Judgment
Introduction
1Gillian Margaret Sneddon, the plaintiff, was appointed on 12 October 1999 to the position of an Electorate Officer, Grade 2 in the Swansea electorate office. She had been selected for appointment by Milton Orkopolous (the third defendant) who was at that time the member for the State seat of Swansea. The appointment was approved by The Speaker of the Legislative Assembly of the Parliament of New South Wales (the first defendant).
2On 22 February 2008, the plaintiff's employment was terminated by the first defendant. Prior to that time, the third defendant had resigned as the member for Swansea. In March 2008, he was found guilty of criminal offences, including sexual assault of a minor, indecent assault and supplying heroin and cannabis. The third defendant is presently serving a term of imprisonment.
3This case concerns the plaintiff's claim that she was bullied, victimised and harassed whilst she was working in the electorate office and as a consequence suffered psychiatric harm.
The pleadings
4On 11 September 2009, the plaintiff commenced proceedings in this court by way of a statement of claim in which she alleges that from 10 October 2005 to 12 September 2006, she was exposed to a significant degree of stress in the course of her employment at the Swansea electorate office and had also been victimised, bullied and harassed by the third defendant and the servants or agents of the first defendant and the State of New South Wales, the second defendant. She claims that she suffered psychological/psychiatric injury and has been from the 13 September 2006 totally incapacitated for work and in receipt of workers compensation benefits. The plaintiff further pleads that she attended the Swansea electorate office to lodge a workers compensation medical certificate on or about 4 October 2006 but could not enter the office because the locks had been changed and the employees of the first defendant refused to let her in. The plaintiff claims that this incident aggravated her injury.
5The plaintiff's claim against the first defendant is pleaded in negligence, breach of contract and breach of statutory duty. The plaintiff also claims that the first defendant is vicariously liable for the conduct of the third defendant. The claim against the second defendant is pleaded in negligence, breach of statutory duty and vicarious liability for the conduct of the third defendant.
6The plaintiff pleads that the third defendant's conduct in victimising, bullying and harassing the plaintiff constituted assaults upon her and also constituted intentional acts done with intention to cause injury within s 3B(1)(a) of the Civil Liability Act 2002 (the CLA) for which the second defendant is vicariously liable. The plaintiff further pleads that her injury, loss and damage was caused by the victimisation, bullying and harassment by servants and agents of the second defendant and that conduct constituted assaults and intentional acts done with intent to cause injury within s 3B(1)(a) of the CLA.
7The particulars of negligence alleged in the statement of claim against the first and second defendant are as follows:
(a)Permitted, and/or failed to take action to prevent victimisation, bullying and harassment of the plaintiff in the Swansea Electorate Office.
(b)Failed to properly supervise the third defendant in respect of his management of staff employed by the first defendant.
(c)Failed to act on the plaintiff's notification of the allegations made on or about 10 October 2005.
(d)Failed to provide any or adequate support to the plaintiff following her going off work in September 2006.
(e)Failed to provide any or adequate support to the plaintiff in circumstances where the first and/or second defendant knew or ought to have known that the plaintiff was under a significant degree of stress due to work.
(f)Failed to provide any or adequate support to the plaintiff in circumstances where the first and/or second defendant knew or ought to have known that the third defendant was alleged to have committed serious criminal offences.
(g)Failed to properly investigate and take proper action for the protection of electorate officers in circumstances where the first and/or second defendant knew or ought to have known that the third defendant was alleged to have committed serious criminal offences.
(h) Failed to take any or adequate action for the protection of the plaintiff in circumstances where the first and/or second defendant knew or ought to have known that the third defendant was alleged to have committed serious criminal offences.
(i) Prevented the plaintiff from attending her usual workplace to submit a workers compensation medical certificate.
(j) Failed to advise the plaintiff prior to 4 October 2006 that she was not permitted to enter the Swansea Electorate Office.
(k) Failed to appreciate that locking the plaintiff out of the Swansea Electorate Office on or about 4 October 2006 would aggravate her injury.
(l) Failed to appreciate that the termination of the plaintiff's employment on or about 22 February 2008 would aggravate her injury in the circumstances.
(m) Failed to comply with the Occupational Health and Safety Act 2000 and/or Occupational Health and Safety Regulation 2001.
(n) Failed to comply with, adequately supervise and/or enforce the Parliamentary Staff Code of Conduct.
