Reeves-Board v Qld Uni of Technology [2001] QSC 314

Supreme Court of Queensland|2001-08-28|Before: Mullins, J

[1] MULLINS J: Queensland University of Technology ("the applicant") is the defendant in the action brought by Ms Deirdre Maree Reeves-Board ("the respondent") claiming damages for the tort of reprisal pursuant to s 43(1) of the Whistleblowers Protection Act 1994 ("the Act"). The applicant applies to have the further amended statement of claim struck out pursuant to r 171(2) of the UCPR or, alternatively, seeks to have those parts of the further amended statement of claim struck out which support a claim for the remedy of damages for personal injuries or, alternatively, insofar as the action for damages for the tort of reprisal is sustainable, seeks to have those parts of the claim struck out which rely on vicarious rather than direct liability.

[2] When the application was filed, the further amended statement of claim also pleaded causes of action for damages for breach of contract, negligence and breach of statutory duty. At the commencement of the hearing of the application counsel for the respondent amended the further amended statement of claim in accordance with the red and blue deletions on the copy of the further amended statement of claim that became Exhibit 2 on the hearing of the application. That had the result of eliminating all causes of action other than the claim for damages for the tort of reprisal.

[3] The applicant employed the respondent as an animal technician within its School of Life Sciences in the Faculty of Science and, more particularly, within the University Research Animal Facility ("URAF"). In this position the respondent claims that she was able to observe the treatment of animals and the conduct of experiments by the applicant's academic staff.

[4] The respondent alleges that at all times the conduct of experiments and the treatment of animals in the URAF was governed by the Australian Code of Practice for the Care and Use Of Animals for Scientific Purposes 1991 ("the Code") in addition to the URAF Manual Procedures ("the Manual").

[5] It is alleged by the respondent that in or about April-May 1997 she observed that Dr Aaskov, a senior lecturer and researcher employed by the applicant, was carrying out experiments on mice within the URAF and that on or about 6 May 1997 the respondent brought what she believed to be deficiencies in Dr Aaskov's compliance with the Code and the Manual to the attention of Dr Allan. Dr Allan was also employed by the applicant and at that time was the respondent's supervisor, manager of the URAF and the University Veterinary Officer. On or about 7 May 1997 the respondent detailed her concerns in a memorandum to Dr Aaskov. On or about 15 May 1997 the respondent informed Professor James Dale, Head of School of Life Sciences, of her concerns.

[6] The respondent alleges that the experiments of Dr Aaskov involved the use of the Japanese encephalitis virus (Australian strain) to which the statement of claim refers as "the JE virus" and the live dengue virus.

[7] The respondent alleges that at the time she made the disclosures she believed that the breaches of the Manual and the Code could pose a substantial and specific danger to the health of persons within the URAF vicinity and to the general public.

[8] Subsequent to these communications the respondent alleges that a meeting was convened at which were present the respondent, Dr Allan, Professor Dale, Dr Aaskov as well as Professor Adrian Herington, a Professor in the School of Life Sciences and the Faculty of Science research ethics adviser, and Ms Sonya Lusan who was the applicant's health and safety manager.

[9] The respondent alleges that she was subject to reprisals from Dr Aaskov in the form of verbal abuse, derogatory comments and unwarranted criticism.

[10] The respondent also alleges in para 20 of the further amended statement of claim further sustained and considerable forms of reprisal which she particularises as follows:

"(a) Professor James Dale and Philip Campbell isolated the Plaintiff from management decisions regarding the URAF.

(b) Professor James Dale and Philip Campbell denied the Plaintiff the opportunity to apply for Professional Development Program Leave in the field of animal science.

(c) Philip Campbell recommended re-deployment of the Plaintiff to an area that she had previously indicated she could not work in due to health reasons.

(d) Philip Campbell withdrew the budget from the URAF without notifying the Plaintiff who was responsible for that budget.

(e) Philip Campbell made derogatory comments about the Plaintiff to a URAF user and fellow workers of the Plaintiff.

(f) Dr Peter Timms and Dr Louise Hafner harassed and threatened the Plaintiff;

(g) Professor James Dale failed to intervene when the Plaintiff reported that Dr Peter Timms and Dr Louise Hafner had harassed and threatened the Plaintiff.

(h) Philip Campbell assigned extra work load on the Plaintiff, in an area other than the URAF, without first establishing the Plaintiff's existing work load.

(i) the Defendant delayed the process by which the Plaintiff could have her position within the URAF re-evaluated.

(j) as a consequence of the said delay the Plaintiff was denied appropriate appointment commensurate with her experience and qualifications.

