QCSC v Gallagher [1998] QCA 426

Court of Appeal (Qld)|1998-12-18|Before: Jersey CJ, Pincus JA, White J

1 The respondent was employed by the appellant in managerial positions at Lotus Glen Correctional Centre from 4 February 1991 until ceasing active work on 13 January 1994. In the course of that work, he developed a major depressive illness, and sued the appellant for damages for negligence and breach of statutory duty.

2 The respondent's claim for damages rests on a number of fundamental facts as found by the learned trial judge, essentially as follows. The respondent felt that he was pressured by his working environment. From early 1992, that was clear to the appellant, emphasised later that year when the respondent took stress leave. The appellant knew that the respondent attributed the stress to his "work environment". Some aspects which concerned the respondent were canvassed in evidence, and as his Honour found: first, the prison was overcrowded yet understaffed; second, high security prisoners, and one in particular, were sent to the prison without adequate prior preparation or consultation; third, allegations of nepotism and cronyism against the respondent persisted, notwithstanding the withdrawal of an appeal in relation to promotion which had directly raised them; fourth, the appellant denied the respondent access to a report critical of his style of management, called in evidence the "Olsen Report", although the Director-General (Mr Hamburger) proceeded to discuss the matter "constructively" with the respondent; and fifth, the respondent officially pursued the appellant's refusal to release that report to him, and notwithstanding the appellant's assurance that the report would not be placed on the respondent's file or prejudice his position, the respondent remained discontented.

3 To understand what follows, it is useful to provide a little more detail now of his Honour's approach to those major factual issues.

Although the learned judge considered the respondent's claims "overstated and not accurate", he nevertheless found "ample evidence" of overcrowding in the correctional centre. The judge appeared to accept that this may have been a matter beyond the control of the appellant, which is an independent statutory authority, having arisen, to quote his Honour, "from changed social and political circumstances for which effects there was no budgetary allocation". But as he observed, the respondent's case was based "not on what the Government should have done, but on the actions of the (appellant) and its relationship with the (respondent) in those circumstances" - that the appellant failed to take adequate steps to deal with the respondent's stress.

5 The judge also found that staffing was inadequate. He noted, in similar vein, that while that "to some extent, may have been a matter outside the control of the (appellant) there were steps that could have been taken which ought to have been taken to reduce the level of tensions in the managerial staff that this gave rise to".

6 Those factual findings at once highlight a particular feature about this case: the claim in negligence is based on administrative or managerial type decisions made within a bureaucratically based organisation to which the respondent, as employee, voluntarily subjected himself, an organisation subject to budgetary limitations and Government policy. Those features of course do not deny the possibility of a successful claim for damages. It is, however, of some importance, in assessing what follows, to appreciate that framework.

The learned judge found that twenty high security prisoners were sent to the correctional centre before the perimeter fence had been made secure, and that one particularly difficult prisoner was sent there without prior consultation with the respondent who was then acting general manager. The "lack of adequate consultation" was a "contributing factor" to the stress of which the respondent complained, and "despite his request for help none was forthcoming".

This crystallised in an allegation against the respondent made by one Norris in an appeal against another's promotion. The appeal was lodged in June 1992 and withdrawn the following November. The learned judge found that "the allegations and rumours about nepotism and cronyism in the conduct of the (respondent) persisted. He was no doubt aware of such rumour and innuendo. The official line was that the appeal having been discontinued, there was no need to deal with the matter further." As will be noted, the judge found that the rumours continued, and went on to find that despite the respondent's "expressed concerns he received no help from the (appellant) head office".

This report prepared for the Director-General in December 1992 was critical of the respondent's style of management, but ultimately supportive of him, as emerges from this passage:

"Despite the criticisms I've made, we must recognise that management should be given the credit for the prison as it is. Any formal discussions with management could be viewed as a renewal exercise of fine-tuning, to re-align personal viewpoints and ultimately managerial philosophy with the Commission's direction."

10 The report was prepared for the confidential consideration of the appellant. It referred to others as well as to the respondent. The respondent came to know of the report, and sought access to it. The appellant refused to disclose the report to him, but the Director-General took the trouble to meet personally with the respondent. The learned judge found that the respondent exaggerated any perceived threat to his employment involved in the report. The judge noted and appeared to accept that the Director-General reasonably considered his meeting with the respondent to have been "constructive". The judge found however that the action of the appellant in denying the respondent access to the report significantly contributed to the development of the respondent's psychological condition.

Unable to obtain the Olsen report, the respondent instituted a "grievance procedure" on 27 April 1993, following an avenue for departmental redress. This led to the appellant's undertaking not to place the Olsen report on the respondent's file, and that the respondent would not suffer any consequent detriment.