(o) Failed to comply with, adequately supervise and/or enforce the Parliament's Harassment Free Workplace Policy.
(p) Failed to comply with, adequately supervise and/or enforce the Electorate Office Personnel - Workplace Stress Policy.
(q) Failed to comply with, adequately supervise and/or enforce the Parliament's OH&S Policy.
(r) Failed to take reasonable care for the plaintiff's safety.
(s) Failed to provide a safe place of work.
(t) Failed to provide reasonable working conditions.
(u) Failed to provide a proper and safe system of work for electorate officers.
(v) Failed to provide a proper and safe working environment for electorate officers to carry out their duties.
(w) Failed to provide any or adequate training and/or support in respect of the management of stress in the workplace.
(x) Failed to take any or adequate precautions for the safety of the plaintiff.
(y) Failed to warn the plaintiff of the danger to which she was exposed.
(z) Exposed the plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care.
8As against the third defendant, the plaintiff's claim is pleaded in negligence and intentional tort. The third defendant has failed to defend the claim and default judgment was entered against him on 17 January 2011.
9I should mention here that the plaintiff's claim for damages against the second and third defendants includes aggravated and exemplary damages.
10In a defence filed on 21 September 2009, the first defendant admits that he had a general duty to the plaintiff to take reasonable steps to avoid the risk of a reasonably foreseeable injury but denies that a duty of the character alleged is relevant to the proceedings. The first defendant denies that he is vicariously liable for the acts and omissions of the third defendant. Moreover, the first defendant does not admit that the plaintiff was exposed to a significant degree of stress as a result of the conditions of her work, that she was victimised, bullied or harassed or that she thereby suffered psychological/psychiatric injury, loss and damage. The first defendant denies that the plaintiff's injury, loss and damage were caused by the negligence of the first defendant, by breach of contract, or by breach of statutory duty.
11The second defendant, in a defence filed on 6 September 2010, asserts that the proceedings are frivolous and vexatious, or alternatively disclose no reasonable cause of action. The second defendant denies that it is liable in negligence to the plaintiff for supervision of the office or staff, for workplace conditions, for the relationship between the third defendant and his staff, or for the relationship between the first defendant and plaintiff, on the grounds that the plaintiff's contract of employment was with the first defendant. The second defendant asserts that any finding that the State is liable in negligence interferes with the independence of Members of Parliament, the internal workings and privileges of Parliament, and the processes associated with the conduct of business by Parliament. Further and in the alternative, the second defendant says that the plaintiff's claim has a tendency to cause prejudice, embarrassment and delay in proceedings and is an abuse of the court's process, because it does not identify any steps that the second defendant allegedly took, or should have taken in management of the employment of the plaintiff as a servant of the Legislative Assembly in order to prevent the injury, loss and damage allegedly suffered by the plaintiff.
12The second defendant denies that it is vicariously liable for any negligence or intentional tort committed by the third defendant as his employer. If the plaintiff is entitled to damages, interest or costs from the second defendant, then the second defendant pleads s 151Z(2) of the Workers Compensation Act 1987 and asserts that any damages must be adjusted, assessed and apportioned between the first defendant as employer and the second defendant. The second defendant also pleads s 42 of the CLA if it did owe the plaintiff a duty of care distinct from that owed by the first and third defendants.
13The CLA does not apply to the plaintiff's claim against the first defendant (s 3B(1)(f) CLA), nor does the CLA apply to the plaintiff's claim against the second and third defendants in respect of intentional acts done with intent to cause injury (intentional tort): s 3B(1)(a) CLA. Questions of breach of duty, causation, and damages which otherwise arise in the plaintiff's claim against the second and third defendants are governed by the CLA: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 at [27]; Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364. The onus of proof is on the plaintiff on the balance of probabilities.
14The plaintiff was represented by Mr R de Meyrick, the first defendant by Ms S Norton SC with Mr L Reid and the second defendant by Mr G Lindsay SC with Mr C J Sarginson.
