Limitation of actions - Postponement of the bar - Extension of the period - Cause of action in respect of personal injuries - Principles upon which discretion exercised - Prima facie case very weak - Claim of sexual harassment laid in negligence - Period of delay long - No reasonable explanation for some of the period of delay.

Workers Compensation - Alternative rights and election between different remedies - Alternative rights against employer for damages at common law - Limitation of time for instituting action for damages - Tasmania - Workers Compensation Act 1988, s135(2) - Application for an extension of time - Factors relevant to the proper exercise of the discretion.

Counsel for respondent: (Attorney-General): S Carey

Solicitors for respondent (Attorney-General): DPP (Tas)

Solicitors for respondent (Ian Abbott): Murdoch Clarke

UNDERWOOD J The applicant claims that between 1986 and 1991, she was the victim of almost daily sexual harassment by the respondent Abbott. She claims that as a result of the sexual harassment, she suffered and still suffers from an adjustment disorder with anxiety symptoms. By September 1994, the symptoms were so bad that the applicant was forced to give up work.

2. During the relevant period, both the applicant and the respondent Abbott were public servants employed in the administration section of Risdon Prison. The applicant was an administrative support officer and the respondent Abbott an executive officer.

3. On 24 January 1995, the applicant issued a writ out of this Court against the Attorney-General, and on 10 November 1995 issued another writ against the respondent Abbott. As "sexual harassment" is not a cause of action known to the common law, the applicant claimed against the Attorney-General damages for negligence, and against the respondent Abbott, damages for assault and/or battery and negligence. The Attorney-General joined the respondent as a third party to the action that had been commenced against him.

4. The applicant's case is that she suffered sexual harassment on an almost daily basis from shortly after the time the respondent Abbott started working at the prison in 1986 until 18 March 1991 without making any complaint. On that day she complained to the Director of Risdon Prison, Mr Ben Marris. There was an investigation and charges of offences contrary to the Tasmanian State Services Act 1994 were brought against the respondent Abbott. A number of those charges were proved. The applicant learned of this on 4 July 1991 and immediately upon receiving the news fell ill. In her evidence, the applicant said that she dropped the telephone, felt sweaty, suffered palpitations and experienced giddiness. She suffered headaches and as a result of all these symptoms, consulted a medical practitioner. She subsequently consulted Dr Lopes, prison psychiatrist and took medication. She was unable to work and received workers compensation. On 15 August 1991 she consulted Dr Sale, psychiatrist, who diagnosed mal-adaptive adjustment disorder with anxiety symptoms. Dr Sale said in evidence, that the history he took from the applicant was to the effect that until she learned of the result of the charges against the respondent Abbott by telephone on 4 July 1991, she experienced no significant symptoms as a result of the sexual harassment. Dr Sale said that this was not an uncommon state of affairs, viz, anxiety symptoms caused by sexual harassment not occurring until the happening of some triggering event such as advice that legal proceedings in respect of that harassment have been successful.

5. By October 1991 the applicant returned to work but the symptoms of her psychiatric illness did not abate and she was forced to give up work in September 1994.

6. The applicant complained to Mr Marris on 18 March 1991 and she was notified of the result of the proceedings against the respondent Abbott on 4 July 1991. No tortious conduct is alleged after 18 March 1991. On the assumption that no injury or damage was suffered until 4 July 1991, the applicant was not entitled to bring proceedings for damages for negligence as of right after 4 July 1994. Accordingly, the writ against the Attorney-General was just over six months out of time when it was issued, and the writ against the respondent Abbott (insofar as it claimed damages for negligence) was some sixteen months out of time. These applications, both dated 31 January 1996, seek orders that the time be extended for the bringing of actions for damages for negligence against both respondents. By consent, they were heard together. As the applicant received workers compensation from the Attorney-General, the application to extend time to bring the action against him is made pursuant to the Workers Compensation Act 1988, s135(2). The application to extend time to bring an action for damages for negligence against the respondent Abbott is made pursuant to the Limitation Act 1974, s5(3). The principles upon which the court exercises its discretion are common to both applications.