12 Yet the respondent "was not satisfied that he had been fairly treated ... (or that) this issue had ... been laid to rest". His Honour concluded that "the appellant's failure to investigate and resolve the issues raised in this grievance procedure resulted in it remaining a continuing source of stress to the (respondent)".

13 As may be gathered from the above, although apparently mindful of the limitations on the appellant because of budgetary and governmental policy considerations, his Honour considered that aware of the development of stress within the respondent, the appellant should have more positively responded. Indeed, his Honour went on to find the appellant guilty of negligence and breach of statutory duty, and assessed damages in the amount of $470,251.99. The appellant challenged only the findings of negligence and breach of statutory duty. It is necessary to examine closely the path his Honour took towards those conclusions.

14 He began with an uncontroversial statement of an employer's duty of care, drawn from Bankstown Foundry Pty Ltd v. Braistina (1986) 160 C.L.R. 301, 307-8, in turn quoting Hamilton v. Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 C.L.R. 18, 25, "to take reasonable care to avoid exposing the employees to unnecessary risks of injury". Citing Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 C.L.R. 40, 47-8, the judge then raised with relation to the issue of breach of the obviously existing duty of care, "whether a reasonable man in the (appellant's) position would have foreseen that (its) conduct involved a risk of injury to the (respondent)". His Honour said that he had "little difficulty with the issue of foreseeability", and added:

"The plaintiff's anxiety was made obvious to Mr Lane, his immediate superior, in the early part of 1992. In other words he expressly made the defendant aware of his difficulties and that he attributed them to the work environment. The potential development of this anxiety into a full blown psychiatric condition was neither `fanciful or far fetched'."

15 I respectfully identify two deficiencies in that process of reasoning: first, it appears to fail to grapple with the need for a reasonable, objectively based assessment of the foreseeability of injury of some such kind as the respondent suffered, involved in the appellant's conduct; and second, it may assume, as sufficient, that the respondent himself attributed his condition to the problems at work, rather than addressing the existence of causal relationship in fact.

16 As to the former consideration, I have previously referred to the feature that the relevant conduct of the appellant occurred in an environment constrained by governmental policy and budgetary restraint - as indeed his Honour observed. In that context, a number of other points may be drawn from evidence apparently accepted by his Honour. Making these further points involves no challenge to his Honour's factual findings, but may rather set them in a context in which they assume a possibly different significance. One important such other matter was the availability of counselling and other assistance within the appellant's organisation.

17 As to the issues of overcrowding and staff numbers, his Honour stopped short of finding that the appellant was negligent in not reducing the number of prisoners or increasing the number of staff. His finding was that the appellant ought to have taken steps to reduce consequent tension within the staff. His Honour later referred to the appellant's failure to implement "appropriate reviews and training programmes", but without more specific details.

18 He has not, however, recorded that throughout the period of the respondent's active employment by the appellant, the appellant did make available to the respondent both the services of a resident psychologist at Lotus Glen, Darryl Maybury, and a professionally based psychological and psychiatric counselling service called Interlock. The respondent had been referred to Interlock formally, yet refused to utilise its services, on the basis that he was receiving professional attention privately. He had informed the Director-General of this. There is no suggestion of any inadequacy in the services available within or under the auspices of the appellant.

19 His Honour appears to have accepted the evidence of the psychiatrist Dr Mulholland. The tenor of that doctor's evidence was that the provision of such services was reasonably adequate, as may be gathered from the following questions and answers:

"Now I want to assume that you've got a workplace, which is a workplace that is one which is known to be productive of stress such as the prison system. There's no doubt that that's regarded, along with, for instance, the police service, as a stressful occupation. Is that right? --I think it's regarded as - yes, yes ...

Now, doctor, what I was asking you about was the reaction of an employer to a situation in which he has a department which is known to produce stress amongst his employees - and make it a Government department - and he's presented with an employee who appears to be frustrated and disillusioned and so on?-- Yes.

If he had available a service which provided psychiatric and psychological counselling and if that employee was well aware of the existence of that service; and if that service was confidential, that is to say the employee could go to that service and seek assistance from it without the employer even knowing about it, you wouldn't expect an employer to go further than that, would you? ---

What's your answer to that?-- Well, I think that the immediate superior could probably at least encourage the person to seek some assistance. If he's obviously emotionally distressed and it was obvious at work, then I think that employee should speak to the superior - at least encourage him to see somebody, whether it's an in-house organisation or to go privately.

All right, let me add this to it: let's assume that the individual employee knows of the service described, he indicates that he would prefer to see his own general practitioner if he does that? -- Yeah.

What about that situation?-- Well, I think that's fair enough. And I don't think that it's the employer's place to do - sort of impose his or her will upon the employee in that circumstance. If they want to go privately, well that's fine, and I don't think the employer can or should do much about it."

