them and the disaffected RCOs if they remained in their positions, which could be stressful to them and which might even expose them to worse harm.[124]
[131] Part of the difficulty I face is that the code of practice is expressed in very general terms, and it is difficult to see that it required any particular form of assessment to be undertaken at any particular stage of this process. A more substantial deficiency is that it has not been shown that if a risk assessment had been undertaken at any relevant stage of this process a risk of psychiatric injury to Ms Palmer as a result of anything which was in fact then done would probably have been identified,[125] and that as a result that particular step would probably not have been taken. In those circumstances it has not been shown that any failure to undertake a risk assessment at any particular stage was relevant.
[132] It was alleged in paragraphs 12 and 13 that there was a failure to comply with the Prevention of Workplace Harassment Code of Practice and a failure to comply with DSQ's policy regarding zero tolerance for workplace bullying and harassment.[126] There was evidence that Ms Palmer had complained about the behaviour of Ms Johnson referred to in paragraph 5(f), but it is not clear that this amounted to bullying or harassment for the purposes of those policies, rather than just rudeness, and in any event it does not appear that there was ever a formal complaint made by Ms Palmer, nor was it shown that any particular behaviour should have triggered any other disciplinary action on the part of the defendant towards Ms Johnson.[127] I suspect that in practice that may not be something that happens very often in the absence of a formal complaint, but there was no evidence on the point. This allegation was not made out, because there was no evidence that the proper application of these policies would have resulted in any particular step being taken at a particular time, which would probably have averted any relevant cause of the plaintiff's psychiatric injury.
[133] Paragraph 14 alleged a failure to implement strategies to protect the plaintiff from harassment and public vilification at her place of employment; this seemed to be a reference to the failure to implement strategies to protect the plaintiff from the effects of the picketing, though it is by no means clear from the particulars[128] that it is confined to this. What is alleged in those particulars that ought to have been done was apparently those things set out in paragraph 8 of that second response,[129] which referred to the implementation of a risk management process about which I have already said something.
[134] The defendant was not responsible for the fact that a picket occurred, or for the conduct of the picketers, even if they were employees of the defendant, because this was obviously not something done in the course of their employment. There was no evidence that anything in particular which would have been useful in terms of improving safety and a sense of security of persons inside the office at that time could or should have been done, and it is by no means obvious to me that there was any step which was available to the defendant, short I suppose of evacuating the building, which would probably have been effective in terms of reducing stress to those people who were inside at the time. I am certainly not persuaded that anything could have been done in a practical sense by way of controlling the picketers, and any attempt to do so might have been counterproductive. It appears that those who were inside the building who wished to leave were allowed to do so,[130] and on the evidence there is no basis on which I could find that there was any negligence on the part of the defendant in failing to do more in response to the picketing.
[135] In so far as this allegation as particularised in fact goes further than the picketing, I am not persuaded that it is made out. In respect of picketing, it appears to duplicate the allegation in paragraph 16, alleging a failure to control or attempt to control picketers, and I am not persuaded that there was anything useful that could have been done by the defendant in this regard; certainly there was no evidence supporting the plaintiff's case on this point.
[136] That leaves the allegation in paragraph 15 of failing to provide information about the allegations to the plaintiff in a timely manner. I have already said something about this, and it plainly did not amount to negligence on the part of the defendant. The provision of information about the substance of the allegations was under the control of the independent investigators, and the failure to provide the information earlier was in practice caused essentially by the number and complexity of the complaints being investigated. In any event, this is clearly within the policy limitation, that there is no duty in relation to an investigation.
[137] In these circumstances it has not been shown that the defendant was negligent towards the plaintiff Ms Palmer in any of the respects relied on in the statement of claim.
[138] I have dealt previously with the duty of care of an employer. In relation to paragraph 5 of the statement of claim, there is a considerable overlap with the matter of Palmer. Apart from the matters admitted in the defence in paragraph 4(a), I accept that paragraph (b) was proved, since I accept Ms Harris' evidence that she was told by Ms Hayes that she had been found guilty by Ms Simpson: p 4-58. I accept that Ms Johnson was rude to and spoke over Ms Harris as well, though it is not clear that this only started in December 2008: p 4-58. There was no evidence that any action was taken by the defendant to counsel Ms Johnson or control her behaviour in response to the complaints by Ms Harris,[131] though her evidence of what she was told by Mr Costello suggests that something might have been in train, which was intercepted by the escalation of the dispute in Maryborough. The defendant alleged that Ms Johnson was counselled about her behaviour (defence para 4(d)) but there was no evidence of that in relation to the complaints of Ms Harris. I am however not prepared to find that no action was taken at all to counsel Ms Johnson or to control her behaviour.[132]
[139] Paragraph (o) was not made out; there was some preliminary analysis of the complaints, sufficient to determine that they should be referred to the CMC, which is what occurred. I accept that when she returned from recreation leave Ms Harris heard a rumour to the effect that "they're going to get Edith now", but on the admission in Exhibit 1 she returned from leave on about 26 January 2009; subject to the modification of the date, paragraph (p) was made out. I accept that in response the plaintiff approached Ms Steele-Wareham, and asked her about the matter but that she was told that it had nothing to do with her or that she was not involved: and to stop worrying about it: p 4-62.[133] I accept that paragraphs (q) and (r) were made out. I accept that the plaintiff approached Ms Steele-Wareham between January and April 2009 in response to the rumours, but there was no evidence that she told Ms SteeleWareham how emotionally upset she felt about the situation, and Ms Steele-Wareham had no recollection of such a thing occurring, so paragraph (s) was not made out. For reasons given earlier, I accept that paragraph (cc) was made out, but paragraph (dd) was not, because there was no evidence that the presence of the Union notice inside the MSC had anything to do with the defendant. Overall, paragraphs 5(a)-(f), (h)-(n), (p)-(r), (t)-(cc) and (ee)-(hh) were admitted or proved.
[140] The statement of claim alleged vicarious liability for the acts and omissions of Ms Johnson, Ms Steele-Wareham, Mr Costello and other staff in respect of the behaviour in paragraph 5. This was particularised as extending to more senior officers, and to the RCOs who complained.[134] For the reasons given earlier, I do not accept that the defendant is vicariously liable for the acts or omissions of Ms Johnson or the RCOs in respect of those matters; I do not think vicarious liability was otherwise contentious.
[141] Ms Harris was seen by Dr Jenkins, a psychiatrist, from June 2010; in October 2010 he advised WorkCover of a diagnosis of adjustment disorder: Exhibit 4, document B7. At that stage her condition was not stable and he thought she had a very good long term prognosis.
[142] Ms Harris was referred to Dr Chalk, a psychiatrist on 23 February 2010 for the purposes of a report: Exhibit 4, document B14. At the time of the report Ms Harris was working eight hours per week in a return to work programme, and was continuing with medication and counselling from a psychologist in Hervey Bay. Dr Chalk diagnosed a chronic adjustment disorder with depressed mood which was caused by events at work, though he did not deal in detail with the particular causes. He thought the treatment she was receiving was appropriate, as was the rehabilitation programme, and he thought she would be likely to be able to return to fulltime work although it would take some considerable time. He noted that she seemed to be determined to get back to her previous position. The continuing symptoms were said to be attributable to a work related condition, but that her prognosis was basically good in the long term, and the condition was not yet stable.
[143] Ms Harris was seen by Dr Byth on 26 July 2011 for the purposes of a report to her solicitors: Exhibit 4, document B17. Dr Byth diagnosed adjustment disorder with anxiety and depressed mood. He noted that during the interview she spoke with an anxious tremor of the voice, and appeared to be subjectively quite distressed throughout. That is consistent with Ms Harris' presentation at the trial. All of the plaintiffs became upset at one stage or another during their evidence, but Ms Harris was in tears for most of the time she was in the witness box. Dr Byth in that report has said that Ms Harris had difficulty coping with the allegations of harassment, falsifying documents and racial discrimination, and she was upset when these matters were subject to investigation. She was also upset that she and her accused colleagues were redeployed, and she was relieved when the allegations were found to be unfounded. She then found she was struggling with returning to work, and she felt very sensitive to reminders of being under complaint at work.
[144] Dr Byth was incorrect in respect of one matter; although the other plaintiffs were redeployed, Ms Harris remained in her position as team leader throughout, though for a time when she was working limited hours she was also working on a limited basis, in that she was not going to the houses or having direct contact with the RCOs. Dr Byth noted that the anxiety and depression had caused marked subjective distress, and were more severe than were usually seen under such circumstances. Dr Byth expected partial improvement with further counselling and anti-depressant medication over the next three years, but did not expect her to obtain full remission, and she would be likely to be left with chronic moderate to marked anxiety and depression despite further treatment. He attributed her condition entirely to stressful circumstances in her work during 2009-10, but was not more precise about the matter.
[145] Dr Chalk saw Ms Harris again on 5 December 2011 for the purposes of a further report: Exhibit 4, document B28. At that stage Ms Harris had been doing her previous job for the last three months. She was still taking medication, and still seeing Dr Jenkins, though at lengthening intervals. Dr Chalk thought she was a great deal better than she had been, but still suffering from lingering symptoms of a chronic adjustment disorder though they were minimal; he thought her condition had stabilised and reached maximal medical improvement. Her thought content reflected mild anxiety and depressive symptoms and her mood was one of mild depression.
[146] Dr Byth interviewed Ms Harris by telephone on 26 February 2014 for the purposes of an updated report: Exhibit 4, document 18. Ms Harris was back working full time, and reported that she was throwing herself into her work as a means of coping with anxiety. Nevertheless she was still having problems at work if there was any disagreement with any other staff member. Within the previous six to eight months her antidepressant medication had been increased. His diagnosis remained adjustment disorder with anxiety and depressed mood, along with some PTSD-like symptoms. He thought that this was still of moderate severity and was guarded about the likelihood of further improvement, since he thought her depressive symptoms seemed to be becoming treatment-resistant. He thought that her persistence with work was an obsessive-compulsive defence mechanism in an effort to control her anxiety and depression. In these circumstances she was likely to need significant periods of sick leave each year, and she remained significantly psychiatrically impaired. Dr Byth also commented on a report of Dr Gunn, which was not in evidence; Dr Byth thought that her global assessment of functioning was 60/100.
[147] I accept Dr Byth's evidence that the plaintiff is suffering from an adjustment disorder with anxiety and depressed mood. The evidence referred to indicates that Dr Byth attributed the plaintiff's difficulty to coping with the allegations made against her, and their investigation, and the redeployment of her colleagues. He also stated in paragraph 13.2 of B17 that the condition was caused by the allegations made against her, and difficulty coping with the subsequent investigation, and feeling hurt that they were made by some of her previous friends of work. She was also anxious about returning to work with staff who had complained. In oral evidence Dr Byth confirmed that continuing exposure to staff she felt had complained unfairly about her aggravated her condition: p 5-15. He thought the fact that it appeared to her to be an organised conspiracy to complain about a large number of people made her more anxious and depressed and more suspicious of further problems with those who had complained: p 5-15.
[148] Dr Byth said in his opinion her approach of persisting in the job does not work in the long run and people have periods of decompensation when some stressful event occurs: p 5-16. He also thought that her personality would make it difficult for her to cope with changes in the workplace, and that this resistance to change was part of the reason for her desire to stay in the same job: p 5-16. Dr Byth thought that if the approach of management to Ms Harris had been more supportive, or if she had had that perception, she probably would have felt more secure and not developed so much anxiety and depression: p 5-18. An example of an inability to cope with stress was when she was asked to have a less flexible part-time working programme: p 5-18.
[149] The file note of the telephone conference on 8 April 2014 (Exhibit 42) referred to the effect of the picketing in general terms, and expressed the view that it would have contributed to the development of their injuries even in the case of someone like Ms Harris who was not present. He also thought that when Ms Harris found out that what she had initially been told by Ms Steele-Wareham had not been correct, she found that absolutely devastating. Under cross-examination Dr Byth thought that even before Ms Harris came back to work she was anxious and depressed because of concern about whether she had a job to come back to or how bad the situation was going to be, because of the conflict that had developed: p 10-14. He understood that she heard on 14 April 2009 that she was being investigated, and had told Dr Byth that she found that devastating: p 10-14. He said that Ms Harris found her professionalism and caring nature towards the clients being questioned to be very stressful: p 10-15. He said that Ms Harris, like all the plaintiffs, felt that the management had determined that they were guilty prior to the end of the independent investigation: p 10-17.
[150] Again for practical purposes the evidence of causation depends on the evidence of Dr Byth. I accept his evidence, and accept that the matters referred to by him caused Ms Harris' psychiatric condition. The effect of his evidence is that there were a number of matters referred to in paragraph 5 which together, and together with some other things, caused the injury: the allegations by the various people against Ms Harris (w-y), the fact that Ms Steele-Wareham had initially told Ms Harris that there were no complaints against her, which was not true (q-s), and the effects of the picket (cc). Again the effect of Dr Byth's evidence was that it was the combined effect of all the matters which resulted in her developing the psychiatric condition she came to develop so that each of them was a cause of that condition; the analysis is the same as with Ms Palmer.
[151] Again for practical purposes the matters relied on as constituting negligence are the matters identified in paragraphs 9 to 16. As to the specific circumstances alleged in paragraph 9, paragraph (a) was not contentious.[135] I accept that paragraphs (b) and (c) are made out on Ms Harris' evidence. For reasons given earlier, I accept that Ms Steele-Wareham did say, though not to Ms Harris, words to the effect of "so many people would not have made complaints if they weren't true", and that Ms Harris came to hear about this having been said: p 4-75. I accept her evidence that Ms Steele-Wareham did not tell her that complaints had been made against her, the nature of the complaints or that she was presumed innocent by the defendant, prior to the date in mid-April where she was informed by Ms Steele-Wareham of the fact of the complaints and that she was included in the investigation, though not that she was presumed innocent. In circumstances where it was admitted on the pleadings that from 14 January 2009 Ms Steele-Wareham was aware of allegations against Ms Harris, and Ms Harris asked Ms Steele-Wareham whether there had been any allegations made against her after that date, I find that on those occasions when she was so asked, Ms Steele-Wareham did refuse to reveal the matters referred to in paragraph (e).