7. Before turning to the evidence given on the applications, it is necessary to examine the essence of the applicant's claims. The statement of claim in each action pleads that at all material times both the applicant and the respondent Abbott were employees of the State Public Service. Paragraph 3 alleges that: "On an almost daily basis between 1986 and 1991 the (applicant) was the subject of uninvited, unwanted and untoward approaches and suggestions by the aforementioned (respondent Abbott)."

8. There follow almost three pages of particulars. It is unnecessary to set them all out. The following constitute a representative sample:

- commented on the applicant's sexy legs;

- on numerous occasions put his hands on the applicant's

shoulders;

- told (the applicant) on numerous occasions that the black

stockings she wore aroused him sexually;

- told (the applicant) on numerous occasions about the

different places he would like to have sex;

- on numerous occasions attempted to look up (the

applicant's) skirt.

9. With respect to the particulars, only two bear a date. Another two are prefixed with the words "on one occasion". The remainder are unlimited by date, time, occasion or frequency. The Attorney-General requested further and better particulars but the applicant responded that she was then unable to provide greater particularity. In evidence on the hearing of the applications she said that she was unwell at the time of the request to give further particulars but later recovered sufficiently to be able to give better particulars. However, at this stage, there is no greater particularity of the alleged tortious conduct other than that provided by the statements of claim.

10. The statements of claim proceed to allege psychiatric injury by reason of the respondent Abbott's conduct and in the case against the Attorney-General, that the injury was caused by the respondent's negligence. In the case against the respondent Abbott, the allegation is that injury was caused by his assault and/or battery and negligence. The pleaded particulars of negligence against the Attorney-General are that he:

"(a) Failed to have in place training protocol and/or

procedures for dealing with sexual harassment within the

work place.

(b) Failed to transfer the aforementioned (respondent

Abbott) in circumstances in which (the respondent Attorney-

General) knew or ought to have known the behaviour

constituting the aforementioned approaches and suggestions

was occurring."

11. The particulars alleged against the respondent Abbott are simply that he:

"Spoke the words and performed the acts set forth in

paragraph 3 hereof when he knew or ought to have known that

the (applicant) would suffer personal injury."

12. In argument, Miss James, counsel for the applicant submitted that the claim against the Attorney-General was also based on his vicarious liability for the conduct of his employee, the respondent Abbott. However, the particulars of claim against the Attorney-General do not presently support that submission. Counsel submitted that an application to make appropriate amendments was likely to be granted.

13. The gravamen of the applicant's case lies in the proposition that the respondent Abbott's conduct caused no damnum until either she reported the matter to Mr Marris (18 January 1991) or she was notified of the result of the proceedings against the respondent Abbott (4 July 1991). Dr Sale's evidence was that no symptoms were experienced until the second date although there may have been some minor symptoms following the complaint made to Mr Marris on 18 January 1991. He said that his opinion was based on the history he had taken. Mere exposure to danger is not actionable and accordingly the applicant submitted that the tort of negligence was not committed until 18 March 1991 or 4 July 1991 and that time did not run against the applicant until one or other of those dates. It was therefore submitted that the applicant's right to bring actions for negligence will not be absolutely barred until 18 January 1997 or 4 July 1997, notwithstanding that some of the tortious conduct was committed more than six years before the writs were issued.

14. The applicant and Dr Sale made affidavits and were cross-examined. Undisputed affidavit evidence was received from the officer who investigated the applicant's complaint of sexual harassment and from the applicant's solicitors with respect to the question of delay. I accept the oral evidence of the applicant and Dr Sale, as well as all the affidavit evidence, except insofar as the latter was varied by the former. Whenever the symptoms started, I find that after 4 July 1991 they were so pronounced that the applicant was unable to work and Dr Sale correctly diagnosed her as then suffering from a psychiatric illness.