(k) the Defendant decommissioned the URAF facility and thereby denied the Plaintiff employment within a field of activity consistent with her qualifications.

(l) the Defendant diminished the Plaintiff's qualifications by employing her in a field other than animal science.

(m) Professor Adrian Herington subjected the Plaintiff to harassment which forced her to resign her membership of the University Animal Ethics Committee.

(n) Professor James Dale and Professor Vicki Sara withheld relevant information from external investigation agencies investigating the JE virus experiments which compromised their findings and thereby in turn undermined the Plaintiff's professional reputation."

[11] Mr Philip Campbell was the operations manager for the School of Life Sciences and the respondent's supervisor and manager of the URAF in the period from May 1998 to July 1999. Dr Timms and Dr Hafner were both academics within the School of Life Sciences. Professor Sara was the Dean of the Faculty of Science.

[12] The respondent alleges that as a consequence of these acts of reprisal she suffered detriment in the nature of:

(a) personal injury manifest since February 1999, particularised as an adjustment disorder, which obliged the respondent to seek medical treatment, psychiatric treatment and counselling;

(b) severe and substantial damage to the respondent's professional career, because it is alleged that the respondent has been forced to be re-employed in an area outside the animal science field and that her reputation in the animal science field has been significantly reduced, so that she is unable to seek work consistent with her qualifications;

(c) financial loss, because of being unable to be employed in positions more remunerative than she is presently employed and in the nature of medical and increased domestic expenses.

[13] Paragraph 22 of the further amended statement of claim provides:

"The acts of reprisal referred to in paragraphs 19 and 20 hereof were all acts of the Defendant.

(a) the officers involved in carrying out the acts of reprisal were senior members of the academic and/or administrative staff of the Defendant and as such their acts represented the direct act of the Defendant corporation.

(b) the Defendant was aware of the acts of reprisal and in failing to act to protect the Plaintiff from the continuation of same thereby sanctioned them."

[14] In her claim for relief, the respondent claims damages pursuant to s 43(2) of the Act from the applicant for having committed the statutory tort of reprisal. Those damages are particularised as general damages for pain, suffering and loss of the amenities of life, compensatory damages for economic loss, special damages for out of pocket expenses relating to her personal injuries and exemplary damages.

[15] Leave is sought by the applicant to bring the application pursuant to r 135(1) of the UCPR, as the applicant has not yet filed a notice of intention to defend. That leave is not opposed by the respondent. Although the proceeding was commenced on 14 July 2000, the respondent has amended her statement of claim a number of times and provided extensive particulars in response to three requests for particulars made by the applicant. It is appropriate that the leave be granted to allow the issues which the application raises to be determined at this stage of the proceeding.

[16] The Act provides a scheme that gives special protection to persons who make disclosures about unlawful, negligent or improper public sector conduct or danger to public health or safety or the environment. For the purposes of this application it was not in dispute that the applicant is a public sector entity as defined in paragraph 2 (1)(h) of Schedule 5 of the Act.

[17] The respondent was a public officer, as defined in schedule 6 of the Act, of the applicant and claims to have disclosed information to a superior officer pursuant to ss 17 and 18 of the Act.

[18] Part 5 of the Act provides for the legal privilege, protection and rights of compensation given to a person who makes a public interest disclosure. Section 41 of the Act defines what is a reprisal and what is an unlawful ground for the reprisal:

"41.(1) A person must not cause, or attempt or conspire to cause, detriment to another person because, or in the belief that, anybody has made, or may make, a public interest disclosure.

(2) An attempt to cause detriment includes an attempt to induce a person to cause detriment.

(3) A contravention of subsection (1) is a reprisal or the taking of a reprisal.

(4) A ground mentioned in subsection (1) as the ground for a reprisal is the unlawful ground for the reprisal.

(5) For the contravention to happen, it is sufficient if the unlawful ground is a substantial ground for the act or omission that is the reprisal, even if there is another ground for the act or omission."

[19] Section 42 of the Act makes it an indictable offence for a public officer, being an officer of a public sector entity, to take a reprisal. Section 43 of the Act makes provision for civil claims about reprisal. Section 43 of the Act provides:

"43.(1) A reprisal is a tort and a person who takes a reprisal is liable in damages to anyone who suffers detriment as a result.

(2) Any appropriate remedy that may be granted by a court for a tort may be granted by a court for the taking of a reprisal.

(3) If the claim for the damages goes to trial in the Supreme Court or the District Court, it must be decided by a judge sitting without a jury."