[152] That these things occurred however is not in itself relied on as constituting negligence; rather the structure of the pleading is that the defendant took no steps or action to provide support or adequate support to the plaintiff in such circumstances. In fact the evidence is that Ms Harris was given a certificate for a week off work[136] almost immediately after returning from recreation leave in late January 2009. Ms Harris took a week off in March 2009 because she was so stressed by being told that they were now out to get her: p 4-72. However she wanted to work and continued to do so. Ms Harris said that she was very upset about the fact that Ms Steele-Wareham had told her that she was not involved when that was not true: p 4-71. She was also upset about the fact that false complaints had been made against her, trying to discredit her history as a person and as a public servant: p 4-70. At the end of June 2009 she again took time off work because of stress: p 4-73. She returned to work on a graduated programme in October 2009, initially not going to the houses, on the recommendation of her doctor. In about September she was offered some counselling through Psycare, but found that they were also offering assistance to the RCOs, and did not want to be associated with them; she felt like they were there to support the RCOs and not to support people like her: p 4-76.
[153] As to the question of what support was provided, as I said before little in the way of support was provided except for the reference to the employee assistance scheme; however the basis upon which the need to support was said to arise was essentially because of the making of the complaints, and as I said earlier I accept that in the light of the decisions of the New South Wales Court of Appeal there was no duty to provide particular support in response to the complaints and the investigation. In the present case however a duty to provide support was alleged to have arisen because of the initial refusal to reveal the fact that complaints had been made against her, because Ms Steele-Wareham had met with members of the AWU on 16 January 2009, and because she had expressed the view that the complaints must be true.
[154] I do not consider that the fact that Ms Steele-Wareham attended, indeed organised, the meeting on 16 January 2009 gave rise to any duty to provide support to Ms Harris, or any other plaintiff; I accept that this was arranged essentially to obtain information for Ms Kill about the situation in Maryborough, and do not consider that that in itself gave rise to any duty to support the plaintiff. As to the other two specific matters alleged against Ms Steele-Wareham, I accept that these occurred, and that this was quite inappropriate conduct on the part of Ms Steele-Wareham, but as with Ms Palmer it is a large step to conclude that that in itself amounted to a breach of duty not to cause psychiatric injury. Again at this time there was no history of psychiatric illness on the part of Ms Harris, and no particular reason for Ms Steele-Wareham or anyone else to think that she was vulnerable to such an injury.
[155] Ms Harris was suffering from stress prior to the time when she returned to work, but not because of these matters; on the evidence the statements expressing acceptance of the complaints were made after this time, but they were not made directly to Ms Harris. It ought to have been apparent to Ms Steele Wareham at the time when Ms Harris was asking whether there had been complaints against her that Ms Harris was concerned and anxious about the matter, but I do not think that it was reasonably foreseeable that, if she was told incorrectly that she was not involved at that stage, in circumstances where it was likely in time to become apparent to her that that information was incorrect, this would foreseeably cause psychiatric injury, rather than simply stressing and upsetting her. It might well have been thought that attempts to make her believe that she was not involved would reduce the stress that she was suffering at that time, and that this benefit to her would outweigh any ultimate disadvantage that she suffered in terms of her psychiatric wellbeing as a result of finding out what she had been told earlier was not true.
[156] Although the test for reasonable forseeability is not a high one, it is apparent from the authorities that it does not follow simply from the fact that a person is exposed to something likely to be found unpleasant, distressing or stressful. On the whole, I am not persuaded that there is a duty not to cause psychiatric injury in this way, and therefore necessarily there was no duty to provide support to avoid or reduce the risk of psychiatric injury in such circumstances. In any case, even if the risk of psychiatric injury was reasonable foreseeable, I do not consider that the risk was so great as to justify any particular precaution in response.
[157] I should perhaps say, on a precautionary basis, that if there was a duty to provide support, it is fairly clear that at least in the early stages, nothing useful was done with a view to providing support for Ms Harris. Later some counselling was available through Psycare,[137] but in circumstances where the counsellors were also being made available to the RCOs, it strikes me as quite unrealistic to expect someone in Ms Harris' position to attend the same counsellors, where she was likely to run into people who had been complaining about her. Accordingly if there were a duty to provide support I consider that it was breached. In effect, nothing useful was done. The effect of Dr Byth's evidence was that Ms Harris' condition would probably not have been as bad if support had been provided at an early stage, and in those circumstances I accept that the lack of support was a cause of the development of a psychiatric injury from which Ms Harris did ultimately suffer. It is unnecessary to deal with the particulars of lack of support, which were largely misconceived.
[158] Paragraph 10 was again particularised by reference to the RCOs who had lodged complaints about the plaintiff. This apparently related to the making of the complaints that were the subject of the investigation, together with Mr Costello and Ms Steele-Wareham.[138] For the reasons given earlier, making the complaints cannot be the foundation for an allegation of negligence against the defendant.
[159] The conduct particularised was that in paragraphs 5(e), (g), (o), (q), (r), (s), (t), (u), (w), (z), (aa), (cc), (dd) and (ee) of the statement of claim. Paragraphs (g), (o), (s) and (dd) were not admitted or proved. Paragraphs (e), (q), (t), (w), (cc) and (ee) did not refer to conduct by Mr Costello or Ms Steele-Wareham. I am not persuaded that the behaviour of Ms Steele-Wareham, in telling the plaintiff in effect not to worry about the rumours, was inappropriate and unreasonable in the circumstances. There was no evidence to that effect, and no evidence that the plaintiff's condition would probably not have been as bad if she had been told the truth from the beginning. Paragraph (u) was not inappropriate and unreasonable; the complaint against the plaintiff was in substance that she was a party to racial vilification, so it was not unreasonable to tell her that. For reasons given elsewhere, there was nothing unreasonable or inappropriate in the conduct referred to in paragraphs (z) and (aa). Overall, the allegations in this paragraph were not made out.
[160] Paragraphs 11, 12 and 13 referred to a failure to comply with the Risk Management Code of Practice, the prevention of Workplace Harassment Code of Practice and the Department's policies and procedures in relation to workplace bullying and harassment; for the reasons given in relation to Ms Palmer, no basis for a case of negligence was shown in relation to any of these matters. Paragraphs 14 and 16 related to the picketing; for the reasons given earlier I am not persuaded there was any negligence in relation to the way in which the picketing was handled.
[161] Finally paragraph 15 alleged there was negligence in failing to provide information to the plaintiff about allegations against the plaintiff in a timely manner. There were two aspects to this it seems to me: first, the failure to provide detailed information about the nature of the complaints; this is in essence the same allegation that was made in relation to Ms Palmer, and it fails for the same reason that it failed in respect of Ms Palmer, and for the additional reason that there was no evidence that the failure to provide details of the allegation was a cause of Ms Harris' psychiatric condition. Ms Harris however was in a different position from the other plaintiffs, in that they had initially been told in a very general way of the fact that allegations had been made against them, whereas initially, although Ms Harris heard rumours of complaints about her, these were denied by Ms Steele-Wareham and she was not actually told of the complaints until April 2009.
[162] I have however already discussed this matter, and in the circumstances for the reasons I have already given, I am not persuaded that this resulted in any breach of a duty to take reasonable care to avoid causing psychiatric injury to Ms Harris. It was alleged that the other plaintiffs suffered psychiatric injury in part because they had been told that complaints had been made against them but were not told the details of the complaints. It does not appear that Ms Harris would have been in a better position if she had been told the truth initially, bearing in mind that if she had been she would have not have been provided with any more details of the allegations made against her than the other plaintiffs received of the allegations made against them.
[163] In these circumstances it has not been shown that the defendant was negligent towards the plaintiff Ms Harris in any of the respects relied on in the statement of claim.
[164] What I said about paragraph 4 applies here too. With regard to paragraph 5, again many of the paragraphs were admitted. For the reasons given earlier, I accept that Ms Simpson told Ms Hayes what Ms Hayes claimed to have been told, and accordingly paragraph (b) was made out. Paragraph (d) was not made out; Ms Hayes' evidence was that before the interview she was told by the then manager Ms Chaplan that the interview was to occur and that it was in relation to a complaint by Ms Johnson of bullying and harassment: p 38. I accept paragraph (e) was proved. Paragraph (g) was not made out; the plaintiff's evidence was that she was concerned that there were going to be more complaints of Ms Johnson: p 43.
[165] There was evidence from Ms Hayes that she had been warned by Ms Wild before Christmas 2008 that Ms Johnson was out to get her, so paragraph (j) was proved: p 44, 45. Ms Wild gave evidence that she reported this to Mr Costello: p 7-15;[139] I accept this, and find paragraph (k) proved. Paragraph (l) was in this context not contentious.[140] Paragraph (q) was not made out; the plaintiff was informed that allegations had been made in January 2009, she said on 5 January: p 43. She was informed of the general nature of the allegations, though not the detail of them. Paragraph (u) was not made out; on the evidence the misconduct prevention unit analysed the complaints and recommended that they be referred to the CMC, which occurred.
[166] Paragraphs (y) and (z) were proved; I accept that Ms Hayes was told she was being stood aside after that decision had been communicated to the union, and that she was not consulted before the decision was taken and communicated; there was a "discussion" after the decision was taken when it was communicated to her, but that I think is not the sense in which paragraph (z) was used in the pleading. Ms Hayes was not informed of the picket; on her evidence she was not at work at the time when this was occurring, but strictly speaking paragraph (bb) was made out. For the reasons given earlier, paragraph (cc), dealing with the protest on 19 January 2009, was proved. For the reasons given earlier, paragraph (dd) was not proved.[141]
[167] With regard to paragraph (ff), the plaintiff's evidence was that the day after she was told she was being moved to a different position and something else had occurred she went to her doctor again and went on workers' compensation: p 53, p 54. There was evidence that the plaintiff had contacted the employees' assistance programme earlier in January, because on 8 January she told a doctor that she had an appointment with a counsellor at 2 p.m. that day: Exhibit 5, document B3, p 2. She also spoke about counselling by EAS when she saw the doctor on 19 January: ibid p 3. She also referred to it when she saw the doctor on 27 January (ibid p 4), saying that she found the counselling helpful, though she told me that she only went to the EAS once because she found the counsellor not very helpful: p 28. There was also a reference to EAS counselling on 3 March, and to a Clinton Davies who was apparently to provide face-to-face counselling, but it is not clear that this was through EAS: ibid p 7. Mr Davies was seen in March: ibid p 8. The plaintiff was on WorkCover some time after she left work in January. Overall I am satisfied paragraph (ff) is made out. It follows that paragraphs 5(a)-(c), (e), (f), (h)-(p), (r)-(t), (v)-(cc), (ee) and (ff) were admitted or proved.
[168] For the reasons given above, I do not accept that the defendant is vicariously liable for the acts or omissions of Ms Johnson or the RCOs.[142] Otherwise it does not appear that vicarious liability is contentious. The next issue is as to the injury, and questions of causation: statement of claim para 7, 8.
[169] There was no dispute at the trial that the plaintiff had suffered a psychiatric injury. The plaintiff was seen by Dr Bird, a psychiatrist, on 4 September 2009 for the purposes of a report to WorkCover.[143] Dr Bird diagnosed a major depressive disorder and panic attacks with agoraphobia, being a consequence of the accusations made in January 2009. She was also concerned about physical harm to herself and her family. Dr Bird noted vulnerability to a psychiatric illness due to the history of the plaintiff. At that stage he thought that the plaintiff would be unable to return to any form of work within the next three months, though in time he thought a full recovery was more likely than not. Her condition was not stable and he recommended further treatment. He expressed the view that it was likely that she would experience "considerable impairment as a consequence of the injury if she returns to her previous or a related position at Disability Services". On 7 October 2009 Dr Bird expressed optimism about the plaintiff working away from DSQ: ibid (iii).
[170] On 3 September 2010 the plaintiff was seen by Dr Chung, a psychiatrist, for the purposes of a report to WorkCover: Exhibit 5, document B9. The history was not in all respects accurate. It was said that the plaintiff had not been able to return to work following contact with Ms Simpson: p 3; this was not correct. There was also a reference to the plaintiff's having appealed the outcome of the investigation, which was not correct. Dr Chung diagnosed adjustment disorder with depressive anxiety symptoms, and a major depressive disorder which had resolved. No personality disorder was identified. He thought her prognosis relatively good, her current symptoms being related to her sense of uncertainty regarding work and future employment prospects.
[171] The plaintiff was seen by Dr Byth on 14 June 2011 for the purposes of a report: Exhibit 5, document B10. At that stage Dr Byth diagnosed an adjustment disorder with anxiety and depressed mood. Dr Byth thought that the condition had caused marked subjective distress, and to have been more severe than was usually seen under such circumstances. Her condition had partly improved with the treatment so far, and that there was the prospect of further improvement over the next two years, but he doubted that she would obtain a full remission with treatment, being left with chronic mild to moderate anxiety and depression. He expressed the opinion (para 13.2) that the condition was caused by her difficulty coping with allegations of harassment and bullying, which were slow to be investigated and resolved. She also complained of being verbally abused by one of the team leaders at work, and felt her own manager had presumed she was guilty before the investigations were completed. He did not think she would ever be able to work again in her previous or similar position, managing large numbers of staff.
[172] In August 2011 Dr Byth provided a further report, commenting on a report of a psychiatrist, Dr Gunn, which was not in evidence; he expressed the opinion that the plaintiff's global assessment of functioning was properly assessed at 60/100, reflecting moderate symptoms and moderate impairment. Nothing in particular was said in this report about causation. The plaintiff was interviewed by telephone by Dr Byth on 26 February 2014 for the purposes of an updated report: Exhibit 5, document B12. He considered that the diagnosis remained one of a moderately severe adjustment disorder with depressed mood, which had not improved at all since the assessment in 2011, and may have deteriorated. He thought she needed a further two to three years of specialist psychiatric treatment including medication and counselling. She appeared to be then unable to work at all; her outlook was probably poor given that she had had little improvement with treatment so far despite being away from work. If she responded well to treatment she might be able to undertake some light and simple part-time work, provided it involved little complexity or responsibility, but would probably still require extensive sick leave per year.