A review of the evidence
Background
15The plaintiff was born in March 1957. Between 1972 and 1978 she worked in various clerical positions. The plaintiff married in 1978 and had three sons. Following her separation from her husband in 1992, the plaintiff was a sole parent looking after the children. She completed a TAFE course in office administration and between 1997 and 1999 undertook a Bachelor of Arts degree at the University of Newcastle in sociology and psychology but did not complete it. From about 1993, the plaintiff performed casual work as an electorate officer in other electorate offices and at Swansea. She had worked for Don Beauman, Jill Hall and Bryce Gaudry, all members of State Parliament, before commencing work with the third defendant, who was the member for the State seat of Swansea, in about April 1999 as a Long Term Relief Electorate Officer. The plaintiff was appointed by the third defendant to the position of an Electorate Officer Grade 2 on 12 October 1999 and the appointment was approved by the first defendant on 14 October 1999.
16It is convenient to mention here that an order was made by the New South Wales Governor on 30 April 1952 under s 47 of the Constitution Act 1902 vesting in the Speaker of the Legislative Assembly the power of appointing minor servants of the Legislative Assembly which was gazetted on 9 May 1952: ex 2D1 TB 92.
17The terms of the plaintiff's appointment as an Electorate Officer Grade 2 from 12 October 1999 include the following (ex B TB 45):
"Term of employment: The appointment is for temporary employment and may be terminated by the giving of two weeks notice by either side or upon the end of the term of office held by the Member.
Employment is to the electorate office of Mr Milton Orkopoulos, M. P. only, and does not constitute appointment to the Public Service, the Department of the Legislative Assembly or to other Parliamentary or Public sector employment."
18The position description of an Electorate Officer Grade 2 includes the role objective as being "to support the Member of Parliament to fulfil their parliamentary and constituency responsibilities". Key accountabilities include dealing with problems presented by constituents, building and maintaining effective working relationships with community groups and providing administrative support to the Member of Parliament: ex B TB 46-50. Within the "decision making scope" of a Grade 2 Electorate Officer was the overall responsibility for ensuring that the electorate office ran efficiently and effectively. Whilst electorate officers are employees of the first defendant, they work under the direct supervision and management, and at the pleasure of, the relevant member of the Legislative Assembly.
19The evidence discloses that various policies were introduced by the Clerk of the Legislative Assembly and Clerk of the Parliaments to deal with occupational health and safety issues and workplace stress: ex B TB 73-77. The document entitled OH&S - Policy issued 3 December 2002 relevantly provides that the Clerk of the Legislative Assembly is committed to maintaining "the best standard of occupational health and safety for everyone working at ...the Parliament's workplaces". The policy includes the obligation of all employees regardless of the position held to (ex B TB 77):
"Take responsible care to ensure the health and safety of themselves, and others under the supervision at work, including ensuring that staff are not bullied or subjected to violence.
...
Report and record all incidents (including incidents of violence or bullying)..."
20A policy for preventing and dealing with workplace stress for electorate officer personnel had been issued in March 1998. The policy recognised that electorate offices contained a number of potential stressors. The policy document in its introduction, inter alia, records (ex B TB 73):
"Given the requirement for sustained public contact with limited support, and the nature of the employment relationship between Members and staff, the electorate office work environment places considerable demands on staff."
21The policy aimed to address the prevention of workplace stress and case management of stress which involved early reporting of incidences of workplace stress, provision of appropriate support and medical assessment. The policy emphasised that the prevention of workplace stress was dependent on the early resolution of problems at the workplace and that early identification and intervention were essential to ensure cases of workplace stress were managed effectively. Members and/or electorate staff were encouraged to report any symptoms of workplace stress as soon as possible to Employee Services staff on designated telephone numbers. Staff were assured that "early reporting of workplace stress [would] not prejudice their continued employment": ex B TB 74.
22The Clerk of the Legislative Assembly and the Clerk of the Parliament issued a Harassment Free Workplace Policy in August 2005. The policy made it clear, inter alia, that the Parliament of New South Wales would not tolerate any type of harassment and that harassment that makes the workplace unsafe (including many forms of bullying that are not actually against anti-discrimination law) may be against occupational health and safety law.
23The policy included (ex B TB 70):
"If you are ever harassed and you can't sort it out with the person causing the harassment, you need to let us know about it so that we can sought it out."
24The plaintiff recounted in her evidentiary statement (ex A) that she would interview constituents and attempt to solve community concerns and problems, referring matters to the relevant departments or authorities. She also worked as the second in charge when the third defendant was out of the office and effectively ran the office with the assistance of Vicki Calder, a lower grade electorate officer.