20 The obvious issue is whether allowing for the existence of that counselling facility - to which the learned judge has not expressly referred - a reasonable man would still have foreseen this risk of injury: assessing the prospect of risk should not have ignored the matrix of surrounding circumstances, including the availability of this assistance which, if utilised, may well have forestalled problems of this character.

21 As to nepotism and cronyism, one asks whether a reasonable employer should be required to investigate and stamp out every rumour in the workplace lest failure to do so create risk for the health of the subject employee. These allegations led to the Olsen report and the "grievance procedure" complaint. As to the Olsen report, his Honour's findings appear favourable to the appellant, and their weight should be acknowledged:

" I am prepared to accept that there was a discussion at the conclusion of what Mr. Hamburger considered was a constructive meeting in which he gave expression to the concerns he had prior to his arrival. I am prepared to accept that there may have been as reference to the option of dismissal but I do not accept that this discussion had the level of threat which the plaintiff sought to suggest in his evidence. No doubt the plaintiff's recall of this conversation would be coloured by the fact that he later became aware of the existence of the Olsen report and its adverse comments about him."

Proceeding to the next stage in the progression of this matter, the "grievance procedure" aspect, one notes, from apparently accepted evidence, that the grievance was dealt with promptly (allowing for the respondent's absence overseas), the application and the Olsen report had been treated confidentially, not generally shown about, and the result was a compromise apparently acceptable to both parties. The end point was a personal letter from the Director-General to the respondent as follows:

"I refer to discussions held in the Chairman's office last week in the presence of the Chairman and Commissioner Hayden in relation to your concerns regarding a report prepared by Mr Olsen following his relieving as General Manager at Lotus Glen Correctional Centre.

This letter is to confirm the advice I gave you at the abovementioned meeting that a copy of Mr Olsen's report has not been placed on your personal file. Further, any aspects of the report which concern you have been fully discussed with you at the Conference held in Cairns sometime ago.

As I said to you last week I regarded the meeting at Cairns as the end of the matter insofar as Mr Olsen's report is concerned. I understood that I made this clear to you at that time.

My concern from the time of the Cairns meeting is that you and the other members of the management team at Lotus Glen get on with your jobs to ensure that Lotus Glen runs efficiently and effectively. At the time of my next review I will be considering only matters relating to your performance since the time of the Cairns meeting. I trust that I will hear no more from you concerning Mr Olsen's report."

The prima facie reasonable interpretation of that high level response was that the Olsen report had indeed become a "thing of the past". Yet his Honour went on to add these observations:

"The defendant contended that by receiving assurances from the Director-General, the plaintiff should have let the matter rest and got on with his work. That contention ignores the circumstance that the issues remained `alive' at the workplace.

Whilst the plaintiff agreed in this course being followed, it is clear that he was not satisfied that he had been fairly treated. This continued to be a circumstance which added to the stress which the working conditions was imposing on him. The defendant was well aware this issue had not been laid to rest. This situation persisted until the plaintiff finally ceased working in January, 1994."

22 Having completed this brief recapitulation of those uncontroversial additional factual matters, I return to the initial query: did his Honour grapple with the need for a reasonable, objectively based foreseeability of injury of some such sort as the respondent suffered, involved in the appellant's conduct? To my mind, an objective observer would not see this stress reaction as referable to the appellant's conduct at all, but more likely to an apparently heightened sensitivity in the respondent. There was evidence from Dr Mulholland that the respondent was "inclined to be more sensitive about criticism than the average person", and his Honour found "some rigidity in his personality which would cause him some difficulty in making changes". There was no finding that the respondent bore the burden of abnormal susceptibility, and in any event, whether a duty is owed "must generally depend on a normal standard of susceptibility" (Bourhill v. Young [1942] UKHL 5; [1943] A.C. 92, 110).

23 I find it difficult to accept that an employer, conducting a correctional centre, especially knowing of the availability of counselling and other support services offering adequate psychological and psychiatric care, should reasonably foresee a risk of injury to its managerial staff as involved in the sorts of circumstances found by his Honour in this case. I revert also now to the point made secondly above: it is of course not enough to found a reasonable, objective assessment of risk in these circumstances, that the respondent himself attributed his difficulties to the work environment, if that is what his Honour implied. The relevant consideration is objective, broader. The employee's subjective analysis may bear little if any relevance to the necessary objective determination.

24 But accepting, for argument, the availability of his Honour's finding as to the existence of a duty of care of a breadth sufficient to "catch" these incidents, the next question is whether he could conclude that the appellant breached it.

25 The learned judge expressed his important conclusions on this aspect as follows:

"On the balance of probabilities I am satisfied that the work events which the plaintiff describe as giving rise to stress for him were indeed the factors which led to the onset of his psychiatric condition.