[173] In oral evidence Dr Byth expressed the opinion that having the employer not seem to be supportive towards her over the complaints that had been brought against her was extremely distressing to her: p 5-20. He also expressed the opinion that being told, as she was by Ms Simpson, that the complaint had been upheld was going to be stressful to her, and that the delay in obtaining a final outcome after the large number of complaints were made would have heightened anxiety and depression, as would delay knowing the full extent of the complaints against her: p 5-21. Being told that she was not to talk to others about the matter would have made her feel isolated and made her feel that she had done something wrong, and the same would apply if she had the impression that there was a presumption that she was guilty. It follows that there was evidence from Dr Byth that some of the matters referred to in paragraph 5, namely the making of the complaints against her (para (a), (p)[144]), being told by Ms Simpson that the compliant was found to be substantiated (para (b)), and a number of other matters not referred to specifically in paragraph 5.
[174] In Exhibit 42 Dr Byth expressed the opinion that the exposure of the plaintiffs to the picketing (para 5(cc)) was a contributing factor to the development of her psychiatric injury, even though Ms Hayes was not in the office at the time. He also expressed the opinion that having the matter referred to in the media would have contributed to their anxious and depressed state: p 10-18. He also spoke about the absence of support from management, particularly at the time of the picketing, that the allegations and investigations were inherently stressful to all parties, that there was a lack of support from Ms Steele-Wareham and a feeling that management thought they were guilty and so they were stood down. The psychological injury was due to an accumulation of factors. He did not see Ms Hayes returning to any management role or that type of employment; she was capable of some employment but at a very basic level, and would still require anti-depressant medication. There were likely to be problems even with very basic work, and she remained very fragile.
[175] Under crossexamination Dr Byth agreed that the concern expressed by Ms Hayes about being assumed to be guilty was in the context of the investigation in 2008, and that no such complaint was made specifically in relation to the 2009 events; at least, it was not included in his notes: p 10-9. However, later in the cross-examination he said he had the impression from all of the plaintiffs that they did not believe that they were being supported by their management during 2009: p 10-17. He also said that all of the plaintiffs had complained of the comment attributed to Ms SteeleWareham that so many RCOs could not be wrong: p 10-21. He acknowledged however that this had not been recorded in his notes in respect of all plaintiffs.
[176] Again I accept the evidence of Dr Byth and accept that the matters referred to him caused Ms Hayes' psychiatric condition. I also accept his evidence to the effect that it was the combined effect of all of those matters which resulted in her developing the psychiatric condition that she came to develop, the subject of the claim. The reasoning is the same as with the other plaintiffs.
[177] The statement of claim then alleged that the events in paragraph 5 were occasioned by the negligence and/or breach of duty and/or breach of contract by the defendant, its servants or agents, as particularised in paragraphs 9 to 16. The matters relied on as constituting negligence are the matters identified in those paragraphs.
[178] Paragraph 9 alleged an omission to provide support or adequate support in circumstances where various things had happened. The first of these, paragraph (a), referred to the plaintiff's seeing the flyer in the MSC referring to the no confidence vote by members of the AWU: document 28. This did refer to Ms Hayes but she did not see it in the MSC because she was not at work at that time. She was however aware in January 2009 that a number of RCOs had made complaints against her, and that Ms Steele-Wareham had met members of the AWU on 16 January 2009, so (b) and (c) were proved. Ms Hayes was told that Ms Steele-Wareham had said words to the effect that 60 RCOs could not be wrong: p 2-8, 9. Ms Steele-Wareham did tell Ms Hayes that complaints had been made against her, and the general nature of the complaints, but there was no evidence that she was told that she was presumed innocent by the defendant, and to this extent paragraph 9(e) is made out.
[179] I have already said something, in relation to the claim by Ms Palmer, about the absence of detailed information about the complaint; that applies here as well. I also analysed in that matter the question of whether an obligation to provide support arose because complaints had been made and were being investigated, and concluded that the effect of decisions in New South Wales, that no duty of care arose in relation to circumstances where potential wrongdoing was being investigated, extended to prevent a duty of care arising to provide support to someone in such a situation. Furthermore, I cannot see why the fact that Ms Steele-Wareham met members of the AWU gave rise to any duty to provide support to the plaintiff; that does not strike me as something which would give rise to any foreseeable risk of psychiatric injury. In relation to the comment of which Ms Hayes heard, that there must be substance to the complaints of the RCOs, for the reasons set out earlier I do not consider that this amounted to any breach of duty of care in relation to psychiatric injury.
[180] I should say on a precautionary basis that if there was a duty to provide support in the context of the investigation, and Ms Hayes' being moved out of her position, I consider there was a breach of that duty. The analysis is essentially the same as in the case of Ms Palmer; I do not consider that the provision of the EAS was adequate for a situation such as this, and nothing else was done, in particular, the support directed by Ms Kill was not provided, as discussed earlier. On the evidence of Dr Byth, support provided at this point would probably have made a difference. I need not repeat my comments in relation to the matters particularised in paragraph 3 of the response to the request for further and better particulars of the statement of claim, which are similar to those in relation to Ms Palmer.
[181] Paragraph 10 alleged that the defendant caused, allowed and/or permitted the plaintiff's colleagues to engage in behaviour that was inappropriate and unreasonable in the circumstances. This was particularised[145] by identifying the relevant "colleagues" as those mentioned in paragraphs 5(d), (e), (l), (q), (t), (u), (v), (w), (x), (y), (z), (bb), (cc) and (dd) of the statement of claim. This was different from the pleading in Palmer, and some of the people thus identified would not readily be described as "colleagues" of the plaintiff. It is unnecessary to refer to paragraphs 5(d), (q), (u) and (dd) as those allegations were not made out. Paragraph 5(e) referred to the plaintiff's reaction to the complaint by Ms Johnson in July 2008; insofar as this is meaningful it identified Ms Johnson as the relevant colleague, and, however inappropriate and unreasonable her behaviour may have been, the defendant is not responsible for the fact that Ms Johnson made that complaint, merely because the complaint was received and investigated.
[182] Paragraph 5(l) referred to Mr Costello's failure to investigate a comment made to Ms Wild that Ms Johnson had said (to someone else) that she was out to get the plaintiff. The relevant person identified here was Mr Costello, and the conduct was identified, but I am not persuaded that, accepting that he was told of the comment, it was inappropriate and unreasonable in the circumstances for him to fail to investigate or to counsel Ms Johnson.[146] Mr Costello had had problems with Ms Johnson in the past (Exhibit 40) and I think it probable that had he sought to intervene it would have been quite unlikely to have brought Ms Johnson into line; if anything it might have stirred her up more. There is certainly no reason to believe that, had he acted in some way against Ms Johnson, what followed would have been any more favourable to the plaintiff in terms of the stressors associated with her psychiatric injury. I am not persuaded there was any negligence on the part of Mr Costello in relation to this.
[183] Paragraph 5(t) referred to the decision that if the complaints referred to the CMC were referred back to the Department there would be an external investigation, which was taken by the Deputy Director-General and endorsed by Ms Kill; I do not consider that there was anything inappropriate or unreasonable in that decision, in the circumstances.[147] Paragraphs 5(v) and (w) concern the fact that Ms Steele-Wareham participated in a hearing of the Industrial Relations Commission where Ms Johnson was allowed to participate and the defendant did not apply for the plaintiff to participate in that hearing. As allegations of negligence, these are entirely without substance; who participated in the hearing of the Industrial Relations Commission was a matter for the Commission, not something under the control of Ms SteeleWareham, and there was certainly nothing unreasonable or inappropriate in her being there. There was no evidence from the plaintiff that she wanted to participate in the hearing of the Industrial Relations Commission, and there is not the slightest reason to suspect that the Commission would have had any interest in hearing from her had she sought to do so. She was not present at the hearing and in a position to be heard. There is also no evidence to support the proposition that if she had been heard it would have made any difference either to the course of events or to the development of her psychiatric injury.
[184] Paragraph 5(x) is concerned with the communication of the decision to redeploy the plaintiff, an action by Ms Kill. Assuming that this is a reference to her taking the decision to redeploy the plaintiff, I have already discussed the circumstances under which that decision was taken, and I am not persuaded that it was in any way unreasonable or inappropriate; in the light of the prevailing industrial relations situation, I consider it quite reasonable to have moved the plaintiff and other crucial officers out of their management positions until the complaints had been investigated properly and to have informed the union of this. As an allegation of negligence, this fails. I also consider that it was not unreasonable or inappropriate for the plaintiff not to have been consulted prior to that decision being taken or to be involved in discussions prior to its being taken: paragraphs 5(y), (z).
[185] Paragraphs 5(bb) and (cc) referred to the protest on 19 January; plainly the Department did not cause that protest, nor did it in any meaningful sense allow or permit it to occur. I am not persuaded that there was any unreasonable or inappropriate behaviour on the part of Ms Steele-Wareham or anyone else from the defendant in not reacting more vigorously to that protest, and there is no reason to think that any different reaction would have improved the situation for someone like the plaintiff who was not there at the time, or have had any impact on her psychiatric state. Overall, there is no substance to the claim in paragraph 10.
[186] Paragraph 11 alleged that there was a failure to comply with the Risk Management Code of Practice, about which I have already said something. The same applies to paragraph 12 alleging a failure to comply with the Prevention of Workplace Harassment Code of Practice, and paragraph 13, alleging a failure to comply with DSQ's policies and procedures regarding zero tolerance for workplace bullying and harassment.
[187] Paragraph 14 alleged that the defendant was negligent in failing to implement strategies to protect the plaintiff from harassment and public vilification at her place of employment by staff members. This was particularised as, in the case of harassment, what was alleged in paragraph 5 of the statement of claim.[148] This is meaningless. Apart from anything else, there is nothing alleged in paragraph 5 of the statement of claim which could be characterised as harassment of the plaintiff at her place of employment by a staff member. As to public vilification, this was particularised as relating to the picket in January 2009. Since the plaintiff was not at work at this time, it is difficult to see how the picketing amounted to an act of public vilification of the plaintiff, but in any event, the defendant was plainly not responsible for the fact that the picket occurred, and as I have already indicated I am not persuaded that there was any negligence in the Department's response to the picketing. There is no substance to this allegation.
[188] Paragraph 15 alleged there was negligence in failing to provide information about the allegations in a timely manner. It is true that the details of the allegations were not communicated to the plaintiff in a timely manner; insofar as this related to the independent investigation, that was a matter under the control of the independent investigators, and I am not persuaded that there was any negligence in relation to the delay involved there. There can be no liability of the defendant associated with the process of investigating complaints of wrongdoing against the plaintiff, which is within the Public Policy exclusion referred to in the New South Wales Court of Appeal cases. There can be no negligence on this basis. Paragraph 16 referred again to the picketing of the Maryborough office; for reasons already given, there was no negligence in relation to that, and this plaintiff was not in fact subject to threats, harassment or intimidation from the picketing, because she was not there at the time.
[189] In these circumstances it has not been shown that the defendant was negligent towards the plaintiff Ms Hayes in any respect relied on in the statement of claim.
[190] Dealing with the matters contentious on the pleadings, I have said something about the formulation of the defendant's duty of care as an employer. In relation to paragraph 5, 18 of these paragraphs of particulars were admitted: defence paragraph 4(a). For reasons given elsewhere, I accept that Ms Simpson told Ms Hayes that Ms Johnson's complaint had been substantiated and that Ms Hayes told Ms Greenhalgh what had happened: p 2-57. Paragraphs (d), (e) and (f) were made out on the evidence of Ms Greenhalgh. I accept Ms Greenhalgh's evidence that she told Mr Costello about Ms Johnson's comment, although Mr Costello did not recall this: p 40. It was admitted that no investigation was made into the meaning of that complaint, so paragraph (g) was made out. I also accept that paragraph (h) was made out on the evidence of Ms Greenhalgh.
[191] As to paragraph (o), Ms Greenhalgh gave evidence of a meeting in January 2009 when she was told of allegations that were made, in a general sense; the nature of the allegations was disclosed but not the detail of it. Accordingly paragraph (o) was not made out. The evidence was that the defendant did analyse the complaints prior to referring them to the CMC, at least in a preliminary way, so paragraph (s) was not made out. I accept that paragraph (v) has been proved, in substance on the evidence of Ms Kill. I accept also that the plaintiff was not consulted about this communication and did not consent to it (w). I accept that Ms Greenhalgh was not informed that she would be a target of the picket on 19 January or that it would occur. Paragraph (z) was made out, for the reasons given in relation to Ms Palmer. Paragraph (aa) was not made out, for the reasons given in relation to Ms Palmer. I am also persuaded that paragraph (ff) was made out on the evidence of Ms Greenhalgh. Overall therefore paragraphs 5(a)-(n), (p)-(r), (t)-(z) and (bb)-(ff) were admitted or proved.
[192] For reasons given elsewhere, I am not persuaded that the defendant was vicariously liable for the acts or omissions of Ms Johnson and the RCOs referred to in this pleading.[149] I do not think there was any other particular dispute in relation to vicarious liability.
[193] Ms Greenhalgh was consulting a general practitioner, and receiving counselling, by August 2008: Exhibit 6, document B4, p 6. Ms Greenhalgh was seen on 7 December 2009 by a psychiatrist, Dr Grey, for the purposes of a report to WorkCover: Exhibit 6, document B8. Dr Grey diagnosed a major depressive episode within the context of difficult interpersonal stressors in the workplace in 2008 and 2009. Her condition was said to have been of moderate severity but had improved to some extent, and was in partial resolution; she required ongoing treatment. The long-term prognosis remained uncertain, though generally such episodes resolved.
[194] There was a further report provided on 24 May 2010: Exhibit 6, document B10. Dr Grey expressed the view that Ms Greenhalgh's condition had deteriorated since he saw her on the previous occasion, which was attributed to the fact there was a complaint of racial discrimination brought against her in January 2010. Dr Grey thought that she was clearly in need of ongoing, aggressive treatment under the care of a psychiatrist, and it would take some nine to 12 months before her condition stabilised. Her prognosis was difficult to quantify at that time. Her general practitioner referred her to a psychiatrist, Dr Taylor, who reported in a letter on 7 July 2010 that she had been suffering from symptoms of anxiety and depression to some extent since mid2008: Exhibit 6, document B11. He said that she was then keen to return to work, and recommended a graded return to work; there is little else in the report of relevance.