[20] The definition of "detriment" is set out in schedule 6 of the Act as including:

(d) adverse discrimination, disadvantage or adverse treatment about career, profession, employment, trade or business; and

[21] There were three tiers of argument pressed by the applicant:

(1) the further amended statement of claim should be struck out on the basis of Howard v State of Queensland [2000] QCA 223 (9 June 2000);

(2) if the elements of the cause of action for the tort of reprisal are otherwise sustainable, those parts which contend that the remedy is damages for personal injury must be struck out for failure to comply with Pt 5 of the WorkCover Queensland Act 1996 ("WQA");

(3) if the further amended statement of claim is not struck out on the application of Howard, it should be struck out to the extent that it is pleaded that the liability of the applicant is vicarious liability for the acts of its employees.

[22] The respondent seeks to distinguish the application of Howard on the basis that, in the respondent's case, there was a clear line of authority from the deputy vice chancellor of the applicant to each public officer whose conduct is impugned or that each of these officers was relevantly the controlling mind of the applicant when making decisions which affected the respondent.

[23] The respondent disputes that the WQA applies to the tort of reprisal, on the basis that the Act clearly contemplates that damages for personal injury can be pursued in an action for damages for the tort of reprisal, because of the definition of "reprisal". The respondent submits that there is no indication that the WQA was intended to modify the rights granted to an employee to bring an action for damages for the tort of reprisal. The respondent also argues that s 11(2) of the WQA applies to the liability of the applicant for the tort of reprisal, so that the WQA has no application to the action for damages for the tort of reprisal to the extent that damages are sought for personal injury sustained by an employee.

[24] Reference was also made by the respondent to the classic statement in General Steel Industry Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125, 129 that the power to strike out a pleading on a summary basis should be exercised only in plain and obvious cases.

[25] The allegations that were made in Howard were that the appellant was a whistleblower, two fellow employees were guilty of a reprisal against him under s 41 of the Act and the employer was vicariously liable to the appellant for their actions. The nature of the reprisal was that the fellow employees had lodged a complaint with the employer regarding alleged misconduct of the appellant affecting them in their employment. It was alleged that the complaint was made by the fellow employees with the intention of the appellant being subjected to a disciplinary process by the employer. The relevant pleading concludes with the allegation that "in the premises" the employer is vicariously liable for the tort of reprisal committed by the fellow employees. No facts were pleaded to found the allegation of vicarious liability other than the relationship of employment between the fellow employees and the employer. At first instance the employer successfully demurred to the paragraph in the statement of claim setting out the claim for the tort of reprisal against the employer.

[26] There were two questions on the appeal. One was whether the demurrer should be upheld on the ground that on the proper construction of the Act vicarious liability is excluded. The other question was, assuming that the Act leaves vicarious liability open, whether the statement of claim alleges facts capable of establishing such liability against the employer.

[27] The leading judgment in the Court of Appeal is that of Thomas JA with whom the other members of the court agreed. Thomas JA concluded that the demurrer should be upheld and that the appeal should be dismissed. He did so by answering both questions against the appellant.

[28] In respect of the first question, Thomas JA stated at para [11]:

"A clear distinction needs to be maintained between the concept of vicarious liability and that of direct liability by a corporation or a public sector entity for acts which the controlling mind of the corporation or public sector entity causes to be performed. If an officer of the public sector entity with sufficient control over its governing mind had caused such a complaint to be made, the entity, that is to say, the department, would be directly liable for reprisal under s 41 and s 43. There is no allegation here that the department itself committed an offence under these sections. The submission is that two employees committed an offence under s 41 and that the department, by investigating their unlawful complaint became vicariously liable under s 43 for the employee's offence. Direct original liability of the department would arise if it actually instigated the complaint or counselled and procured the bringing of it or otherwise knowingly aided or assisted in the commission of the offence."

[29] Thomas JA referred to authorities such as Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 as suggesting that vicarious liability will not be readily implied in relation to intentional torts of the kind provided for by s 43 of the Act. He also referred to the duty imposed under s 44 of the Act on a public sector entity and stated that s 44 of the Act and "the direct liability of a public sector entity for its own acts" mark the limits of the civil law liability that the Act envisages on the part of a public sector entity. Thomas JA's conclusion in respect of the first question is set out at para [17] as follows:

"In summary the nature of the tort identified in s 43 is such that it may be committed only by the direct acts of a person or corporation and that vicarious liability for the acts of others is excluded."