The effects of these events could have been avoided in a number of ways.

I am satisfied that had the defendant heeded the obvious signs of stressful circumstances at the workplace, listened to expressed concerns about the plaintiff's health, and then implemented appropriate reviews and training programmes, it could have significantly reduced the risk of the plaintiff's developing this illness. I find that the defendant was negligent in not taking those steps in these circumstances."

26 Both at trial and before this court, the appellant submitted that the respondent had failed to demonstrate the necessary causal link between any arguable negligence on its part, and the injury suffered by the respondent. The need to establish that link is obvious enough, but it may nevertheless be useful to repeat the words of Vozza v. Tooth & Co Ltd [1964] HCA 29; (1964) 112 C.L.R. 316,319 (quoted more recently in Bankstown, supra, p308):

"For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment."

I set out also what Gibbs CJ said on this subject in Turner v. South Australia (1982) 56 A.L.J.R. 839, 840

"The duty of an employer is to take reasonable care to avoid exposing his employees to unnecessary risk of injury: Hamilton v. Nuroof (Western Australia) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at 25. The employer is not an insurer of his employees against danger. `For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment': Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316 at 319. When the employer does unreasonably fail to take a precaution against danger, the plaintiff cannot succeed unless he satisfies the court that if that precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available: Duyvelshaff v. Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 416-417, 419."

27 One notes the words in those passages, "would have protected ..." and "would probably have been averted". In this case, his Honour did not use the language of probability. He said that adopting certain measures, the appellant "could have significantly reduced" risk to the respondent. One hesitates to reject a judgment on the basis of one word. But as will appear, in my view, there was plainly insufficient ground for a finding of the necessary probability.

28 His Honour endorsed the reasonableness of implementing the recommendations of a report on the management of the correctional centre prepared by the Interlock organisation. The recommendations of that report, which was tendered as an exhibit, are very generally cast, and that may explain his Honour's reference, without particularity, to "appropriate reviews and training programmes". Bearing in mind the respondent's refusal to undergo counselling and receive other assistance from Interlock, notwithstanding the appellant's active encouragement, and his preference to pursue private treatment - which the appellant did not actively discourage, it is difficult to accept the likelihood of the respondent's benefitting from unspecified "appropriate reviews and training programmes", to the point where one could confidently conclude that the appellant's failure to provide them - in addition to the services of Mr Maybury and Interlock - "would probably" have caused (in the sense of directly causing or materially contributing to) the respondent's depressive disorder.

29 There is significance in the absence of psychiatric evidence going to the issue of causation. This case was in that respect similar to Wodrow v. Commonwealth (1993) 45 F.C.R. 52, where Gallop and Ryan JJ pointed out (page 76), referring to McLoughlin v. O'Brian [1982] UKHL 3; [1983] 1 A.C. 410, that Lord Bridge of Hawich suggested:

"... that there were at least two theoretically possible approaches to establishing that the kind of damage suffered by the plaintiff was foreseeable. He said that the first approach is that the judge should receive the evidence of psychiatrists as to the degree of probability that the particular cause would produce the particular effect, and apply to that the appropriate legal test of reasonable foreseeability as the criterion of the defendant's duty of care. The second is that the judge, relying on his own opinion of the operation of the cause and effect of the psychiatric medium, as fairly representative of that of the educated layman, should treat himself as the reasonable man and form his own view from the primary facts whether the proven chain of cause and effect was reasonably foreseeable. He noted that in principle there was much to be said for the first approach."

The question in Wodrow was whether certain Defence Department minutes relating to the employee caused his nervous breakdown. Their Honours continued:

"In this matter there was simply no evidence from psychiatrists of the degree of probability that the issuing of the minutes and the threat of disciplinary action would produce the stress reaction in the plaintiff. In the absence of such evidence a finding that that cause would have that effect was not reasonably open. Furthermore, in our opinion, the ordinary reasonable man would not have foreseen that effect."

30 In the instant case, there was no evidence from the psychiatrists who gave evidence linking any failure on the part of the appellant, a failure, that is, to establish particular systems of counselling and other special care, with the respondent's development of the depressive disorder. The evidence from the psychiatrists and other medical witnesses stopped at a link between the respondent's depression and the workplace generally, (not any breach by the appellant in respect of the workplace system), as may be seen from this passage in the judgment:

"The defendant led no evidence to suggest that the stress developed in the plaintiff because of any factor outside his work environment or that the plaintiff had any susceptibility to psychiatric damage.

Dr Rigano was the first consultant to see the plaintiff after he ceased work in February 1994. Dr Rigano's report states that the plaintiff had ceased work on 30 November 1993 but this is an error based on the date in which the plaintiff resumed receiving Workers' Compensation medical benefits. It follows then that Dr Rigano saw the plaintiff quite soon after he cased work. The plaintiff was then diagnosed as suffering from a Major Depression in partial remission. Dr Rigano's opinion was that `the continued stress of the work environment was the only clear factor indicated in the development of his condition'.