[195] There was a further report from Dr Grey dated 4 March 2011: Exhibit 6, document B13. At that time she was undertaking a graded return to work for about 14 hours per week. She was still seeing a psychologist fortnightly which she found helpful, and had been seeing Dr Taylor largely for the purpose of managing medication. Dr Grey expressed the view that the plaintiff had suffered a severe major depressive episode from 2008 but it appeared that she had begun to enjoy some recovery. She had not yet reached maximum medical improvement. He thought however that her prognosis was reasonably good. Dr Taylor provided a report to WorkCover dated 2 June 2011: Exhibit 6, document B18. He diagnosed Ms Greenhalgh as suffering from major depression in partial remission, concurring with the opinion of Dr Grey. He did not see her returning to fulltime work for the following year, but he viewed her general prognosis positively, though there was certainly a risk of relapse. She needed to continue medication in the foreseeable future.
[196] Ms Greenhalgh was seen by Dr Byth on 25 August 2011 for the purposes of a report to her solicitors: Exhibit 6, document B19. He diagnosed major depression with prominent associated anxiety and agitation. He thought her symptoms were of moderate to marked severity, as indicated by her subjective distress, hopelessness, panic attacks and social avoidance. There was some lack of response to medication, and her case was described as complex, and requiring specialist psychiatric treatment over at least the next three years. He expected her not to obtain a full remission with treatment, and to be left with chronic moderate to marked major depression. He expressed the view that this condition was caused by her difficulty coping with stressful events at her work, including her complaint of harassment by a team leader, and her being distressed by unfounded allegations by other staff which required an extensive investigation: para 13.2. He thought that she would be likely to be limited to part-time work in the future and to require continuing treatment indefinitely, and some additional time off work each year to cope with exacerbations of her depression. He assessed permanent impairment under the AMA guidelines at 50%.
[197] There was a further report provided on 26 February 2014, which however does not say anything helpful about causation: Exhibit 6, document B20. It noted that she was still experiencing periods of anxiety and depression, particularly at work if she was reminded of what happened in the past, though she finds working in a different building helpful, and generally is able to avoid the people who complained about her. Dr Byth thought there was marginal improvement since the previous assessment, but her symptoms still involve moderate impairment. She required further specialist treatment. He expressed disagreement with the assessment of impairment in a report by Dr Varghese, which is not in evidence.
[198] In the note of the telephone conference with counsel on 8 April 2014 (Exhibit 42) the comments about the effect of the picketing, which occurred while Ms Greenhalgh was at the office, and the lack of support from management, particularly the impression that they were regarded by senior management as guilty, applied to her. Dr Byth thought that Ms Greenhalgh although back at work was still anxious and depressed but tried to hide it and keep going. He thought she would probably not be able to sustain that in the future. In oral evidence Dr Byth said that the same propositions that applied with Ms Hayes would apply to Ms Greenhalgh, except of course that she was not the target of the initial complaint and she was not the one who was told that that complaint had been upheld: p 5-22. She was quite alarmed by the comment that Ms Johnson made directly to her.
[199] Under cross-examination he said that there were a number of stages to the development of her condition, with the building up of the anxiety and depression: p 10-9. He conceded that he had nothing in his notes about being told by Ms Greenhalgh of any concern associated with any comment by Ms Steele-Wareham: p 10-8. Later however he said that he had the impression from all of the plaintiffs that they were unsupported by their own management: p 10-17. He said at p 10-21 that he could recall Ms Greenhalgh saying something to the effect that her manager had asked, how could 60 of the support workers be wrong, or something like that, evidently a reference to what she says she was told by Ms Steele-Wareham. Indeed he said that he thought this was one of the major complaints that all of the plaintiffs had. Dr Byth agreed that Ms Greenhalgh had found the separate complaint of racial vilification in early 2010 also to be very stressful, and it was something that had exacerbated her condition at that time: p 10-22.
[200] The issue of causation depends on the evidence of Dr Byth. I accept his evidence, and accept that the matters referred to by him caused Ms Greenhalgh's psychiatric condition. The effect of his evidence was that there were a number of matters referred to in paragraph 5 of the statement of claim which together caused the injury: the statement by Ms Johnson at the meeting in September 2008 (f), the allegations made against her by Ms Johnson and other people (n), the fact that the plaintiff was not initially informed of the details of the allegations (o), the effect of the picket in January 2009 (z), and some matters not referred to in paragraph 5.
[201] I also accept that the effect of Dr Byth's evidence is that it was the combined effect of all of those matters which resulted in her developing the psychiatric condition that she came to develop, the subject of the claim. As with the other plaintiffs, each of the matters was a cause, but there is the complication in her case that there was another factor which began to operate in early 2010 which was separate from the factors the subject of this action,[150] and the defendant could not be liable in this proceeding in respect of any aggravation of the plaintiff's psychiatric condition caused in 2010 by that other complaint.
[202] The statement of claim then alleged that the events in paragraph 5 were occasioned by the negligence and or breach of duty and or breach of contract by the defendant, its servants or agent as particularised in paragraphs 9 to 16. Paragraph 9 alleged omissions to provide support or adequate support in certain specified circumstances. I have already referred to the allegations in paragraphs (a) to (d); paragraph (e) was not made out, as on the evidence Ms Steele-Wareham did tell Ms Greenhalgh that complaints had been made against her, and the general nature of those complaints, though Ms Greenhalgh was not informed of the details of the complaints, or that she was presumed innocent by the defendant. As to whether these circumstances meant that it was negligent not to provide support or adequate support, the relevant question is whether in these circumstances there was some obligation to provide some more specific form of support, other than the EAS, which Ms Greenhalgh knew about (p 3-30) and apparently accessed in 2008, and perhaps in 2009.
[203] Insofar as a complaint had been made against her and others, for the reasons given previously I do not consider that that gave rise to any duty to provide specific support. I do not consider that the mere fact that the plaintiff was mentioned in an AWU flyer setting out the result of a no confidence motion at the union meeting was a factor which gave rise to a foreseeable risk of psychiatric injury, as distinct from less severe emotional reactions which are not compensable. There was no duty therefore to react in response to this. The same applies to the mere fact that Ms SteeleWareham had met members of the AWU on 16 January 2009. The fact that that meeting was organised, for a legitimate purpose as discussed earlier, did not in my opinion give rise to any foreseeable risk of psychiatric injury to the plaintiff, so there was no duty to do anything in response to protect the plaintiff from psychiatric injury.
[204] In relation to the specific words which I find Ms SteeleWareham did say to Ms Greenhalgh, the position is analogous to her having said such words to Ms Palmer, and for the reasons given in relation to Ms Palmer I am not persuaded that making this statement gave rise to a foreseeable risk of psychiatric injury. To the extent that there had been incidents in Ms Greenhalgh's past which might have produced some vulnerability to psychiatric injury, there was no evidence that Ms Steele-Wareham, or any other relevant person on behalf of the defendant, was aware of those matters, or aware of any other factors which gave rise to any particular vulnerability to psychiatric injury on her part. In my opinion the circumstances relied on did not give rise to any particular duty to provide some specific support to the plaintiff.
[205] I should say on a precautionary basis that if there was a duty to provide support in the context of the investigation, and Ms Greenhalgh's being moved into her new job early, I consider there was a breach of that duty. The analysis is essentially the same as in the case of Ms Palmer. This includes the comments in relation to the matters particularised in paragraph 3 of the response to the request for further and better particulars of the statement of claim; the only additional comment is that the plaintiff was not seconded to the position of resource officer, having already been appointed to that position; all that happened was that the delay in her taking up that position was brought to an end.
[206] As to paragraph 10, the particulars provided identified the "colleagues" referred to as Ms Johnson, Mr Costello, Ms Steele-Wareham, Ms Kill and the people who made the complaints, presumably the RCOs.[151] At least this is clear. The behaviour relied as inappropriate and unreasonable was that referred to in paragraphs 5(g), (o), (p), (q), (r), (s), (t), (u), (v), (w), (y), (z) and (aa) of the statement of claim. Paragraph 5(g) was the allegation that Mr Costello took no steps to investigate the meaning of Ms Johnson's comment to the plaintiff in September 2008. There was no evidence that a reasonably competent manager in his position would have investigated that matter, and it is certainly not obvious to me that a failure to investigate the comment was unreasonable. The comment, however pregnant with menace it may have been, was on its face harmless enough, and it strikes me as obvious that any sort of investigation would have been a waste of time.
[207] Paragraph 5(o) alleged that the plaintiff was not told that a complaint had been made against her or of the nature of the allegations; on the evidence she was told in January 2009, and in the general way of the allegations that had been made, though not the detail of the allegations. I have dealt elsewhere with why this was so, and for those reasons it was not inappropriate and unreasonable to fail to tell her the details of the allegations at that time. It is not entirely clear how the matter addressed in paragraph 5(p) could be said to be inappropriate or unreasonable; I am certainly not prepared to find that it was, nor would I find the matters in paragraphs 5(q) and (r) were inappropriate or unreasonable. Paragraph (s) was not made out. Paragraphs (t) and (u) relate to the hearing in the Industrial Relations Commission, and for reasons I have dealt with elsewhere it was not inappropriate and unreasonable for the defendant to have acted in the way alleged in those paragraphs.
[208] Paragraphs (v) and (w) relate to the communication to the AWU of the change in position of the plaintiff; again for reasons referred to elsewhere in relation to the analogous communication in the case of Ms Palmer and Ms Hayes, I am not persuaded that the behaviour of Ms Kill or indeed anyone else was unreasonable or inappropriate in this respect. Paragraphs (y) and (z) relate to the picket on 19 January at the MSC, and again for reasons discussed elsewhere I am not persuaded that there was any unreasonable or inappropriate conduct on the part of the defendant in relation to its response to that picket. Paragraph (aa) was not made out. It follows that the allegation in paragraph 10 of the amended statement of claim was not made out.
[209] Paragraph 11 alleged a failure to comply with the Risk Management Code of Practice, paragraph 12 a failure to comply with the prevention of Workplace Harassment Code of Practice, and paragraph 13 a failure to comply with ESQ policies and procedures, in particular a policy regarding zero tolerance for workplace bullying and harassment. I have already said something elsewhere about such allegations as they relate to other plaintiffs; for the same reasons, in the case of Ms Greenhalgh I am not persuaded that the plaintiff has shown that there was any negligence in any of these respects.
[210] Paragraph 14 alleged there was a failure to implement strategies to protect the plaintiff from harassment and public vilification at her place of employment by staff members. It appears to me from the particulars of this paragraph[152] that what is relied on here was harassment and public vilification in the actions of the picketers, and statements by Ms SteeleWareham to the plaintiff on several occasions to "suck it up". As to the former, for reasons already given I am not persuaded that there was any negligence in the Department's response to the picketing, and I am certainly not persuaded that there is any evidence that if there had been a different response it would probably have averted or mitigated any of the psychiatric injuries suffered by any of the plaintiffs. The defendant is of course not responsible for the fact that a picket was held, and that was the real cause of any stress and distress suffered by Ms Greenhalgh.
[211] As to the statement from Ms Steele-Wareham that the plaintiff should "suck it up", which on the plaintiff's evidence happened on two occasions (p 5-83) I accept her evidence and find that that did occur, notwithstanding Ms SteeleWareham's denial (p 9-17), because in general I prefer the evidence of the plaintiff to the evidence of Ms Steele-Wareham. I would regard such a statement as unreasonable and inappropriate, but I am not persuaded that it was reasonably foreseeable that Ms Greenhalgh would suffer psychiatric injuries as a result of her making that statement. The position I think is essentially analogous to the statements by Ms Steele-Wareham to the effect that so many RCOs could not be wrong. I also do not consider that making such a statement on two occasions amounted to harassment of Ms Greenhalgh by Ms Steele-Wareham. This was nowhere near as serious as the sort of conduct considered in Naidu or Wolters (supra), and indeed not even as serious as the conduct considered in Keegan (supra).
[212] Whether Ms Johnson's complaints against Ms Greenhalgh, and her orchestration of other supporting complaints, amounted to harassment by Ms Johnson, it does not seem to me that there was any realistic basis upon which the defendant could have prevented complaints being made in this way. It would be reasonable for the defendant to have a mechanism by which complaints could be made by staff against more senior people in the management structure, and for such complaints to be investigated, and the fact that at the end of the day the complaints were shown to be groundless does not mean that it was unreasonable to accept and investigate the complaints in the first place. This could not amount to a failure to protect the plaintiff from harassment.
[213] Further instances of harassment were said to be the failure to provide particulars of the complaint, which was plainly not harassment, the decision to conduct an external investigation into the mass of complaints, which was plainly not harassment, and the omission to analyse the complaints, which allegation was not made out. The idea that what happened in relation to the Industrial Relations Commission in some way amounted to harassment of the plaintiff is fanciful. The fact that Ms Kill told the union that Ms Greenhalgh was going to her substantive position was characterised as the sharing of confidential information about Ms Greenhalgh's employment with unauthorised persons; that allegation is also fanciful.
[214] This was a situation where the union had raised an industrial dispute where it was specifically demanding that Ms Greenhalgh, and others, be dismissed from the public service. Inevitably the process of dealing with that dispute would involve some communication to the union of what it was that the defendant was going to do in relation to Ms Greenhalgh's employment, whether it consisted of maintaining her in her existing position, or something else. Further, that she held a position and had been appointed to another could not be regarded as confidential information; I regard the suggestion that this amounted to bullying or harassment of Ms Greenhalgh as also fanciful. Paragraph 14, as an allegation of negligence, is also not made out.
[215] Paragraph 15 alleged a failure to provide information to the plaintiff about allegations against the plaintiff in a timely manner, which I have already dealt with and which did not amount to negligence on the part of the defendant. Paragraph 16 referred again to the picketing and alleged there was negligence in a failure to control or attempt to control picketers; for reasons I have already given, there was in my opinion no negligence in this way, and no reason to think that if anything had been done it would have either made the situation better, or averted the psychiatric injury suffered by Ms Greenhalgh. In these circumstances it has not been shown that the defendant was negligent towards the plaintiff Ms Greenhalgh in any of the respects relied on in the statement of claim.