[30] Thomas JA's conclusion draws the distinction between the pleaded facts that he was considering where there was no conduct alleged against the two fellow employees of the appellant which could be attributed to the employer in any sense and circumstances when an employee's acts which are alleged to amount to reprisal are acts which are the acts of the employer or have been performed with the authority of the employer and are therefore the acts of the employer.

[31] In any case in Howard, the court was able to dispose of the appeal on the basis of the second question that there was an absence of the necessary factual basis in the relevant statement of claim for a finding of vicarious liability, if s 43 of the Act did not exclude vicarious liability of the public sector entity for the acts of others.

[32] The respondent's statement of claim is structured so that the applicant is sought to be held liable on the basis that each act of reprisal relied on can be attributed to the applicant, because of the seniority of the officer involved in the act or the knowledge and approval of various officers of the applicant of an act of reprisal alleged to be carried out by another officer or officers, as particularised in para 15 of the further and better particulars of the further amended statement of claim dated 28 November 2000.

[33] It is obvious that of the 15 acts of reprisal alleged by the respondent against the applicant some are much less likely than others to be able to be ultimately shown to be the acts of the applicant. It is not necessary for the purpose of an application seeking to strike out the pleading to determine the likelihood of success of the respondent in her claims to attribute each of the alleged acts of reprisal to the applicant.

[34] The respondent's pleaded case is distinguishable from that which was considered in Howard. The applicant's first and third arguments cannot be sustained.

[35] In relation to a common law claim for damages arising out of her treatment by the applicant whilst employed as an animal technician, the respondent has sought and obtained a conditional damages certificate pursuant to s 262 of the WQA.

[36] To the extent that the claim for damages for the tort of reprisal seeks to claim damages for personal injury, the applicant relies on the fact that the respondent has not complied with any of the steps stipulated by s 302 of the WQA. It is not in issue that there has not been such compliance. What is in issue is whether such compliance is necessary.

[37] Section 302 of the WQA provides the conditions which must be satisfied before a claimant may start a proceeding in a court for damages. Damages is defined by s 11 of the WQA:

"11.(1) "Damages" is damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker's employer to pay the damages to-

(b) if the injury results in the worker's death-a dependant of the deceased worker.

(2) A reference in subsection (1) to the liability of an employer does not include a liability against which the employer is required to provide under-

(b) a law of another State, the Commonwealth or of another country."

[38] The meaning of injury is found in s 34(1) of the WQA and is defined as "an `injury' is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury".

[39] The facts pleaded by the respondent in the statement of claim must result in the conclusion that, to the extent that she is seeking to recover damages for personal injury for the tort of reprisal, the personal injury arose out of her employment by the applicant and the employment is a significant contributing factor to the injury.

[40] The respondent is relying on the liability she alleges is imposed on the applicant pursuant to the Act to pursue her claim for damages for the tort of reprisal. That is a legal liability in the employer to pay damages to the respondent as the worker which fits within the description in s 11(1) of the WQA.

[41] The exclusion from the application of s 11(1) of the WQA of the liability of an employer which is described in s 11(2) of the WQA does not cover the liability of the applicant under the Act. The liability which is referred to in s 11(2) of the WQA is "a liability against which the employer is required to provide" under another Act or a law of another State, the Commonwealth or another country. The reference to "provide" is a reference to other insurance or similar schemes. If there were any doubt about this, it is resolved by reference to the Explanatory Notes for the WorkCover Queensland Bill 1996. The following was stated in respect of cl 11 of the Bill:

"This clause also states that there is no indemnity for the employer under this legislation if the employer is required to protect against their liability by another Act or a law of another State, the Commonwealth or another country. This prevents `double dipping' by workers who choose where to claim to achieve the better outcome."

[42] Although the Act is remedial legislation, the WQA was enacted subsequently. The provisions of the WQA must be given effect in relation to a cause of action arising under the Act, if that is the effect of the WQA. There is no provision that the respondent can point to which shows an intention of the Legislature to exclude causes of action under the Act from the operation of the WQA.

[43] To the extent that a claim for damages for the tort of reprisal seeks to claim damages for personal injury by an employee from an employer to which the employment was a significant contributing factor, there must be compliance with s 302 of the WQA in relation to the commencement of the proceeding for damages for personal injury.

[44] The applicant is therefore entitled to have an order striking out those parts of the statement of claim which seek to claim damages for personal injury. I therefore order that paragraphs 21(a), 21(c)(ii), 21(c)(iii), 24(a)(A) and 24(a)(C) of the further amended statement of claim which is Exhibit 2 be struck out.

[45] I will hear submissions from the parties on the question of costs of the application.

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