Dr Mulholland, consultant psychiatrist, did not see the plaintiff until 22 September, 1997. He diagnosed the plaintiff as suffering either a Major Depressive episode or a dysthymic disorder. In his report Dr Mulholland said the attribution of these conditions is always difficult, however it appeared to him that the plaintiff was `not able to adjust to, and deal with, the psychosocial dynamics of his workplace such that he has seriously, emotionally de-compensated'.

On 6/7 October, 1997, the plaintiff saw Dr Ian Lynagh, consultant psychologist who similarly assessed the plaintiff as suffering a Major Depressive disorder which he said `appears to have its origins in the extended history of the occupational stress in question (i.e. at Lotus Glen)'.

Ms Sharon Daniels, clinical psychologist, in her report made the same diagnosis and referred to the plaintiff's condition as being `a result of a work related injury'

In oral evidence Dr Mulholland acknowledged that the mood disorder which the plaintiff suffered as a reaction to work conditions was a matter of degree both in quality and quantity of symptoms. In reaching his diagnosis he had to rely on the reports of symptoms and their causes given by the plaintiff. As I have indicated my acceptance of the plaintiff's description of his work conditions and the impact of the various events upon his mental state I accept Dr Mulholland's opinion based on his assumption of those facts. The fact that the plaintiff did not complain to Dr Mulholland specifically of the effect upon him of the allegation of nepotism and cronyism does not cause me to doubt the accuracy of Dr Mulholland's diagnosis. I accept from the description of the work environment set out in his report that he understood most of the work related pressures under which the plaintiff worked. The value of trying to identify the effect of individual incidents was rejected by Dr Rigano in his evidence with his answer (at 286/1) - `Mr Gallagher's case was quite complex and I simply don't think there is any one factor that was responsible for his symptoms'. Further he said (286/15) -

`Going back 4 years ... there were I guess background factors and specific factors and the background factor was the frustrations of dealing with hierarchy which is talked about at some length. As I recall it, he was a middle level executive insofar as he had to deal with coal face work staff and he had to deal with senior managerial staff and had to effect a policy which, to my way of thinking, was laudable in its concept but perhaps difficult or impractical to implement. Now I viewed those sorts of emotional and work related stresses as the main reason why he (de-compensated). Then there were specific factors which I can't list at this stage but would have related to specific instances or dealings with other staff.'

As I have indicated above the defendant does not point to any other circumstances outside work conditions to explain the development of the plaintiff's condition."

31 His Honour found, no doubt in reliance on that evidence, that "the work events which the plaintiff describes as giving rise to stress for him were indeed the factors which led to the onset of his psychiatric condition". His Honour has not, at least expressly, addressed the critical issue: was the appellant's failure to implement the suggested preventive measures the probable cause of that condition? At the most, the judge has found that the appellant's failure to carry out unspecified "appropriate reviews and training programmes", "could" have significantly reduced the risk to the respondent. He has not found doing so would significantly have reduced that risk, nor, with respect, could he have done so on this evidence. The generality of the Interlock report aside, the absence of specific evidence bore here the significance which in Wodrow prevented the plaintiff from recovering. Here no reasonable inference could be drawn sufficient to establish the causal relationship, in the absence of such specific evidence. As I have already highlighted, in view of the respondent's past disinclination to use the services of Interlock, which he was encouraged to use, and about the adequacy of which there was no complaint, how could it confidently be assumed that he would have constructively participated in any such programme or training?

32 Mr Douglas QC, who appeared for the respondent, relied on the following passages from Chappel v. Hart [1998] HCA 55; (1998) 72 A.L.J.R. 1344:

"As Dixon J pointed out in Betts v. Whittingslowe, albeit in relation to a statutory duty, `breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach'." (per Gaudron J, pp 1346-7):

"... the onus of proving that the failure to warn was causally connected with the plaintiff's harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists." (per McHugh J, p 1352)

And pages 1367-8 per Kirby J, quoting Lord Wilberforce in McGhee v. National Coal Board [1973] 1 W.L.R. 1,6:

"The question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his employers cannot positively prove the contrary. In this intermediate case there is an appearance of logic in the view that the pursuer, on whom the onus lies, should fail - a logic which dictated the judgments below. The question is whether we should be satisfied, in factual situations like the present, with this logical approach. In my opinion, there are further considerations of importance. First, it is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause. Secondly, from the evidential point of view, one may ask, why should a man who is able to show that his employer should have taken certain precautions, because without them there is a risk, or an added risk, of injury or disease, and who in fact sustains exactly that injury or disease, have to assume the burden of proving more: namely, that it was the addition to the risk, caused by the breach of duty, which caused or materially contributed to the injury?"