[216] There is no doubt that each of the plaintiffs in these matters has suffered a severe psychiatric injury as a result of the events that occurred in 2009 and 2010 in connection with their employment at the MSC. On the evidence that I have heard, they were subjected to considerable stress and anxiety in connection with that employment. Fundamentally, that arose out of the actions of one particular employee of the department, Ms Johnson. It is apparent from Exhibit 40 that Mr Costello, the manager between July 2008 and February 2009, had difficulty in managing Ms Johnson effectively; essentially she was resistant to his attempts to modify the difficult aspects of her behaviour towards other staff members. Perhaps in an ideal world she would have been identified as an undesirable employee and dismissed, but we do not live in an ideal world. The major stressor confronting the plaintiffs was simply the hostility generated by Ms Johnson, personally and through the others whose discontent she mobilised. In my opinion however the defendant is not vicariously liable for her actions in this respect, or the actions of those she recruited to her cause.
[217] Confronted with what became a difficult industrial situation, the Department adopted a policy essentially of seeking to appease the RCOs, which would inevitably be seen by those against whom they were complaining as taking sides against them. The Department had reasons for approaching the matter in that way, and, whether or not other courses were realistically open to the Department, clearly the decision to approach the matter in that way cannot be characterised as negligent. The same applies to the decisions to move Ms Palmer and Ms Hayes out of their positions, and to move Ms Greenhalgh on to a new position to which she would have been moving shortly in any event. This could and should have been handled with greater sensitivity by the Department, in particular by Ms Steele-Wareham, though I suspect that it would have been a significant psychological blow to those plaintiffs in any event, because however it was handled it would have been characterised by them as letting Ms Johnson and her allies win. It may be significant that Ms Harris, who was left in her position, still developed much the same psychiatric reaction, a factor which supports the view that it was the campaign of making complaints against the plaintiffs, and others, which was the crucial stressor which led to their psychiatric injury. This of course is not a matter for which the defendant is responsible.
[218] Ms Steele-Wareham did seem to manifest a lack of sympathy for the plaintiffs, and perhaps also for the others against whom complaints were made, and it is easy to see that there were things that she could and should have done better. It may be that she was genuinely sympathetic with the position of the RCOs, or she may have felt that it was important for the process of rebuilding an employment relationship with them for her to be seen as someone who was sympathetic to their position, and therefore she had to be careful to avoid manifesting any sympathy for those whom they regarded as the enemy; the effect on the plaintiffs would have been much the same in either case. It does not however follow that there was a negligent failure to take reasonable care to avoid psychiatric injury in any of her actions.
[219] Although I have a good deal of sympathy for the plaintiffs, and regret the terrible psychiatric problems that have engulfed them, I am not persuaded that on the evidence led before me any of the plaintiffs has proved that there was negligence on the part of the defendant in any of the respects alleged. It follows that in each matter the plaintiff's claim must be dismissed. I shall however on a precautionary basis assess damages.
[220] Ms Palmer was born on 11 March 1960, and is now approaching 55. She was off work from 17 March 2009 to 17 April 2009, and from 20 April 2009 to 17 May 2009. She then returned to work but was often not doing very much. She went off work again in December 2009 but there were further attempts to return to work before she finally ceased work in April 2010: p 3-58. She became unhappy about continuing to live in an area in the general vicinity of Maryborough, and she moved first to Emerald and then to another Queensland town, where her husband was able to obtain work: p 4-29. She did not apply for work in either of those places, and now feels terrified of dealing with people. She has now a very limited social life, and the relationship with her husband and children has suffered. She is too terrified to go shopping, and even in Brisbane she is afraid of running into someone she knows: p 4-30. She is continuing her medication and still sees a psychiatrist every six months: p 4-31.
[221] Her husband confirmed that there had been a complete change to her personality, she is crying a lot and has difficulty making decisions, and does not want to go out: p 540, 41. She has problems with her memory, and complains that she is useless: p 5-46. He said that even when they moved to Emerald she was just scared all the time, even when going to a shop, though to some extent she would do that on her own: p 5-44. He said that he had do more in the way of housework, and she gets tired very quickly and sleeps a lot during the day: p 5-45.
[222] Dr Byth regarded her as apparently a psychiatric invalid and thought there was little chance of her improving with further treatment. She would have difficulty even in part-time simple work with little responsibility: Exhibit 3, document 17. Dr Byth, whose evidence I accept, assessed the impairment in her functional capacity at 50/100: Exhibit 3, document 16. Overall, the plaintiff suffered and is suffering from a severe and quite disabling psychiatric injury of indefinite duration, which prevents her from doing any work and from having anything like a normal life, and is unlikely to improve much with time.
[223] It was submitted for the defendant that the plaintiff should receive little in the way of damages, on the basis that only a small percentage of the plaintiff's problems could be attributed to the defendant, relying on Hole v Hocking [1962] SASR 128. That was a case where the plaintiff after being injured in a motor vehicle accident suffered a brain haemorrhage as a result of a pre-existing condition, which on the evidence was probably precipitated by the accident, but would have been suffered in any event within a matter of months. Damages were assessed on the basis that the condition had been suffered earlier than would otherwise have been the case, together with an allowance for the extent to which the consequences to the plaintiff were more serious than they would have probably have otherwise have been.
[224] That decision is an example of a case where the plaintiff's injuries were overtaken by an independent medical condition. There is however no evidence that Ms Palmer was suffering from some independent psychiatric condition which would have produced anything like the current symptoms in any event in time. The defendant's point was that, in circumstances where there were multiple stressors acting on Ms Palmer, it is likely that she would have suffered psychiatric consequences anyway even if such of the stressors as were attributable to the defendant's negligence (if any) had not been present. In my opinion however on the evidence when a plaintiff suffers a psychiatric injury the particular injury suffered is the product of all of the stressors acting on the plaintiff that are identified by the medical evidence as a cause of that particular condition, so that, unless the stressor or stressors for which the defendant is liable is of no real significance in the development of the condition, such a stressor or stressors is in law a cause of that injury.[153]
[225] That is sufficient to produce prima facie liability for the injuries so caused, though it is open for a defendant to show that, had there been no negligence, other independent factors would probably have caused the same, or a lesser, psychiatric injury in any event. To the extent that this involves the consideration of hypothetical facts, the assessment must be made by reference to the approach in Malec v JEC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638. The onus is on the defendant to show that the plaintiff would have suffered some injury in any event in the absence of negligence, and the extent of that injury, with reasonable clarity, otherwise the prima facie position prevails.[154] No doubt an exercise of this nature is easier to perform in the case of physical injuries, but in principle the same approach applies with psychiatric injury.
[226] In circumstances where I have not found any of the factors which on the evidence contributed to the plaintiff's psychiatric condition was a factor for which the defendant was responsible in negligence, it is somewhat artificial for me to embark on an investigation of the extent to which the plaintiff would have suffered a psychiatric injury in any event in the absence of negligence. My impression however is that the defendant has not shown with any reasonable degree of clarity to what extent the plaintiff would have suffered psychiatric injury in any event in the absence of any particular negligent stressor.
[227] Part of the difficulty in dealing with the plaintiff's condition is that, at least at one stage when there was an attempt to get her back to work, she appears to have adopted a somewhat inflexible attitude about what she would do, as she was determined to go back to her previous rostering position at the MSC. Given the industrial situation then prevailing, this was unrealistic, and indeed it was probably unrealistic for the Department to have Ms Palmer working in any rostering position for the department in Maryborough. One matter which was not explored on the evidence was whether there was some investigation of the possibility of a rostering position being found for her at another centre. She did in time move away from Maryborough anyway, and in principle this strikes me as a possible solution, but this was a matter not touched on in the evidence, and may not have been considered by either Ms Palmer or the Department at the time.
[228] In my opinion it would be artificial for me to attempt an apportionment on the basis of some hypothetical division of stressors into those for which the defendant is liable and those for which the defendant is not liable, in circumstances where on my findings the defendant is not liable for any of them. All I can do is make an assessment on the basis that the defendant is liable for the plaintiff's condition, although if the contrary view as to negligence were taken elsewhere this issue would have to be revisited.
[229] I was not referred to any comparable decisions. In Karanfilov v MSS Security Pty Ltd [2013] QSC 304 McMurdo J made a precautionary assessment of $70,000 for general damages in the case of a security guard who suffered a psychiatric injury which was said to have had devastating consequences for his personal working life: [72]. In that case there was evidence that the plaintiff would not be able to work at all, although one doctor held out some hope of some employment at some time. That plaintiff's symptoms seem to be not unlike those suffered by Ms Palmer, though he was somewhat younger. Reference was made to an award of $50,000 in Wolters (supra) where the injury was said to be less severe.
[230] In Keegan (supra) the plaintiff's general damages were assessed under the Civil Liability Regulation on the basis of an ISV of 37, giving an award of $71,610. If the plaintiff's age was given in the reasons for judgment I have not been able quickly to locate it. Assessments of quantum under the Regulation are notoriously not comparable with assessments at common law. In Hegarty at first instance, [2007] QSC 90, general damages were assessed at $70,000; again the plaintiff was 45 at trial, and he had suffered a debilitating mental illness which rendered him incapable of working. In Cranston v Consolidated Meat Group Pty Ltd [2008] QSC 41 a 43 year old plaintiff with a major depressive disorder received a precautionary assessment of $60,000, though there was a significant history of psychological disorders.
[231] In all the circumstances, I assess damages for pain and suffering and loss of amenities at $60,000, of which I would apportion $25,000 to past loss. The psychiatric injury developed over a period of time, but for ease of calculation I would allow interest for six years at 2%, an amount of $3,000.
[232] With regard to past economic loss, the plaintiff claims that she lost income at the rate of $750 net per week, and this appears to be accepted as appropriate by the defendant. It is convenient to allow the amount received as workers' compensation benefits up to 23 October 2011, together with $750 per week thereafter, 172 weeks, $129,000 plus $74,560.25, a total of $203,560.25. Interest should be allowed on $129,000 for 172 weeks at 5% per annum, which comes to $21,478.50. There should be a further amount of 12% of past loss allowed for loss of superannuation entitlements, which comes to $24,427.23.
[233] For future economic loss the plaintiff seeks the loss of her weekly income, increased to $850 net a week to allow for future promotions and pay rises she would have obtained but for the injury. It is not at all clear that the plaintiff's future prospects apart from the injury can be assessed with such precision, for example, there is no evidence of any particular career path that was open to her. One would expect that there would be some prospect of promotion, but I note the evidence that she was somewhat inflexible about changing positions, and there is I suppose also a risk of redundancy. Presumably at some point the position of the Department will be impacted by the development of the Commonwealth NDIS, though there was no evidence before me as to the likely impact of that, except for some evidence of Ms Harris this may mean she has to obtain other employment: p 4-82. The ultimate effect may not yet be known, but I suppose there was also the prospect of redundancy, at least in Maryborough.
[234] I think there should be some discount for vicissitudes of life anyway, and in all the circumstances I think the appropriate approach would be to allow 12 years at $750 net per week, with a relatively modest discount, on the basis that the possibility of promotion on the one hand cancels out the possibility of redundancy on the other hand, together with the chance of some future employment anyway, which is unlikely to be more than limited and part-time work. Allowing a multiplier of 474[155] this produces an undiscounted sum of $355,500, which I would discount to $300,000 to take into account the vicissitudes of life. Loss of superannuation entitlements should be allowed at 12% of the amount of the award, $36,000.
[235] The plaintiff also seeks a Fox v Wood component of $9,105, which I would allow. Special damages include the amount refundable to Medicare of $1,495.75 and expenses paid by WorkCover $8,673.10, together with some allowance for medication and the cost of visiting medical practitioners. These amounts are not quantifiable on the evidence, but I will allow $3,000, giving a total for special damages of $13,168.85, of which $3,000 will carry interest for six years at 5% per annum, $900. There was also evidence that the plaintiff will require medical treatment in the future at a cost of $9,000, and further medication in the future, no doubt indefinitely; for future costs I will allow a total of $15,000.
[236] Accordingly my precautionary assessment of Ms Palmer's damages may be summarised as follows:
[237] Ms Harris was born on 6 November 1956 and is now 58. She was away from work from 18 to 25 January 2009 on leave, and soon after she returned she consulted her GP complaining that there were a lot of issues at work and that she was unable to cope: p 5-35. She was crying at the time, being upset about what had happened to others that she knew, as well as because of concern about whether there were to be complaints about her as well. She was prescribed some medication and given a week off work, and on 16 March 2009 she saw a doctor who gave her another week off work.[156] On 14 May she again saw him, emotional and crying, complaining that she was unable to cope, and was referred to counselling.[157] Apart from this however she continued working until 30 June 2009: p 4-69, 73. She was then off work on WorkCover before commencing a graduated return to work in October 2009, initially working only in the office. Her doctor did not want her to have contact with the people who had been making the allegations.
[238] As a result of a further incident she had a panic attack in December 2009 and was again off work for some months, but commenced a graduated return to work on 15 February 2010: Exhibit 35. In October 2010 after some conflict with the new manager she had some further time off work, but she got back to the job, which she wants to do, and is persisting in it. On the other hand, Dr Byth expressed the opinion that her persistence with work was a defence mechanism to control her anxiety and depression, and he thought it likely that sooner or later this mechanism would cease to function. He was of the opinion that she was suffering an adjustment disorder with anxiety and depressed mood.
[239] Ms Harris said that it still hurts when she has contact with people who have complained about her and that every three or four weeks she has a bit of a meltdown, and cries and will not talk to anyone: p 4-81. Her manager supports her to enable her to work around these events, and she is able to maintain the work required of her position. She had intended to work until she was 65, and indeed still wants to work: p 4-81. She said there was some uncertainty about her position with the implementation of the NDIS, but that she knew someone in a different organisation who she believed would employ her: p 4-82. She is still taking Lovan, an antidepressant, and Stillnox at night-time to sleep: p 4-83.