25In around March 2001, Robert Bridge, a constituent, who was upset about an AVO taken out against him by his de facto wife, began attending and regularly telephoning the electorate office. He was aggressive towards the plaintiff who contacted Employee Services at Parliament House and was advised to ask the third defendant to write a letter to Mr Bridge indicating that he was not welcome. The third defendant refused the plaintiff's request to send the letter.
26On 19 August 2002, the plaintiff obtained an apprehended violence order at the Belmont Local Court against Mr Bridge. She experienced no further problem with him from that time until February 2004, when the plaintiff received advice that Mr Bridge had threatened to blow up the Swansea electorate office. During March and April 2004, Mr Bridge came to the electorate office on a number of occasions and the plaintiff became increasingly anxious for her safety. It is unnecessary to detail here all that occurred, which is provided in the statements of the plaintiff (ex B TB 107) and Ms Calder (ex B TB 110). It is sufficient to state that the plaintiff obtained a further apprehended violence order against Mr Bridge at the Toronto Local Court on 4 June 2004. She had in April 2004 consulted her general practitioner, Dr Gillian Fenton, who treated her for anxiety and in July had one consultation with Dr Douglass Wade, psychiatrist. It is evident from the reports of Dr Wade and Dr Fenton that the plaintiff was disappointed as to how she was treated by the third defendant and the local federal member during the difficulties that arose with Mr Bridge. During her oral evidence, the plaintiff explained that even though she had felt very stressed at the time she did not want to go on workers compensation because she "knew what the system was like and ... did not want to put [herself] through it" (T27.2). Nevertheless, she said that she informed her employer that she was feeling stressed because of what had happened with Mr Bridge.
27The email dated 6 May 2004 between Lyndall Davis to Russell Grove (ex B TB 103) discloses that the first defendant was aware that the plaintiff had taken a week off work "as she was so stressed". The email mentions, inter alia, that the plaintiff was "very distressed by the lack of support from her former Member, Jill Hall". There is no reference in the email to the third defendant.
28The email records that Ms Davis informed the plaintiff of counselling that was available and encouraged her to pursue it. It is further evident that the Crown Solicitor's Office, at the request of John Aquilina, the Speaker, provided ex gratia assistance to the plaintiff in defending an application by Mr Bridge for an apprehended violence order and in obtaining the apprehended violence order against him: ex B TB 104-105.
29The first defendant tendered documents relating to various courses that the plaintiff had attended between March 2001 and 8 May 2006 in the course of her employment: ex 1D1. Sessions included "Occupational Health and Safety Issues and Employment Conditions" (March 2001), "Managing Difficult Behaviours Workshop" (May 2001 and February 2002) and "Managing the stress associated with Difficult Behaviours" (June 2005).
30On 9 August 2005, the third defendant became the Minister for Aboriginal Affairs and the Minister Assisting the Premier on Citizenship. The plaintiff stated that the third defendant's promotion increased the workload of the electorate officers. She, however, saw less of the third defendant because he spent more time in Parliament and travelled more.
The events after 10 October 2005
31The genesis of the present proceedings is found in the telephone conversation, which the plaintiff had with 'M' in the course of her employment on 10 October 2005. Ms Calder had taken the call but M had asked for the plaintiff. As to what was said during the conversation, the plaintiff gave the following evidence (T28.17-23):
"A. He told me that Milton sexually abused him since the age of 15. I asked him how old he was, and he said he was 23. He said that Milton was giving him drugs and that he takes drugs, he takes heroin and speed, and that he bribes him with money. He also said that Milton hit him and that his driver had stood over him."
32The plaintiff knew M as "he used to call and come into the office all the time looking for [the third defendant]": ex A par 21. In her oral testimony, the plaintiff said that whist M was speaking, she believed every word he said "because he said it in such a way that it just seemed to be true. But the moment [she] put the phone down, [she] just thought it can't be right ... it [was] not up to [her] to judge": T28.27-29.
33The plaintiff said that she documented the allegation in an exercise book used for phone messages. She identified the handwritten entry in the photocopy of the relevant page: ex B TB 11. The plaintiff soon after wrote what had been alleged in the C onstituent Enquiry Sheet : ex B TB 12. She then showed Ms Calder her note in the exercise book and attempted to contact the third defendant by telephone but left a message. The third defendant returned her call a short time later and she read to him the allegations that had been recorded. He responded with words to the effect (ex A par 24):
"What? What? What? After all I've done for him."