15. The applicant said that the respondent Abbott began directing explicit sexual remarks to her shortly after he started work in the office in 1986. She said at first that she thought it strange that the respondent Abbott should pick her as an object for these kind of remarks and that it soon made her feel that she did not want him near her. The applicant said that when he came near her she would cringe, become anxious and her heart would "start to race". The applicant said this adverse affect from the respondent Abbott's presence got worse as time went on. She said it became markedly worse at the end of 1986 or early 1987 when she was given the job of reading and censoring the prisoners' mail. She said that a lot of this mail contained material of a sexual nature that she found disgusting. She agreed with counsel for the respondent Abbott however, that this aspect of the prisoners' mail was also the subject of general discussion by the administrative staff. With respect to this aspect of the applicant's case she alleged in the statements of claim:

"It was one of the (applicant's) duties to vet the

prisoners' incoming mail for sexually explicit material. On

numerous occasions the aforementioned (respondent Abbott)

would put his hands on the (applicant's) shoulders and lean

over her and breath (sic) heavily while examining this

material. He would ask the (applicant) 'is there anything

juicy today'. He would only do this while he and the

(applicant) were alone."

"He used to like to read the mail and pick out those that he

knew he'd like to read. (She explained that the respondent

Abbott knew that certain prisoners were more likely to

receive explicit sexual material than others). He'd stand

there and read it or take it to his office and read it."

18. The applicant went on to say that she dreaded the mail coming in. She said that she felt sick and anxious. She said that she was anxious in the presence of the respondent Abbott. The applicant said that often she felt sick by morning tea time and although she did not suffer from headaches at this stage, she "dreaded going to work". The applicant said that her mental health deteriorated more and more between 1987 and 1991. She said for example:

"He used to come in he had a big stomach and he'd say how

would you like this on top of you. He seemed to be doing it

more and more each day and as he did it affected me more and

more."

19. The applicant said that after a time she could not sleep properly. She agreed with the suggestion put to her in cross-examination by counsel for the Attorney-General, "by late 1987 my health had been affected and the continued conduct of the respondent Abbott merely accentuated my ill health."

20. The applicant agreed with counsel for the respondent Abbott, that conversation of a sexual nature and sexual innuendo was common place in the administrative office at Risdon Prison, but the applicant said that it was of a different nature from that directed to her by the respondent Abbott. The applicant said that most of the respondent Abbott's harassment occurred when the two of them were alone and that she did not complain because she thought no one would believe her. I accept that the applicant did not complain until 1991 and I accept her given reason for not doing so. The applicant said that at times of sexual harassment she said to the respondent Abbott:

- "Haven't you got any work to do Ian go away".

- "Why don't you act your age?"

- "I don't like it Ian".

- "I am sick of it Ian".

21. She said that the respondent Abbott's usual response to these observations was laughter.

22. The matter came to a head in this way. The respondent Abbott was a marriage celebrant and apparently would leave work from time to time to perform marriage ceremonies. It appears that Mr Marris got to hear about these absences and asked the applicant to keep a diary note of them. On Friday 15 March 1991, the respondent Abbott went out and asked the applicant not to note the fact in the book. The applicant said that she worried about this all weekend, thinking that compliance with the respondent Abbott's request might put her job in jeopardy. On Monday morning she unburdened herself to Mr Marris about this concern and in response to his question, "is there anything else you want to tell me about Mr Abbott?", she made a complaint of sexual harassment.

23. It is well established law that an application to extend time will not succeed unless the applicant shows that it is just in all the circumstances so to do. Knight v Smith (1975) Tas SR 83; Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423; Klein v Domus Pty Ltd [1963] HCA 54; (1963) 109 CLR 467. Obviously, a material factor in determining whether it would be just to extend time is whether the applicant shows that he or she has a prima facie case. See Wakelin v Comalco Aluminium (Bell Bay) Ltd A69/1975; Marton v Concrete Industries (Tas) Pty Ltd A3/1964. It is of course, trite law that the cause of action of negligence is not complete, and time does not begin to run until:

(a) a duty of care is owed ;

(b) there has been a breach of that duty; and

(c) the breach has caused loss, injury or damage.