[240] In relation to Ms Harris the defendant submitted that her psychiatric problems had really been caused by the fact that complaints had been made against her, and by the fact that she was continuing to work with people who had made or supported those complaints, and these were not matters for which the defendant was liable. On this basis it was submitted that the plaintiff had not shown any causation in relation to any of the matters relied as negligence, and given my findings there is some force in that proposition. It was submitted that if there was some relevant negligent stressor, it could only be responsible for a small part of the plaintiff's injury, on the same grounds as in relation to Ms Palmer. For the reasons given in relation to her, I reject that approach in principle, but all I can do is assess quantum on the basis that the defendant is responsible for the psychiatric injury she in fact suffered. If a different view is taken elsewhere, it will be necessary to revisit the issue of causation.
[241] Dr Byth assessed Ms Harris' functioning at 60/100, so that she was functioning better than Ms Palmer, but sill significantly impacted by her condition. Overall she appears to have been left with a serious psychiatric injury which significantly compromises her enjoyment of life and her ability to work, though she is currently persisting in work in a way which Dr Byth does not regard as stable in the long term. I expect that if her ability to keep working is lost as a result of some incident or her simply ceasing to cope, her condition will become worse because that coping mechanism will be lost to her. In the witness box Ms Harris presented as the most conspicuously distressed of the plaintiffs, but that may be that because at that time necessarily she was not able to cope by trying to put the matter out of her mind.
[242] My impression generally is that while she is able to continue working she is coping better than Ms Palmer, but that if for any reason she is unable to work her condition will deteriorate and probably become comparable. It is inevitable that at some point she will cease working, so this is not a deterioration that can be kept at bay forever. She is a little older than Ms Palmer. In all the circumstances, I assess damages for pain and suffering and loss of amenities at $52,000, of which I would apportion $22,000 to past loss. The psychiatric injury developed over a period of time, but for ease of calculation I would allow interest for six years at 2%, an amount of $2,640.
[243] Although Ms Harris has been still at work for most of the time since early 2009, there were significant periods when she was not working. Ms Harris' net income from her employment was $39,039 in the year ended 30 June 2006, $42,247 for 2007, $48,117 for 2008 and $50,148 for 2009.[158] In the year ended 30 June 2010, 2011 and 2012 there were also payments from WorkCover Queensland; in the year ended 30 June 2013 net income was $62,601. I take it that during that year she was in effect working normally. According to document A12, but correcting for an error in the net income paid by DSQ for the year 2012 financial year (see document A13) the net income received by the plaintiff was $62,094 in 2012. If there had been a proportionate increase in the intervening years, her net income in 2010 would have been $54,130, and in 2011 $58,112, a total of $112,242. In fact in these years her net income was $43,699 and $52,408 respectively (document A12) a total of $95,107. Prima facie therefore the net income lost by the plaintiff during the years when she was receiving workers' compensation payments and not covered by them came to $17,135.
[244] There is one difficulty with these figures; according to document B12 the gross WorkCover payments in those three years, the only three which were relevant, came to $41,253, but according to document A3, weekly benefits which were paid over a period from 30 June 2009 to 2 September 2011 totalled $77,497.20, including payments to the Tax Office. The explanation appears to be that for the period from 30 June 2009 to 14 February 2010 compensation payments were made by WorkCover through Disability Services Queensland, so this would be included in the amount received by the plaintiff from DSQ, but still recoverable as a payment by WorkCover. I total these payments to $35,083.73, which does not precisely correspond to the difference between the payments in document A12 and the payments in document A3, but is close. All fell within the 2010 financial year, and comprise most of the gross income of $39,763 shown as paid by DSQ to the plaintiff for that year in document A12.
[245] It appears therefore that for the 2010 financial year the actual division of gross income to the plaintiff was $4,679 from DSQ, and $49,397 from WorkCover. This gives a total gross income for the year of $54,076, compared with $64,486 for 2009 and $82,365 for 2013. Assuming that the gross income for 2009 and 2013 were unaffected by the injury, which appears to be consistent in the evidence before me, that suggests an increase in gross income of about $4,500 for each of the intervening years had the injury not occurred. This supports the proposition that the plaintiff in 2010 lost income because she was no longer operating on a 24 hour 7 day a week roster, where she received loadings for operational work, and other allowances, though it suggests that the resulting loss was about $15,000 gross rather than the $20,000 claimed in submissions: para 150.
[246] However what really matters in past economic loss is the net income lost by the plaintiff during the years where her earnings were affected by the injury. It appears from the figures in document A12 that in substance by the year ended 30 June 2012 the plaintiff's earnings had ceased to be affected in this way. It is clear from document A2 that by April 2012 the plaintiff was receiving the various penalty rates associated with shift work and other operational benefits. In all the circumstances I am not persuaded that the extra loss in net income was greater than the figure of $17,135 identified earlier.
[247] It was submitted for the plaintiff that she had missed opportunities for advancement and had been unable to obtain the benefits of increments and progression, but it is not clear that benefits of increments etc. were not available to her at least by the 2012 financial year, and subsequently. My impression of the plaintiff in the witness box was that she was keen on what might be described as the hands-on caring work, and on the whole I think it unlikely that she would have progressed with promotions had the injury not intervened. It is difficult to see that the evidence justifies any greater allowance of past economic loss than the total of this loss in net income, plus the recoverable amount of weekly compensation payments, which despite the agreement in submissions by counsel seems to me from document A3 to come to $77,497.20 (there was no lump sum paid to the plaintiff).
[248] The figure of $100,000 conceded by counsel for the defendant actually appears to be generous, but I suppose it makes some allowance for what seems to me to be a slight possibility that the plaintiff might have moved into a more senior role had the injury not intervened. In all the circumstances, I would assess past economic loss at $100,000, of which $22,502.80 carries interest. The loss was largely suffered between mid-2009 and mid-2011, so I would allow interest on the non-refundable component at $22,502.80 for four and a half years at 10%, an amount of $10,126.26. There should be a further amount of 12% of past loss allowed for loss of superannuation entitlements, which comes to $12,000.[159]
[249] As for future economic loss, at the present time the plaintiff is suffering no immediate economic loss, but there is a significant risk that the plaintiff will be unable to work in the future, and if that occurs there would probably be a deterioration in her condition which would make it very difficult to obtain alternative employment. It appears that she is keen to work in caring for people with disabilities, and on the evidence if for some reason her current job became untenable or came to be abolished because of changes in the system, she could obtain other employment in that area. No doubt whatever changes there are to the provision of Government services to people with disabilities, there will still be people with disabilities and someone will have to look after them.
[250] The real concern for the plaintiff's future is the risk that for some reason or other, her condition will become worse, she will no longer be able to cope with work, and she will then lose the benefit she obtains from work as a coping mechanism, so that her condition is likely to deteriorate which will make it even harder to get any work. On Dr Byth's evidence this is a significant possibility, and accordingly a significant amount should be allowed for the chance that this will occur at some time during what would otherwise have been her working life. At the present time I assume she is earning about $67,000 net per annum, and a figure of about $200,000 would be the equivalent of three years loss of wages at that rate. That is probably a realistic starting point in the light of the medical evidence, though the figures should be discounted because it would be suffered in the future, and for the vicissitudes of life, and in all the circumstances I would assess as future economic loss a lump sum of $160,000.[160] I would allow a further 12% for the loss of future superannuation, $19,200.
[251] A Fox v Wood factor of $6,225 was uncontentious and I would allow that. According to document A3, WorkCover paid medical and chemist expenses totalling $11,748.33, rehabilitation expenses of $5,290.68, and travelling expenses of $2,119.46, a total of $19,158.47. There is also an amount recoverable by Medicare, which appears to be $355.80. The plaintiff claimed for additional medication outside the amount paid by WorkCover, and some additional travelling expenses and rehabilitation expenses. The plaintiff has been continuing to take anti-depressant medication, and sleeping tablets, at a cost of about $285 and $565 per annum respectively, so I will allow $4,000 for past medication, and there should be some further allowance for out of pockets on visits to medical practitioners, which are also continuing. There was no specific evidence for the detail of this, but I would allow a further $4,000 for this. That produces a total of $27,214.27 for special damages, of which $8,000 represents out of pocket expenses, on which I would allow interest for six years at 5% per annum, $2,400.
[252] No doubt the medication will continue, and Dr Byth has recommended further specialist treatment over the next three years at a cost of $9,000. I expect there will be other occasions when medical treatment will be required in the future, particularly if the plaintiff's condition deteriorates as a result of the loss of her work. In all the circumstances, I will allow $20,000 for future medical and pharmaceutical expenses.
[253] Accordingly my precautionary assessment of Ms Palmer's damages may be summarised as follows:
[254] Ms Hayes was born on 16 May 1969, and is now 45. She was off work from 16 January 2009 for about six months, but after two weeks back at work she found she could not work in the same office, and went off work again. She worked with another department for three months but when required to work again in the Maryborough office she went off work again. It appears that her workers' compensation payments stopped on about 14 August 2009,[161] but she continued to be paid by DSQ until 6 December 2013, when she took retirement on medical grounds: p 2-45; Exhibit 4, document A6, A7. I assume therefore that after August 2009 during the periods when she was not in fact working she was still being paid by the Department, on the basis that she had been cleared to return to work but the Department had not found suitable alternative employment for her. Prior to the injury Ms Hayes was keen to continue to progress within the management structure of the Department, and her aim was ultimately to get into senior management: p 2-50.
[255] Ms Hayes said that while she was in Maryborough she was suffering anxiety attacks, and was reluctant to go out in case she came upon someone who was involved in the dispute: p 1-79. She also suffered from loss of appetite, and was crying a lot. After she moved to Brisbane things were better initially, but in time she found she was getting anxiety attacks again, if she was placed under stress, for example if her workload became heavy. After a time she began to feel her condition deteriorating again, she became depressed and had anxiety attacks, and she just could not continue to work: p 1-80. She had thoughts of self-harm, and of running away, and at times would just collapse on the floor at home crying.
[256] At the time of the trial she was still taking antidepressants, but no longer seeing a psychiatrist or receiving counselling: p 1-81. She said however that she would considering counselling: p 2-13. She said that she then felt unemployable, was scared of getting another job, and was finding it hard to function or plan in any way: p 2-50. She had in mind some travel, but she was just focusing on getting better.
[257] Evidence of Ms Hayes' condition after 2009 was given also by her partner, who began living with her at some unspecified time after June 2009: p 5-49. She recalled while they were living in Maryborough an occasion when they were in a supermarket and Ms Hayes saw someone associated with her problems and had an anxiety attack: p 5-49. After they moved to Brisbane things were better for a time, and she became more willing to leave the house, but after a time her condition deteriorated, and when she came home from work she would often just go to bed, saying she had a headache: p 5-50. They now intended to travel, but there was no definite plan, in particular about whether Ms Hayes will be working: p 5-51. She had however spoken about doing cleaning work: p 5-52.
[258] I have already referred to the medical evidence; I note that in August 2011 Dr Byth assessed the plaintiff's level of functioning at 60/100, but that seems to have been while she was working in Brisbane and doing relatively well; my impression is that she has since deteriorated, and that was also the view expressed by Dr Byth in Exhibit 5, document B12. Her condition is at the moment effectively preventing her from working, and it appears likely that any significant future work would be conditional upon her condition being improved by further psychiatric treatment. It may be that with further time away from the Department, and if she is able to unwind a bit with travel, that will help her condition. Accordingly I think there is some prospect of improvement, but it is unlikely to improve beyond 60/100, and unlikely to improve to the point where she would no longer be suffering significantly in her personal life.
[259] As in the other matters, I can only make a precautionary assessment on the basis that the defendant is liable in respect of the injury that the plaintiff has suffered, and is still suffering. In view of the plaintiff's age and allowing for the possibility of some improvement in the future, I would assess damages for pain and suffering and loss of amenities at $70,000, of which I would apportion $25,000 to past loss. I would allow interest at 2% per annum for six years, an amount of $3,000.
[260] With regard to past economic loss, the plaintiff sought the amount of the WorkCover benefits, $38,819.44, Exhibit 4, document A3, together with the loss of the net earnings from 7 December 2013 to the date of judgment, at the rate of $1,100 per week. The defendant conceded that it was also reasonable to compensate for the 28 weeks' special leave that the plaintiff received after she ceased to receive WorkCover payments. I would allow as past economic loss the amount refundable to WorkCover, $38,819.44,[162] plus 28 weeks' special leave at $1,100 net per week, a figure which the defendant appeared to accept, and 62 weeks at $1,100 net per week in respect of the period after her retirement on 7 December 2013, a total of $137,819.44. I would allow interest on the non-refundable component of $99,000 at 5% per annum for two years, an amount of $9,900. I would allow a further amount of 12% of past loss for loss of superannuation entitlements, which comes to $16,538.33.
[261] With regard to future economic loss, the plaintiff has on the face of it lost $1,100 per week (or more because of the prospect of further advancement) for the next 20 years or more, subject to discounting for the vicissitudes of life and some offset for the chance of some future employment. Even without allowing for increases in earnings, $1,100 net per week discounted on the 5% tables for 20 years comes to $732,600,[163] and in the light of the plaintiff's advancement within the Department prior to all this, some allowance should be made for the prospects of further promotion, so a starting point figure in the order of $800,000 is probably realistic. Discounting for the vicissitudes of life would reduce this to $680,000. The medical evidence suggests that the plaintiff will not be able to do managerial or supervisory work in the future, but I think there are good prospects of the plaintiff being able to do a reasonable amount of basic manual work, and she would probably in time have a capacity to do manual work on a fulltime basis, though there is I think a prospect that even in that sort of work difficulties could arise because of her psychiatric condition, so there would probably be periods from time to time when she would not be able to work, or would be looking for alternative employment after losing her job. Overall I would discount this figure by about one-third, $230,000, to allow for her residual earning capacity, and would assess future economic loss at $450,000. Loss of superannuation entitlements should be allowed at 12% of that amount, $54,000.