33 Chappel v. Hart was a case where the negligent failure was to warn against the very event which led to the injury. Here the connection between the suggested default on the part of the appellant, and the respondent's depressive disorder, is not readily apparent. It was not, in the words of Dixon J, "of the kind" which might be caused by that particular alleged breach, for the reasons I have previously expressed. Likewise, adopting the words of Lord Wilberforce, this alleged breach of duty did not "involve" an increase in the risk of the development of this disorder - or some such disorder.

34 For these reasons I consider the finding of negligence was not open. The learned judge separately found the appellant to have breached s.9 of the Workplace Health and Safety Act 1995.

"An employer who fails to ensure the health and safety at work of all his employees, save where it is not practicable for him to do so, commits an offence against this Act."

His Honour correctly observed that "the defendant, to avoid the liability imposed by the statute, bears the onus of showing it was not practicable to take steps to avoid the risk ...", referring to Rogers v. Brambles Australia Limited [1998] 1 Qd.R. 212.

36 As that case confirms, section 9 gives rise to a cause of action for damages by a person injured as a result of a breach. It has also been held that the onus of establishing impracticability rests on the employer: Kingshott v. Goodyear Tyre & Rubber Co Australia Ltd (No. 2) (1987) 8 N.S.W.L.R. 707, and Rogers v. Brambles Australia Ltd, supra.

37 But the allegation of breach of statutory duty adds nothing to the strength of the case of a plaintiff in circumstances like these. None of those, or the other decisions to which we were referred, obviates the need to demonstrate a causal link between a plaintiff's condition and the deficiency in the workplace, and that evidence was in this case lacking.

38 I would therefore allow the appeal, set aside the judgment entered in favour of the respondent, and enter judgment for the appellant against the respondent, with costs, of the appeal and the trial, to be taxed.

1 I have read the reasons of the Chief Justice and am in agreement with them, subject to the following observations.

2 The learned primary judge's reasons included numerous criticisms of the way in which the Lotus Glen prison was run; some of these are implicit rather than explicit. I give examples:

"Despite having this information the defendant's response to this identified problem was to impose a recruitment freeze . . .". (16)

"The defendant though aware of the problem took no steps to alleviate the situation for the plaintiff". (16)

"Changes in policy of this kind increased for the managers concerns for their staff as well as the difficulty of having to deal with the tension between them and the staff". (17)

"Apparently discussions were held between Mr Hamburger and Mr Lane but none of this was communicated to the plaintiff who bore the immediate responsibility for the handling of the new inmate and the safety of the centre staff". (18)

"Despite his expressed concerns he received no help from the defendant's head office . . .". (21)

"I accept that the Commission denying the plaintiff access to the Olsen report or to be open with him about its contents was a significant factor in the development of his psychological condition". (23)

". . . the defendant's failure to investigate and resolve the issues raised in this grievance procedure resulted in it remaining a continuing source of stress to the plaintiff". (25)

"Any worthwhile monitoring of the plaintiff's performance would have disclosed that he was under pressure from his work environment". (27)

"In the end result the defendant ignored the [Interlock] report and further aggravated the stressful situation by enforcing even more strict manning policies". (28)

". . . much of the plaintiff's difficulties stem from the failure of Mr Lane to manage". (30)

3 The reasons do not, with respect, make clear what was the ultimate relevance of such findings; in none of the instances I have quoted did the judge say that his criticism was to be treated as a finding of negligence, in the legal sense.

4 The basic management difficulty was, it seems, shortage of space and money; but in addition, the judge thought, there were shortcomings in the behaviour of various people associated with the management of the Lotus Glen prison and these had an adverse effect on the respondent's psychological state. It must commonly occur that the performance of those in managerial positions in organisations is open to criticism, justifiable or otherwise; no doubt managerial mistakes sometimes have an adverse affect on the contentment of those employees affected by them. In my opinion, the wisdom of courts readily accepting that when such a situation arises, those employees of the organisation who appear to have been psychologically stressed by it necessarily have a right of action in tort, is questionable. Courts are ill-equipped to conduct such an inquiry as that in the present case, into the correctness of the reactions of the appellant's managers to the difficulties with which they were faced over a substantial period of time, in the course of their work. Further, it is difficult to ascribe, with confidence, a precise cause to a complaint of stress or stress-related illness.

5 As to the latter point, the judge found that the respondent's psychiatric condition was caused by "the work events which the plaintiff describe (sic) as giving rise to stress for him". That finding amounts to acceptance of the view which a plaintiff would no doubt commonly take, in such a case, that it was solely problems at work which led to his illness; the obstacles a defendant faces in contesting that proposition are evident enough.