The third defendant, the plaintiff recalled, was "screaming down the phone [and] was outraged": T30.29.
34The plaintiff recounted feeling upset and anxious. She began to feel pain in her chest and to feel sick. Her anxiety increased after she had not heard anything from the third defendant as to what he proposed to do about the matter. On this topic, the plaintiff's evidence included the following (T30.42 - T31.11):
"Q. What was your expectations upon reporting that to the third defendant, in terms of what would happen?
A. As soon as I told Milton, I thought he would give me some explanation of what it was all about rather than just sound angry and outraged on the phone. I thought he would explain it somehow, but he didn't.
Q. At that stage, did you have any concern as to whether or not the matter had been reported?
A. Yes, I did.
Q. What was your concern?
A. Well, I knew I was in I knew that allegations so serious need to be reported. I also know that when it is politics, if I had have immediately said that to the police, there is every chance anyone there that is against Labor, or against Milton, would spread it around, and his career would be destroyed, even if there was no truth in the allegations at all. But I knew that they had to be reported, so I wanted to know that Milton had reported the allegations. I thought that any serious allegations like this, the person who they are about should really report them, but because Milton did not get back to me, that is when I told Bryce Gaudry."
35After about a day and a half, the plaintiff telephoned Bryce Gaudry, the Member for Newcastle, told him about the allegations and sought his advice. Mr Gaudry advised her that he would speak to the third defendant about the matter with a witness.
36The plaintiff said that she was continuing to get pains in her chest and was feeling really anxious. She consulted Dr Suefong, her general practitioner, on 13 October 2005. Dr Suefong's clinical notes for the plaintiff's visit on that day, relevantly, records the following (ex B TB 269):
"Sore throat and diarrhoea for last 2 days and stress at work ++ and son has left home, and may even lose job and need to look at job."
...
"Needs WC for 1 week stress leave."
37Dr Suefong provided the plaintiff with a medical certificate, which certified her as being "totally unfit for ... her occupation owing to pharyngitis and stress" from 13 October 2005 to the 21 October 2005 (ex B TB 116).
38The plaintiff acknowledged that the Application For Leave Form from 13 October 2005 recorded the reason as being "sore throat & Diarrhoea": ex B TB 119. The plaintiff denied in cross-examination that such a reason had been provided because she had decided not to inform her employer that she was off work because of stress. She accepted that her employer could not be expected to divine from the application form that she had stress.
39The third defendant telephoned her on 13 October 2005 and said words to the effect (ex A par 28):
"Sorry darling, I should have told you, Bryce has spoken to me. I reported it to the police and the police have spoken to him. I have sent you some flowers."
40She understood that "Bryce" was Bryce Gaudry, that the third defendant had reported the allegation made by M to the police and the police had already gone to see M about it. She subsequently ascertained from the court transcripts that the Commander of the Lake Macquarie Patrol rang M, warned him off and told him not to go near the third defendant or the electorate office.
41On 14 October 2005, the plaintiff received a telephone call from a co-worker advising that a "smelly bomb" had been left in the electorate office. Upon hearing this, her anxiety worsened and she experienced chest pain.
42When the plaintiff attended the Swansea electorate office on 17 October 2005 to hand in her medical certificate, the other workers in the office barely spoke to her. She said that Ms Calder "seemed icy" which was completely different to Ms Calder's normal behaviour. Upon returning to work, the plaintiff said she was "treated like a traitor" by Ms Calder. There was "no warmth anymore" nor was there "friendly chitchat." Ms Calder told her that she should not have told Bryce Gaudry. She asked Ms Calder what would she have done if M had decided to tell her rather than the plaintiff. Ms Calder agreed that she would have told the third defendant but would not have told anybody else about it nor would she have made a record of the conversation. It was the plaintiff's evidence that she had this conversation with Ms Calder more than once. Ms Calder was an Electorate Officer Grade 1, which was a lower grade than the plaintiff. Vicki Mathieu was one of the casuals who worked in the office. The plaintiff said that her working relationship with Ms Mathieu did not change as much after October 2005 as it did with Ms Calder.
43In her evidentiary statement (ex A) the plaintiff stated at pars 33 and 34, that following her return to work in October 2005, until 12 September 2006, she was exposed to a significant degree of stress in her employment "as a result of the nature and conditions of her work" as an electorate officer. She said that she was "victimised, bullied and harassed by the third defendant". Her relationship with the third defendant and the other electorate officers became extremely strained. She was distressed by the sense that she was ostracised, stigmatised and regarded as a "traitor". She felt unsupported and misunderstood.