[262] There is apparently no Fox v Wood component in the case of this plaintiff. WorkCover paid medical expenses totalling $4,587.14, including some chemist expenses, rehabilitation expenses of $1,876.03, and travel expenses of $368.56.[164] Apart from this, there were medical expenses covered by Medicare in the sum of $3,370.20.[165] The plaintiff has been on medication for quite some time, and I think a global amount of $4,000 to cover out of pocket costs is reasonable. There was also a claim for treatment expenses associated with a gastrointestinal procedure, in the sum of $1,035; it is not clear that this was supported by any evidence, either quantifying the amount of connecting it with the psychiatric injury, and I regard it as not proved. Special damages therefore come to $14,201.93, and I would allow interest on out of pocket expenses, $4,000, for six years at 5% per annum, $1,200. There was evidence that the plaintiff requires further psychiatric care which would cost up to $9,000, and I expect there will also be other medical expenses in the future associated with her care, and additional medication. I expect she is going to require medication in the long term. In the circumstances I would allow $20,000 for future expenses.
[263] Accordingly my precautionary assessment of Ms Hayes' damages may be summarised as follows:
[264] The plaintiff was born on 29 May 1967, and she is now 47. The plaintiff consulted her general practitioner, apparently for the first time, about stress and anxiety at work on 18 September 2008: p 3-29, Exhibit 6, document B4, p 5. There was a WorkCover certificate given in 2008, but only in relation to medical expenses, and there was no time lost from work: Exhibit 6, document B8, p 2. She saw the GP again on 15 July 2009, when she was referred to counselling: ibid, p 6. Then on 18 August 2009 there was a reference to work-related depression and anxiety, noting that at that stage she was seeing a psychologist for counselling. Ms Greenhalgh said that she went off work on compensation in May, apparently in 2009, though she had previously had some days off under the flexi-time system (p 3-13), she began a graduated return to work in August, and was back working fulltime in February 2012. When she saw Dr Grey she was still working fulltime and had been for the previous 12 months, so it must have been in May 2010 that she went off work. The plaintiff was receiving WorkCover benefits from 16 August 2010 to 18 December 2010, and from 8 February 2010 to 14 August 2010 WorkCover benefits were being paid to DSQ in relation to her: Exhibit 6, document A13.
[265] Dr Taylor, her treating psychiatrist, in a letter dated 7 July 2010 said that the plaintiff had been off work recently: Exhibit 6, document B11. This confirms she in fact went off work in May 2010. On 5 February 2010 her psychologist reported that she was not fit to work more than four days a week: Exhibit 6, document B9. On 12 May 2010 she reported to Dr Grey that she had been working four days a week, but she had the previous day moved to a host employer, a different department, because she did not "feel safe" working for DSQ. This was after she had become aware of the allegation of racial discrimination made against her in the Anti-Discrimination Tribunal. She complained about feeling humiliated because she had to work somewhere else, and that management within DSQ had not been supportive. Dr Grey at that stage diagnosed her as suffering a major depressive episode which appeared to be deteriorating and said that she required further treatment.
[266] In a report on 4 March 2011 Dr Grey advised that the previous month the plaintiff had said that she had begun a graduated return to work in August 2010, and had been at that stage working for about 14 hours per week. Dr Taylor advised WorkCover on 2 June 2011 that the plaintiff was suffering from major depression in partial remission, noting that she was then working about 18 hours per week, and he did not expect her to return to fulltime work before 2012: Exhibit 6, document B18. She was not working fulltime when she saw Dr Byth on 25 August 2011: Exhibit 6, document B19. It is a little difficult in the evidence to identify just when the plaintiff returned to fulltime work. The submission for the plaintiff was that it was 12 September 2011; this was the first day after the end of the last period of payment of weekly benefits by WorkCover, according to Exhibit 6, document A13.
[267] The matter however is a little more complicated than that. There are documents in evidence which indicate that on 12 September 2011 her former position was changed from Service Manager to Specialist Response Officer: Exhibit 6, document A9. There are a series of timesheets covering the period 12 September 2011 to 20 January 2012, Exhibit 6, document A10, which as I read them indicate that she was ordinarily working only a four day week, with one day's unpaid leave per week, and was initially only working a six hour day on the days she was working, except that one day a week she worked only a four hour day. It is not clear whether this was because of some flexibility in her working hours, or because that was the limit of her graduated return to work. There was supposed to be an increase in hours from 16 December (document A9) and it appears that from about that time she began regularly working a standard day on those days she worked, though she remained on four days a week during this period. Document A19 contains a schedule of agreed earnings, but only up to 30 June 2012, and the same applies to document A20, a statement of loss or damage.
[268] The plaintiff said that she still has anxiety attacks when she sees certain RCOs, and she has had to take some time off work because of anxiety since she returned to fulltime work: p 3-13. She is not now taking antidepressants, and said she could not take them: p 3-14. She said that when her condition was worse she could not look after her children, and just wanted to die; she still has thoughts of wanting to die at times. She now intends to retire at 55, to spend more time with her grandchildren; she would retire earlier if she could afford to do so, but they have to live on her income: p 3-14.
[269] Ms Greenhalgh's partner gave evidence which confirmed that there had been substantial changes in her behaviour and personality since early 2009. She had turned into a recluse, there was no affection shown for him or the family, they did not go on family holidays and she did not want to leave the house: p 7-49. She did not communicate as much as she used to, and now sleeps in the lounge rather than the bedroom. On the basis of his evidence, the injury has had a significant adverse effect on the plaintiff's personality and greatly diminished her enjoyment of life.
[270] Dr Byth interviewed Ms Greenhalgh by telephone on 26 February 2014, and expressed the opinion that she continued to suffer from major depression and anxiety, though she had been able to return to work and had gained some confidence: Exhibit 6, document B20. He noted that she had ceased medication because of an inability to tolerate it, and had ceased counselling because it did not seem to be helping. He thought her level of psychiatric impairment remained class 3, moderate impairment, 25-50% impairment. He thought she still needed further psychiatric treatment, which would cost about $9,000. Her major depression and anxiety had become chronic and entrenched, and he did not expect there to be major improvement with further treatment, particularly because of poor tolerance of antidepressants. I accept Dr Byth's evidence, and find that the plaintiff has suffered and is suffering from major depression and anxiety; there has been some improvement, but she remains subject to moderate psychiatric impairment. She is coping at work, but that is all.
[271] My assessment of damages in this case can again be only on the basis that the defendant is responsible for the whole of the plaintiff's injury. In this case it appears clear that there was one later significant stressor, in the form of the later complaint to the Anti-Discrimination Tribunal, which was independent of the matters litigated in the action, and which probably had the effect that the plaintiff's psychiatric condition was made worse than otherwise it would have been; it was only after this complaint had been brought that the plaintiff was unable to continue to work. The difficulty I have however is that, in circumstances where I am not identifying any particular relevant stressors for which the defendant is liable, or being able to identify any particular part of the events which is the basis of its liability, it is difficult for me, and probably not very helpful in the long run, just to isolate out the effect of the new complaint in January 2010.
[272] On the whole I think this plaintiff's psychiatric condition is currently not as bad as that of Ms Palmer, but Ms Greenhalgh is younger and in all the circumstances I assess damages for pain and suffering and loss of amenity at $60,000, of which I would apportion $22,000 to past loss. The psychiatric injury developed over a period of time, but for ease of calculation I would allow interest for six years at 2%, an amount of $2,640.
[273] With regard to past economic loss, it appears that for at least most of the period the plaintiff was off work she was receiving workers' compensation payments, so that the amount of her refundable compensation payments would be a starting point for past economic loss. For the plaintiff it was submitted that there was some continuing loss of income in the form of $50.00 a week because there were some managerial duties that she had previously been performing which she was not now able to handle. It is not clear however that that is supported by the evidence.
[274] Document A19 suggests that there was some loss of a net income in 2010, 2011 and 2012: the net income in 2009 was $54,725.00, in 2010 only $50,495.00, in 2011 a total of $49,914.00, and in 2012 a total of $49,548.00. That suggests a net loss of about $5,000.00 per annum apart from the loss of earnings made up by workers' compensation payments, but I do not know even whether that loss continued. This may be a reflection of the loss of the managerial role; it does appear that her position changed from Service Manager to Specialist Response Officer on 12 September 2011, and I would expect there would be some change in her pay rate associated with this, though I have no evidence of it. Indeed, it is not clear whether, when Ms Greenhalgh was working just four days a week in late 2011 and early 2012, this was because her psychiatric injury effectively prevented her from working longer hours, though given the evidence about the severity of that injury I would expect that it was for that reason.
[275] The position is quite unsatisfactory, but I am not going to speculate about the periods of time not covered by the evidence before me. In relation to the three years however where there is a loss of net income of about $5,000 a year suggested by document A19, I would allow that sum of $15,000, together with the workers' compensation refund of $50,614.77: Exhibit 6, document A13, p 11. This gives a total for past economic loss of $65,614.77, and I would allow interest on the out of pocket loss of $15,000 for four years at 10%, in the amount of $6,000. There should be a further amount of 12% of past loss allowed for loss of superannuation entitlements, which comes to $7,874.
[276] As to future economic loss, I assume at the present time the plaintiff is not suffering any economic loss; at least, the evidence does not demonstrate to the contrary. She loses some time due to the effect of her psychiatric injury, but there was no evidence that this cannot be accommodated in the sick leave available to her. I suppose there is some risk that her condition would deteriorate to the point where she would be no longer able to work, or to keep working for this employer, but given that her work is continuing, that chance would appear at the moment to be fairly slight. Of greater significance perhaps is that she appears to have lost interest in her career, is probably not interested in pursuing promotion which may otherwise have come her way, and now has in mind retiring much earlier than she otherwise would have.
[277] For the plaintiff it was submitted that a global sum of $150,000 should be awarded to accommodate this, though that was obviously not particularly related by any calculations to her current level of income, or any particular potential level of income. If she is retiring earlier because of the effect of her psychiatric injury is to cause her to lose interest in work, the economic loss she will suffer because of the earlier retirement is compensable.[166] Using a current net income of $1,000 per week, the loss of 10 years work beginning in 10 years' time has a present value of $250,000.[167] There is a chance that she may work for longer than this, but there is a chance that her condition may deteriorate and she may not work that long, and this factor does not make any allowance for any loss of the chance of improved earnings from promotion. In those circumstances, it is probably conservative, and I will not discount it further for vicissitudes of life. For future economic loss I would have allowed $250,000, and 12% of that should be allowed for loss of superannuation, a further $30,000.
[278] A Fox v Wood allowance of $4,052 was not controversial. Expenses paid by WorkCover were rehabilitation expenses totalling $7,434.50, travel expenses of $675.30 and medical expenses including chemists' expenses of $12,918.28.[168] In addition there was a further $5,054.80 medical expenses recoverable by Medicare.[169] This is a total of $26,082.88. In addition there was a claim for out of pocket expenses, essentially on a global basis, of $2,500, which appears to be not particularly contentious and I would allow it, together with interest on that sum for six years at 5% per annum, $750. There was evidence that the plaintiff requires further psychiatric treatment at a cost of $9,000, and despite the difficulties with antidepressants there may well be some further costs for medication, and some costs for other medical attendances; for future expenses I would allow a total of $12,000.
[279] Accordingly my precautionary assessment of Ms Greenhalgh's damages may be summarised as follows:
[280] In each matter there will be judgment for the defendant. I will receive submissions as to costs after these reasons are delivered, but expect that they will follow the event.
[1] This was, or operated within, a government department which has had different names at different times, but was at the relevant time the Department of Communities. I shall refer to it simply as "the Department".
[2] A copy of the statements became Exhibit 18. I was not referred to any part of this exhibit in submissions and did not in fact look at it, as no need to do so emerged during my consideration of this matter.
[4] Documents 10 (which includes the original complaint), 13, 16A, 40. Exhibit 2 is a 2 volume bundle of documents made one exhibit: I shall refer to documents in Exhibit 2 just as "document x".
[6] Her permanent appointment was in February 2007: p 1-32.
[9] She handled rostering and payroll for the office: p 3-92. The move was prompted by her husband's work: p 5-46.
[10] See document 2, p 4, 5; Hayes p 2-51, 52. There was pressure from the department to reduce overtime to cut costs: Smith p 6-22, 23.
[15] Although as service manager she received a lot of comments from other staff that Johnson was loud and overbearing: p 1-35.
[16] Palmer p 3-65-68; documents 12, 15. There were difficulties getting Johnson to put in proper documentation for leave, etc.
[17] She preceded Mr Costello as manager of this unit.
[19] Ms Steele-Wareham was not the appropriate person to whom to address such a complaint, an example of Johnson not following correct procedures: p 9-20.
[20] Ms Hayes version of the conversation, in document 73 pages 13,14, 20 was significantly different, with Ms Johnson being much more aggressive and Ms Hayes ending the conversation. It strikes me as more plausible, and was supported by a contemporaneous file note: p 21.
[21] Ms Steele-Wareham referred it to Ms Davis who was more senior: p 9-66.
[22] The first page of this bears two dates, one at the top "July 2008" and one in a footer "16 September 2008". For part of the referral process, see document 11.
[23] The complaint was characterised as extending beyond the behaviour of Ms Hayes to some aspects of general management process, and morale.
[24] Ms Simpson claimed she said this on advice from Human Resources: p 8-88. That seems quite implausible.
[25] She said in evidence she was not conducting an official investigation: p 5-82. If she was not investigating the complaint, there was no point in her doing anything else about it.
[26] This would have been wrong, since the test for bullying and harassment is objective: Smith p 6-50; Exhibit 13, Exhibit 14.
[27] Simpson p 8-83 line 1, p 8-85 line 43, p 8-86 line 6. As well, Ms Simpson conceded Ms Hayes became upset when she spoke to her, more consistent with Ms Hayes' version: p 8-84. That Ms Hayes was quite upset was confirmed by Ms Cuskelly: p 5-67. See Hayes p 1-40.
[28] G Smith p 6-42. In document 78 Johnson referred to lodging it on 18 December 2008, but that seems to have been an error. It was heard on 13 January 2009 and resolved on the basis that the decision on the original complaint was withdrawn and it would be covered by the larger investigation: document 56.
[29] She has since retired, and gave evidence by telephone from California: p 8-50.