6 After making the finding just mentioned, the judge went on to list a number of ways in which the appellant could have avoided "the effects of these events". I incline to think that one might summarize this part of the reasons by saying that his Honour took the view, essentially, that the recommendations in what was called the Interlock Report contained the solution. The judge then said:

"I am satisfied that had the defendant heeded the obvious signs of stressful circumstances at the workplace, listened to expressed concerns about the plaintiff's health, and then implemented appropriate reviews and training programs, it could have significantly reduced the risk of the plaintiff's developing this illness. I find that the defendant was negligent in not taking those steps in these circumstances".

The critical finding is that of negligence in failing to implement "appropriate reviews and training programs". Although the judge in no way expressly identifies what reviews or training programs would have been appropriate, in the context the finding should be read as referring to the recommendations of the Interlock Report. Unless so read, it is difficult to see how it could stand; a bald finding that some unidentified sorts of reviews and training programs should have been undertaken would not be a proper basis for a finding of negligence. But if one proceeds on the basis that it was the recommendations of the Interlock Report to which the judge intended to refer, difficulties for the respondent, to which the appellant's argument drew attention, arise. The author of the Report, Ms Christine Dyer, was not called. It was based on information gathered by Ms Dyer during a mere few days spent at the prison and there was no evidence that the author had any special, or indeed any, expertise in the management of prisons or any other kind of management. Nevertheless, as is pointed out for the appellant, the judge gave great weight to the Report and preferred the assessment it made to that of persons who were called and cross-examined and who had extensive experience in prison management.

7 On the judge's findings, the respondent's stress difficulties began in 1991 and in 1992 he took sick leave because of his psychological condition; he took extended leave in June 1993. The Interlock Report was not produced until July 1993 and it was not released until later in that year; the respondent ceased work altogether in January 1994. To have made a real difference to the outcome, the programs the Report recommends would have had to be implemented with great haste, since the respondent's stress reaction was well entrenched by the time the Report was released, and he left the job a few months later. No doubt seeing this obstacle, the judge remarked about the Report:

"Although the report was not released until later that year [of 1993] I infer that if the defendant's senior managers had taken an interest in that inquiry and followed its progress it would have been made aware of the factors known to be affecting a number of employees".

In other words, the appellant should have become aware of the sources of employee dissatisfaction at the prison and acted to remedy them.

8 Reference to the Report shows that the matters of which employees complained to Ms Dyer were many and various; I instance some only: fear, loss of control, helplessness, rage and anger, difficulty concentrating, burn-out, resentment and anger towards the Commission, changes in the roster system, bad meals, loss of direction by management, being "stood over" by the Commission, confusion and frustration. Dealing with these matters, if they are accurately reported by Ms Dyer, looks on the face of it to be a herculean task. Ms Dyer suggested as remedies: training, personal counselling, alterations of the roster system and menu, better management style, more communication, establishment of a body to hear grievances and more visits by the general manager.

9 We were referred to no evidence that the measures the trial judge favoured would if implemented have resolved the respondent's difficulties; the Chief Justice has discussed the judge's rather tentative finding about this topic. No doubt that would have been a difficult matter to prove; whether institution of reviews and training programs, the absence of which the judge has found to have been both negligent and the cause of the respondent's illness, would have helped much, or at all, would no doubt depend on many factors. These must have included the content of the review and training programs, the funds available to hire trainers, and the expertise and effectiveness of the trainers. Had it been anticipated that the Interlock recommendations might be central to the judge's resolution of the case, one would have expected the matters just mentioned to have been the subject of, perhaps extensive, expert evidence. But as I have pointed out, not even Ms Dyer herself was called.

10 It is not, of course, necessarily an insuperable obstacle to the respondent that the Interlock Report was made by a witness who was not called and whose expertise was not known; but these circumstances must be taken into account in determining whether the judge was right to conclude, as I think his Honour did, that it was failure to implement the Interlock Report which was the core of the appellant's wrongdoing. It is my respectful opinion that on the evidence a conclusion that implementation of the recommendations of the Interlock Report would have warded off the respondent's illness, was not reasonably open; the contrary view appears to me more acceptable.

11 The respondent's counsel argued that the judge was entitled to give the Report such probative value as he thought it was worth; but the appellant is entitled, as part of the appeal process, to question whether there was sufficient proof of the matters to which I have drawn attention. That there were problems at the prison, some of which appear from that Report, cannot be doubted; but what had to be considered is whether failure to implement the Report was not only a management mistake but constituted negligence in law, and causative negligence.