24. The proximity between the applicant and the respondent Abbott between 1986 and 1991 was such that undoubtedly, the latter owed the former a duty of care not to expose her to the risk of foreseeable harm by his conduct. The relevant conduct is the matters particularised in the statements of claim the truth of which is sworn to in the applicant's affidavit. With respect to the issue of a breach of the duty of care, there is sufficient material on this application to establish prima facie that it was foreseeable that psychiatric injury may be caused by the conduct set out in the statement of claim. Thus, to answer the first question posed by Mason J (as he then was) in his now famous dictum in Wyong Shire Council v Shirt (1979 - [1980] HCA 12; 1980) 146 CLR 40 at 47, it is arguable that reasonable persons in the position of the respondent Abbott and the respondent Attorney-General would have foreseen that the respondent Abbott's conduct involved a risk of injury to the appellant. Such risk was neither far fetched nor fanciful. To answer his Honour's second question, viz, did either respondent fail to do that which a reasonable person in the position of either would have done, recourse should be had to the dictum at 47 - 48:

"The perception of the reasonable man's response calls for a

consideration of the magnitude of the risk and the degree of

the probability of its occurrence, along with the expense,

difficulty and inconvenience of taking alleviating action

and any other conflicting responsibilities which the

defendant may have."

25. It seems to me that the applicant has either not made out an arguable case that either respondent was in breach of the duty of care each owed her or, if she has, the case is very faint.

26. It must be borne steadfastly in mind that the duty of care in the tort of negligence is not a duty to take reasonable steps to avoid morally reprehensible behaviour, nor is it a duty to take reasonable steps to avoid immoral or annoying conduct. It is a duty to take reasonable steps to avoid the risk of injury. Reprehensible though the respondent Abbott's conduct may have been, neither he nor the Attorney-General were in breach of the duty of care unless it is shown that a reasonable person, situated as each respondent was situated, would have done something that either respondent did not do to avoid injury of the kind suffered by the applicant. A significant factor in assessing what the reasonable person would have done to avoid the foreseeable risk of injury in this case is the likelihood of the occurrence of injury of the type suffered. The risk of occurrence of the relevant injury falls to be considered in the light of the fact that the material conduct occurred in a work place where sexual remarks, sexual innuendo and sexual suggestion were not only common place, but apparently generally perceived to be unobjectionable by those present. Although the applicant told the respondent Abbott, in the manner I have set out, to stop making his sexual remarks, I find on the material before me, that the respondent Abbott believed (albeit erroneously) that the applicant's directions to stop were not made seriously and, more importantly, the applicant knew that Abbott held that belief.

27. The evidence in this case is that sexual jokes, sexual cartoons, conversations of a sexual nature and sexual innuendo were all common in the work place. The applicant said in particular, that one fellow employee passed her slips of paper from time to time with a drawing of a penis on them. This was understood as a joke. The applicant pinned these slips of paper up but Mr Marris told her to pull them down one day. One of the driver's who called into the office on a regular basis frequently said "I've got a joke for you girls" and recounted a sexual story. The sexual references in the prisoners' letters were the subject of general discussion in the office. The respondent Abbott's conduct occurred against this background. The conduct complained of, if established at trial, was clearly inappropriate but as I have said, that is immaterial to the tort of negligence. It is upon the applicant at trial to establish that the respondents failed to act as reasonable persons would have acted, not in response to the impropriety of the conduct, but to the risk of injury being caused by that conduct. On this application the onus is on the applicant to show that she has an arguable case for establishing a breach of duty of care. As I say, at the highest, her case in this respect is faint, for there is scant evidence that could lead to a finding that reasonable persons situated as the respondents were situated, would have perceived the risk of occurrence of injury as other than extremely low.