[30] The text suggests that this was separate from the Fair Treatment Appeal. Ms Kill regarded this as a clear case to refer the material to the CMC: p 8-58.
[31] She was not called, but I suspect that this conclusion was based on the number and (superficial) seriousness of the complaints.
[32] Document 21 is another version of the letter, dated 10 January 2009, but the letter was sent on 8 February, as appears from the reply. Ms Harris said this letter was sent to the MSC where it was seen by her and faxed on by her to head office at Mr Costello's direction: p 4-60; p 5-25. Despite p 5-38, I suspect she in fact saw document 37 on 17 January 2009. Document 56 p 8 has the fax number obscured, but document 21 has a Brisbane fax number, whereas document 37 was sent to Ms Steele-Wareham who was in Maryborough.
[33] Kill p 8-53, 55, 62 - that is to say, dismissed.
[34] To give effect to this, a senior executive sent a circular to all staff (including the plaintiffs) at MSC the same day: document 22. It drew attention to the EAS.
[35] Ms Steele-Wareham maintained that this occurred on 16 January 2009: p 9-10, but see p 9-22. Document 25 shows it had occurred by 13 January 2009.
[36] A letter by Johnson to the CMC Exhibit 32 dated 19 January 2009 enclosing the statutory declaration document 10 was referred to the department: Smith p 6-41. The department had already referred the complaints it had to the CMC. A copy of the 25 statements sent became Exhibit 18.
[37] Neither this email nor document 26 could have been in response to document 37, as they preceded it. It is possible that they were a response to document 56.
[39] Ms Kill took this as a sign that they took the dispute seriously, but said it did not affect her decisions: p 856.
[40] Document 91; also on 21 January 2009, and see document 52.
[41] Correctly, in the case of document 26: Steele-Wareham p 9-22, 23.
[44] I suspect this was the letter Ms Harris saw on 17 January (a Saturday) and passed on to Brisbane: p 460 but see p 5-38. On 16 January Ms Kill informed the union that Ms Palmer, Ms Hayes and Ms Greenhalgh would be moved to other duties: agreed facts 24-26; document 49, which is not accurate.
[45] This was in response to a question where I invited her to compare the complaints with paragraph 1 in appendix B to document 8, a complaint by someone else which is manifestly nonsense.
[46] See e.g. document 39, 43, 44. It may not have extended to 21 January: see Steele-Wareham p 925. Cuskelly p 5-55, 60, 79.
[47] Palmer p 4-50; Greenhalgh p 2-68; Hills p 7-62; Byrnes p 7-25, 26; Sexton p 7-36.
[48] From other evidence it was taken at the latest on 16 January, and I suspect it was taken that day, after she had heard about the meeting that morning.
[49] Her directions in this regard would have been given to Ms Davis: p 8-66.
[50] The plaintiffs' evidence indicates that these instructions were not complied with. See also SteeleWareham p 9-35. Clearly they ought to have been, but this was not relied on as a particular of negligence.
[51] The MSC had plans to deal with strikes but they seemed to me to be limited only to short strikes: Palmer p 3-63; Steele-Wareham p 9-54; Greenhalgh p 2-53.
[52] Probably on 17 January, since the decision was apparently taken on 16 January, and Ms Steele-Wareham was told after the meeting on 16 January: p 9-11; but see p 9-32, where she appears to have accepted the contrary, I think incorrectly.
[53] Ms Steele-Wareham did not consider that it was viable for her to continue as a service manager but without contact with RCOs: p 9-33. The point was probably academic: p 9-34.
[55] See the exchange of emails on 15, 16 January 2009, document 33.
[56] Presumably on 16 April 2009: document 62, when she was given a letter to her about the enquiry dated 15 April, document 59.
[57] Page 3-73, p 4-34; he seems to have said very little about why she was being stood aside.
[58] There was no evidence of a recurrence of the shoulder problem despite this, presumably because she did so little work at this desk. Otherwise, this was clearly negligent: Steele-Wareham p 9-43, 44, 51.
[59] This referred to the motion of no confidence in her and others passed at the meeting on 14 January: document 28.
[60] Document 41; Cuskelly p 5-56. The form would have gone to Mr Price: p 5-63.
[61] As well, Ms Johnson, who was picketing, came into the office at times: Cuskelly p 5-63.
[62] Ms Greenhalgh told Ms Hayes of this, which upset Ms Hayes: p 2-8, 9.
[63] To this point, this paragraph is uncontroversial: Steele-Wareham p 9-15. Something different was put in cross-examination: p 3-40, 41.
[64] Ms Steele-Wareham said this was not her decision: p 9-39. She understood it was part of an agreement Ms Kill made with the AWU. Ms Kill said nothing about this. Whoever took the decision, it was clearly wrong to pre-empt the decision of the enquiry in this way. (See SteeleWareham p 9-77.)
[65] See also cross-examination p 4-40. Ms Steele-Wareham denied saying this: p 9-15, 53.
[66] Greenhalgh p 3-11; Steele-Wareham, p 9-41.
[67] Greenhalgh p 3-13. Earlier questions suggest that she was speaking of 2009, but other evidence confirms that she stopped work in May 2010.
[68] Agreed fact no 27; at p 4-61 she accepted that she left on 12 January, but I assume that was an error.
[69] This was not true, as Ms Steele-Wareham knew Ms Harris was involved at least by 14 January 2009: statement of claim para 5(w), admitted from para 4(a).
[70] See also Steele-Wareham p 9-13, 55.
[72] See their enquiry notice letters documents 59 (Greenhalgh), 60 (Palmer), 61 (Harris) and 63 (Hayes), all dated 15 April 2009.
[73] The process of finding suitable alternative work was quite prolonged, which in itself would have been stressful: Stokes p 6-71.
[74] The overview, and that part of the report about allegations against Ms Hayes, became document 2.
[75] Documents 81, 82, 83, 84. All complaints against all plaintiffs were not made out.
[76] The precise reason why this did not occur was never made clear to me, but it occurs to me that there may have been concern that the investigators and witnesses may not have been protected in relation to defamation proceedings.
[77] Ms Kill said that the original decision to move Ms Palmer and Ms Hayes from their positions was that this occur on a temporary basis, not as a permanent transfer: p 863.
[78] So long as their impression related to the formal processes of the Department; if their impression was simply based on their expectation as to what in fact was likely to happen to them, it has been justified by events. Ms Steele-Wareham also had that expectation: p 9-66.
[80] Stokes p 6-80; Harris p 4-56, 57 - she attributed this to a copy of Ms Simpson's report being made public.
[81] This is essentially confirmed by his memo of 8 November 2010: document 100. His attitude was that it was all too hard trying to accommodate her.
[82] All of the plaintiffs became distressed at times while giving evidence but this was particularly pronounced in her case.
[83] Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 at [19].
[85] See for example New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486, where the Court divided on the question of whether the police authorities were negligent in failing to put in place a particular system of work.
[86] New South Wales v Fahy (supra) at [4] per Gleeson CJ; Hegarty v Queensland Ambulance Service [2007] QCA 366 at [41] per Keane JA. See also Dr Byth p 10-4, 5.
[87] This appears to follow from the formulation of the test in Wicks v State Rail Authority of NSW [2010] HCA 22; (2010) 241 CLR 60 at [33].
[88] Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317; Koehler (supra) at [35].
[89] By a majority, Beazley JA dissenting.
[90] This case was cited with approval in Hogno v Racing Queensland Ltd [2013] QCA 139 at [50], [51]. a case where there was no other relevant relationship, so more like Sullivan v Moody (infra), also cited.
[91] See also Hunter and New England Local Health District v McKenna [2014] HCA 44 where it was held that no duty of care could exist which would be inconsistent with a statutory obligation: [33].
[92] Further and better particulars, para 5(c).
[93] Exhibit 3, document B4, p 2. Eight days later she was referred to the psychiatrist: ibid.
[97] If she had been given the right alternative work, she might have stayed at work: Dr Byth p 5-17.
[103] Byth p 5-10-12. The first three are the matters in paragraphs 5(j), (k) and (p) respectively; the other two are not in paragraph 5.
[106] This is also supported by Dr Kann.
[107] Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613 at 621.
[108] Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 84 ALJR 226.
[109] The arguments were advanced in terms of negligence only, and I consider it is sufficient to analyse the case only in terms of negligence.
[110] Palmer p 4-7; p 4-40; Steele-Wareham p 9-15.
[111] Greenhalgh p 2-70. Perhaps soon after: p 3-35. I acknowledge that she did not mention this in a document she prepared later, Exhibit 20, but that could have been an oversight: p 3-37.
[112] Harris p 4-75. There was also evidence of her having said such a thing in the office on an undefined occasion: Bruce, p 6-8.
[113] See for example document 38, document 39.
[114] Document 26. There was also evidence from Ms Cuskelly of an unsympathetic attitude towards her: Cuskelly p 5-75, 83.
[116] Stokes p 7-2. From early November 2009, until April 2010: p 7-6.
[117] This is the real issue; it is not a question of whether more support was offered to the RCOs. Offering them support did not give rise to a duty to offer the plaintiffs support.
[118] Paige (supra); O'Leary (supra); Rogerson (supra).
[119] Response to request for particulars of the statement of claim, para 6.
[120] Byth p 5-13; that is to say, her psychiatric state would not have been as bad.
[121] Gallagher (supra); Hegarty (supra).
[122] See second response to the request for further and better particulars of the statement of claim, para 6(a), referring to RCO's identified in para 2. In the light of this, paragraph 6(b) is unintelligible.
[123] The structure suggests that what is contemplated is the assessment of the risks associated with some physical process before it is done for the first time.
[124] There was a suggestion that one manager (not a plaintiff) had had rocks thrown at his caravan during the dispute and left town because of the risk of further hostility (Hayes p 2-43, document 2 p 6) , and that at one time Ms Hayes had reason to fear physical conflict with one RCO: p 150, p 2-33.
[125] Marshall v Queensland Rehabilitation Services Pty Ltd [2012] QSC 168 at [61].
[126] Again the particulars are unhelpfully broad: second response, paras 8, 9.
[127] At least prior to the conclusion of the investigation. Plausibly, she should then have been disciplined for making a false or unjustified complaint, although the department decided not to, in the interests of calming the situation: Hogan p 8-12.
[128] Second response to the request for further and better particulars of the statement of claim at paragraph 10.
[129] Second response paragraph 10(c).
[130] Ms Palmer went home: p 3-77. See also Exhibit 40.
[131] Mr Costello's evidence was that other attempts to counsel Ms Johnson and to control her behaviour were ineffectual: Exhibit 40.
[132] See Exhibit 40. On the evidence before me, I doubt if anything short of dismissal would have been effective to change her behaviour.
[133] Ms Steele-Wareham had a recollection of a conversation like this. Her evidence was to the effect that she was not aware before April 2009 that Ms Harris was one of the people against whom complaints had been made: p 9-55, 56. The contrary was admitted on the pleadings: statement of claim, para 5(w); defence, para 4(a).
[134] Further and better particulars, para 9(c).
[135] The submission for the defendant that it was just wrong was contrary to the admission in the defence para 4(a) of para 5(w) of the statement of claim.
[137] And through Ms Stokes, although it is not clear when she began to work with Ms Harris.
[138] Second response to the request for particulars, paragraph 5(a).
[139] Mr Costello did not give evidence at the trial: in a statement consisting of notes of a conference with counsel which he signed on 24 January 2014 he said he could not recall this happening: Exhibit 40. An application in March 2015 to reopen the plaintiffs' case to call evidence from him was refused, on the ground that his evidence if given was not going to change the outcome.
[140] See Exhibit 40; Costello had no recollection of being told this.
[141] This is the equivalent of paragraph 5(x) in the statement of claim in Palmer.
[142] See particulars of statement of claim para 2(c).
[144] Also supported by Dr Bird, Exhibit 5 document A1(iv).
[145] Second response to request for further and better particulars of statement of claim, paragraph 3(a).
[147] There was no evidence to that effect, and the process adopted strikes me as correct.
[148] Second response to request for further and better particulars of the statement of claim, para 6(a).
[149] See particulars of statement of claim para 2(c)
[150] At least in the legal sense; I suspect that in practice it was a further vindictive complaint brought because the complaints which were the subject of the earlier investigation had been rejected.
[151] Second response to the request for particulars of the statement of claim, para 3(a).
[152] Second response to the request of further and better particulars of the statements of claim, paragraph 8(a), (b).
[153] Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at [106], per McHugh J, Gummow and Hayne JJ agreeing.
[154] Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
[155] Luntz, "Assessment of Damages for Personal Injury or Death" 4th ed 2002, table 2, 12 years at 5%.
[156] Harris p 4-72; Exhibit 4 document B1 p 3.
[157] Harris p 5-63; Exhibit 4 op cit, which notes she was attending counselling through work, presumably the EAS.
[159] The plaintiff claimed 9% of a figure which does not appear to tally with the amount claimed for past economic loss as loss of past superannuation benefits, para 180, and the defendant did not make any submission about loss of past superannuation benefits, but I am calculating this on the same basis as in Palmer.
[160] I will not detail the submissions of the parties in relation to future economic loss, neither of which was realistic.
[163] Using a multiplier of 666 - Luntz, op cit.
[165] This figure comes from the detailed submissions, rather than document A4, which is quite old.
[166] Medlin v SGIC [1995] HCA 5; (1995) 182 CLR 1; Hirst v Nominal Defendant [2005] QCA 065; [2005] 2 Qd R 133.
[167] The multiplier in Luntz, op cit, for 20 years, 666, minus the multiplier for 10 years, 143, gives a multiplier of 253.
[169] Again this figure comes from the submissions, not document A17.
Palmer & Ors
State of Queensland [2015] QDC 63
(2001) 206 CLR 459
(2003) 212 CLR 511
(2002) 60 NSWLR 371
(2001) 207 CLR 562
(2002) 211 CLR 317
(2010) 241 CLR 60
(2010) 84 ALJR 226
(2007) 71 NSWLR 471
(2007) 232 CLR 486
(2005) 222 CLR 44
(1990) 169 CLR 638
(1995) 182 CLR 1
(1965) 114 CLR 164