12 The judge also found for the respondent on the basis of breach of statutory duty. The judge's reasons on this aspect, in whole, are as follows:

"I also find that the defendant is in breach of the provisions of s. 9 of the Workplace Health and Safety Act. The defendant, to avoid the liability imposed by the statute, bears the onus of showing it was not practicable to take steps to avoid the risk to which I referred. It has not adduced any evidence to this effect. Rogers v. Brambles Australia Limited (unrep. C.A. No. 189/1995)".

The issues involved in deciding whether a particular measure is "practicable" within the meaning of s. 9 of the Workplace Health and Safety Act 1989 appear from the definition of "practicable" in s. 6 of that Act. The definition requires that one have regard to, among other factors:

"(d) the availability and suitability of ways to prevent, remove or mitigate that injury or harm to health or safety or risk".

In my respectful opinion that and other aspects of the definition were the subject of relevant evidence. The judge has, at least implicitly, come to the view that there were indeed suitable ways to "prevent, remove or mitigate" the risk to the respondent causing him stress. I quote again the critical finding:

"I am satisfied that had the defendant heeded the obvious signs of stressful circumstances at the workplace, listened to expressed concerns about the plaintiff's health, and then implemented appropriate reviews and training programmes, it could have significantly reduced the risk of the plaintiff's developing this illness".

It is repetitive to say so, but I have proceeded on the basis that the reviews and training programs the judge had in mind were those mentioned in the Interlock Report. Because of the considerations I have set out above, it was in my view improbable that implementation of the recommendations of the Report would have proved to be a suitable way to put an end to the, by then established, stress-related difficulties of the respondent.

13 I agree with the orders proposed by the Chief Justice.

1 I agree with the Chief Justice that the learned trial judge's finding of negligence against the appellant cannot stand. This is because, as the Chief Justice has shown, his Honour did not approach the task of identifying whether the respondent's depressive illness was a reasonably foreseeable consequence of the appellant's conduct vis-a-vis the respondent and because there was neither evidence to conclude, and his Honour did not conclude, that any negligent conduct on the part of the appellant caused the respondent's injury.

2 The Chief Justice has set out the relevant issues of fact and law, but since the appeal is to be allowed I will add some concurring observations. The learned trial judge did not find that it was negligent in the appellant to overcrowd and understaff the prison or to place high security prisoners at Lotus Glen rather it was the failure to deal with the respondent's anxiety about these things which constituted the negligence. So too, with respect to the allegations of nepotism and cronyism and the Olsen report. His Honour, relying on the Interlock report of July 1993 into the Lotus Glen prison, concluded that it was negligent not to implement appropriate reviews and training programs to deal with the foreseeable risk of injury to the respondent. His Honour failed to consider the confidential counselling for stress and related problems provided by the appellant for its employees which are not said to be inadequate. The Interlock organisation was readily available to the respondent and known to him. The Lotus Glen prison had a resident psychologist, Mr Maybury, whom the respondent saw in February 1992. Mr Maybury formally referred the respondent to Interlock and, if he did not wish to avail himself of that service, recommended that he should seek advice from his own doctor. This was set out in a document countersigned by the respondent. The respondent said that he preferred to see his own doctor but deferred doing so until ten months later in December 1992.

3 When the respondent met the Director-General and other senior officers of the appellant in January 1993 he was encouraged by them to seek treatment from Interlock. He told them that he was already seeking treatment from his own general practitioner, which was the case.

4 It is difficult to see how a conclusion could be reached in those circumstances that a reasonable employer in the position of the appellant would have foreseen the risk of psychiatric injury to the respondent. The respondent was not, and was not said to be, a person of abnormal sensibility.

5 As to the alleged persistence of the rumours in the workplace after the Norris application was withdrawn, it cannot be said, at least in the circumstances here, that there was any obligation on the appellant to take any particular action to stamp out those rumours. Rumours and gossip are part of every working environment, however undesirable. It cannot be the case that an employer is obliged to investigate and extinguish such rumours as are brought to its attention for fear that an employee may be psychologically injured by them. That is not to say that circumstances would never exist where the presence of rumours, unchecked, might not give rise to a risk of foreseeable injury, and a consequential duty to do something about, it but that was not the case here.

6 The conclusion of his Honour that the Olsen report constituted a circumstance of stress for the respondent failed to have due regard to the respondent's agreement with the Director-General after they had discussed the matter, that it was in the past and would not operate adversely on his employment.

7 As the Chief Justice has set out, the error with respect to causation lay in concluding that the overall management of the prison by the appellant caused the respondent's psychiatric condition without taking the further step of considering whether there was anything which the appellant could reasonably have done which, on the evidence, would demonstrate that more probably than not it would have prevented the respondent's illness.

8 I agree with the orders proposed by the Chief Justice.

Workplace Health and Safety Act 1995

Health and Safety Act 1995

At a glance

Court

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Before

Source

Judgment (118 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (9)