28. The foregoing demonstrates that common law remedies are not appropriate to deal with sexual harassment cases. Recognition of this has no doubt led to the legislation that has been enacted widely to deal with such cases. Apparently in this State it came too late for the applicant to avail herself of it.

29. With respect to the issue of an arguable case, the applicant has another difficulty in her way. The opinion of Dr Sale that she suffered no psychiatric illness until 1991 is, as he conceded, based on the history given him that the applicant was asymptomatic prior to that time. Dr Sale's opinion was that anxiety is a normal response to stress. Common experience tells us that. Dr Sale said that anxiety does not become a psychiatric symptom until it reaches the stage where it affects the ability to effectively manage work and other day to day affairs. I accept that evidence. When Dr Sale considered the applicant's evidence, put to him in cross-examination, he said that she was clearly anxious prior to 1991 but whether the anxiety had reached an inappropriate level he did not know. If it had of course, then the tort was complete when the applicant's symptoms of anxiety passed an appropriate level and began to seriously affect her daily life.

30. On the hearing of the applications the applicant's evidence was to the effect that anxiety was affecting her daily life well before 1991. It is not clear when this state of affairs was reached. Although the applicant's affidavit does not refer to any anxiety symptoms being suffered prior to 4 July 1991, her oral evidence painted a different picture. The applicant said that between 1987 and 1991 her general health deteriorated more and more. She said that:

- Abbott's presence caused her heart to beat quickly;

- she began to feel tense at work;

- she dreaded going to work;

- she lost weight;

- she felt sick at work; and

- her sleep was adversely affected.

31. The onus is on the applicant to establish that it is arguable that the bringing these actions is not absolutely statute barred. In my view she has failed to discharge this onus in that the evidence does not establish that damage from the relevant conduct did not occur before 24 January 1989 in the case against the Attorney-General, and before 10 November 1989 in the case against the other respondent. It may be that each occurrence of the conduct caused additional injury and therefore each occurrence constituted a separate tort, but neither evidence nor argument addressed this proposition.

32. Finally on the question of prima facie case, the action against the Attorney-General is unlikely to succeed as presently pleaded. There is no evidence of the first particular of negligence and scant evidence of the other particular of negligence. However, I accept that amendment to allege vicarious liability is likely to be granted if time is extended to bring the proceedings against the Attorney-General.

33. With respect to delay, the applicant said that initially she hoped she would get better and return to work. She was receiving workers compensation and not suffering financial loss. She said that she did not seek legal advice because she "was not having any trouble with her workers' compensation". The applicant remained at work after her return in October 1991 until September 1994 by which time she had lost the right to bring proceedings without an order of this Court. She said that she was generally aware of the remedy of damages for negligent conduct, but it did not occur to her that it might apply to the facts of her complaint. Although the applicant said she was aware of a case in which a female employee had brought an action for damages against fellow employees and their employer, the Hobart City Council, she said it was a case of rape and again, it did not occur to her that she might similarly bring an action to recover damages. I accept her evidence about this. She impressed me as being genuine when she gave it. It was not unreasonable for the applicant to be unaware that she might be able to claim damages at common law. A claim for damages arising from a breach of duty of care does not readily spring to the non-legal mind in a case of sexual harassment of the sort alleged in the statements of claim.

34. At a consultation some time in 1994, Dr Sale suggested to the applicant that she should see a solicitor and get legal advice, but he gave no specific reason for doing so other than it would be in her best interests. In about September or October 1994 she consulted her union and, on 10 January 1995, saw a solicitor.

35. I am satisfied that there is a reasonable explanation for the delay up until the applicant saw her solicitor in January 1995. During most of that period she was back at work, her medical bills were being paid and she was in receipt of workers compensation for that part of the period she was off work. Until she saw an official from her Union, she was unaware of any claim she might have for damages at common law. As Wright J said in Lanham v Illingworth and Anor A72/1986 (reported at [1986] TASSC 72; (1986) Tas R 195 but on this point):

"... it seems to me that it would not be unreasonable for a

person with no prior dealings with the law in the field of

negligence to assume that the claim and ensuing payments of

benefits represented her full legal entitlement to

compensation."