44The plaintiff described the third defendant as being very short with her, there was neither warmth nor greetings nor general conversation. His swearing increased. She described an occasion when he put his face about an inch away from hers and said "you believed a drug addict over me". He was "very, very angry" when he said that to her, which was between October 2005 and September 2006. The plaintiff described his voice as being "aggressive", that he spoke "snarlingly" and she felt a "bit frightened": T42.17-23.
45There was also a change in the frequency of the third defendant speaking to her in an aggressive or loud manner and swearing. In her oral testimony the plaintiff said (T42.31-36):
"A. Yes, yes, to me. He'd often just walk into my office, I mean he didn't need to go into my room to get into his room, because he could just walk into his room. He would purposely go past me and he'd just blurt out just comments that weren't called for, as if we had been having a conversation, and I may not have seen him for a week, and all of a sudden he'd say, just blurt something out."
46The third defendant, the plaintiff said, sometimes made personal comments about her dress or body. This conduct occurred more in the period after October 2005. He commented more than once about the size of her breasts which she felt should not have been happening. He also made comments about her appearance. When asked by Mr de Meyrick what comments she remembered the third defendant making about her appearance, the plaintiff responded as follows (T44.3-7):
" Q. You said also about your body. You also mentioned your appearance. What sort of comments do you remember him making about your appearance?
A. Well, I might be dressed nicely, ready to represent Milton at the meeting, and in nice clothes, and he might look at me and say, "Oh, you are looking very yellow today". Like, what sort of comment is that?"
47The plaintiff recounted that when the third defendant rang the office, he would no longer talk to her normally. There was no greeting. He did not ask her to do anything such as dictating letters or getting her to do things. He just said, "put Vicki on, put Vicki on". Her perception was that the third defendant was treating her as if he did not want her in the office any longer and did not trust her. Ms Calder, she said, was being rewarded for her loyalty to him.
48The plaintiff recalled that there seemed to have been in about October 2005 an increased number of, and concern about, violent and drug affected constituents coming into or near the electorate offices. The electorate officers became very concerned about the lack of security, which was of particular concern to the plaintiff because of the threats that had been previously made by Mr Bridge. After the 'smelly bomb' incident, Lyndal Davies of Employee Services at Parliament House contacted the plaintiff on 21 October 2005 and enquired whether there was anything that she could do to make the office safer. The plaintiff suggested to Ms Davies that the office could close during lunchtime, as there usually would be only one person in the office. Whether "Lyndal Davies" is the same person as "Lyndall Davis," the author of the email dated 6 May 2005, was not clarified during the hearing but nothing turns on this distinction.
49During cross-examination by Ms Norton, the plaintiff agreed that she had the opportunity to talk to Ms Davies about any concerns she had for her safety or the safety of other staff members in the telephone conversation but had not mentioned to Ms Davies anything about the harassment or bullying that was taking place. The plaintiff rejected the suggestion by Ms Norton that the reason for this omission was because it was not taking place at the time and the office tension had lasted one month.
50Senior counsel for the first defendant also directed the plaintiff's attention to pars 19 to 23 of the statement that she had made to police on 23 August 2006: (ex B TB 13-16). Paragraph 19 details the conversation with the third defendant, which has been quoted at [33] above. The plaintiff recounts that "later that day [she] received some flowers from Milton and the card said something like, "Thank you for your concern". She recalled at par 21 having a conversation with Bryce Gaudry on the following day and believing that the matter was over and would be dealt with through the proper channels. Paragraphs 22 and 23 of ex B TB 15 are as follows:
"The following week I had off from work sick as the doctor had given me the time off. From the time I got back to work for about a month I felt things were a little bit strained and I felt that I was bypassed in the running of the office. Milton would ring up and he'd ask for Vicki instead of me.
On the 25 th of November 2006 [sic], Milton asked both Vicki and I to go to the White Ribbon Breakfast with him at Newcastle. From then on things seemed to get back to normal in the office and I wasn't bypassed. My relationship with Milton seemed to improve" (italics added).
51The plaintiff rejected Ms Norton's question that the tension in the office was confined to a month and had, after that time, returned to normal. She said it had "never returned to normal" (T89.46).