36. Although the applicant issued the writ against the Attorney-General immediately after consulting her solicitor, it was not served for some time. The applicant was told that she needed to apply for an extension of time and advised not to serve the writ until the facts had been further investigated. Such advice was, in my view, reasonable in the circumstances of this case. However, matters did not proceed with as much expedition as they might have, although there is a partial explanation for this. The conduct of the file was assumed by the applicant's present solicitor in May 1995. Other than the issue of the writ against the Attorney-General in January 1995, nothing appears to have been done between then and May 1995. There is no explanation for this. In June of that year the applicant's present solicitor spoke with the applicant's psychologist and received advice that the applicant could not cope with recounting the details of the sexual harassment and was in no position to give evidence. At that time the applicant was advised that she had a sound case against the Attorney-General and accordingly gave instructions for the writ to be served. It was served on 21 June 1995. Why it was not then equally apparent that the applicant had a sound case against the respondent Abbott and the writ against him issued at the same time is not explained by the evidence.

37. Illness prevented the applicant from giving detailed instructions to her solicitor until about September 1995. At that time there was a consultation between the applicant's solicitor, the applicant and the applicant's psychologist. The uncontradicted affidavit evidence of the solicitor is that she was unable to take instructions for a statement of claim until 9 October 1995.

38. I am satisfied that illness of the applicant hindered proper preparation of the applicant's case between May and October 1995, but I am not satisfied that such hindrance prevented applications for an extension of time being filed and served by about June of that year when the instructions were given to serve the writ on the Attorney-General. At the least, there was no reason why notice could not have been given at that time to both respondents that it was likely that these applications would be made as soon as the applicant was well enough. The material facts are common to both actions. The applications to extend time were not filed until 31 January 1996, seven months after service of the writ on the Attorney-General.

39. The onus is on the applicant to show that the respondents have not suffered prejudice by reason of the delay. No specific prejudice is claimed, but this is a case where the passage of time alone is likely to cause prejudice. Leaving to one side the question of when the cause of action was complete, the applicant's case is that on a daily basis between 1986 and 1991 now some ten to five years ago the respondent Abbott's conduct caused her harm. The pleaded allegations of that conduct are, in the main, vague, unspecific and unrelated to dates or identifiable events. This is understandable in a claim of sexual harassment such as this, but if the claim is not dealt with in timely manner while the events are fresh in the minds of the witnesses, it makes the respondent's task of meeting them difficult. A request for further particulars delivered on behalf of the Attorney-General remains unanswered. Cross-examination of the applicant produced little further detail of the allegations of harassment that were put to her, other than that they continued on a daily basis. Inability to better particularise a claim is not necessarily fatal to it being prosecuted, but the task of defending such a claim is made more difficult by lack of specificity. This difficulty is exacerbated when the relevant events occurred so long ago. So, in this way, the delay has caused prejudice to both respondents.

40. The relevant statutes impose neither fetter nor guideline on the exercise of the discretion. The proper exercise requires all the circumstances of the case to be taken into account, including whether the applicant has made out a prima facie case, whether there is a reasonable explanation for the delay and whether the respondents have suffered prejudice by reason of that delay. These are all part of the circumstances which must be taken into account as a whole. Having regard to:

- the applicant's failure to establish that the bringing of

actions for damages for negligence is not absolutely statute

barred;

- the failure to make out a prima facie case against either

respondent or at best, to make out only the faintest prima

facie case;

- some, albeit, short period of delay for which the

explanation was not entirely satisfactory;

- the period of delay itself, coupled with the fact that the

applicant's case relies upon events that occurred on a daily

basis between ten and five years ago;

- the prejudice arising from that delay;

41. I am not persuaded that the discretion should be activated in favour of the applicant.