52On 24 October 2005, the plaintiff placed a sign on the electorate office door indicating that the office was closed at lunchtime. It was the plaintiff's evidence that when the third defendant discovered the sign, he yelled at her and mocked her in front of a constituent. He was very angry and aggressively said words to the effect (ex A par 40):
"What's this notice doing on the window? Take it down!"
When the plaintiff explained that it was placed there following the advice of Employee Services, he angrily replied (ex A par 40):
"Take it down! Whenever you had trouble with Bridge it wasn't at lunchtime. Take it down!"
53Later that day, however, the third defendant told her that she could put the sign up from noon to 1pm. In cross-examination, the plaintiff agreed that even though he did not follow the advice to the letter, she had been successful in being able to close the office when there was only one person present. When asked by Ms Norton (at T100.33-38):
"Q. In any event, whether it was iciness or being avoided, you didn't raise any of those matters with your employer when you were given the opportunity to do so on 21 October 2005?"
she replied:
A. "No. That was 11 days after the event. The freezing issue lasted a lot longer than that. I mean I was off work for, what, seven of the days. There wasn't too much to raise at that point."
54On about 3 November 2005, someone wrote the word "collaborators" all over the walls and windows of the electorate office. The plaintiff recounted that these events "all added to the sense of doom and anxiety felt by [her] in her work at the electorate office": ex A par 42.
55A description was given by the plaintiff as to how she felt in the first half of 2006. She remembered thinking that she seriously could not continue in the job. She was being "frozen out" of the office and was not wanted. Her job in itself was stressful enough but without any support it was made "really difficult". Her moods, her feelings and psychiatric condition had deteriorated from how she was before the allegations. The plaintiff gave evidence that she planned an overseas trip and to sell her house when she returned. Following the sale of her house, she would obtain another job prior to leaving her current position.
56On 13 January 2006, the plaintiff received a subpoena to attend Belmont Local Court regarding a spitting incident by a constituent, which she had witnessed at the electorate office in July 2005. The plaintiff recounts that "the matter was heard on 3 March 2006 and from 6 to 13 March 2006 [she] took sick leave due to her worsening depression": ex A par 43.
57The plaintiff consulted Dr Suefong on 6 March 2006. The clinical notes for that consultation disclose, inter alia, (ex B TB 270):
"Very depressed counselling re: own family and many relationship break-downs, and stress at work and friend who died recently and recent court case. Feels cannot trust anybody. Sleeping poorly and appetite okay. Discussion and counselling and trial 3 to 6 months SSRI."
"Cipramil...20mg 1 Nocte" was prescribed. Dr Suefong noted "needs some work leave, for stress."
58When asked by Mr de Meyrick (at T48.29-33):
"Was there some kind of relationship breakdown you were having a problem with then?"
she replied:
"Yes, because I was stressed from work, and there was nobody to really talk to about it, I was feeling very isolated at work, and it was having an effect on my family life."
59During cross-examination by Ms Norton, the plaintiff agreed that the immediate stressor at the time were the family problems she was having as she had not wanted her ex-husband's new partner to be at her son's wedding. She denied the assertion by Ms Norton that work had settled almost to normal by March 2006.
60Dr Suefong provided the plaintiff with two medical certificates in March 2006. The medical certificate dated 6 March 2006 describes the plaintiff as being totally unfit for her occupation from 6 March 2006 to 10 March 2006 owing to "medical treatment": ex B TB 131. The medical certificate dated 27 March 2006 described her as being totally unfit for her occupation from 22 March 2006 to 31 March 2006 owing to "anxiety/stress": ex B TB 133.
61The plaintiff completed an Application For Leave Form (ex B TB 132) for the period 6 March 2006 to 10 March 2006. The reason stated on the form for the application was "Medical Treatment". The plaintiff denied that she had made a deliberate decision not to inform her employer that the reason she needed five days off work was stress. The plaintiff said that she was "just copying off what the doctor had written": T91.10.
62The clinical notes for the consultation on 27 March 2006 include the following (ex B T 270):
"Feeling better and needs a certificate for last few days and next week.
Has had a bad childhood and now working through this with frienss [sic] and a book".
63The plaintiff agreed when asked by Ms Norton that she must have been feeling better at the time but did not agree that there was no mention of stress at work as work had returned almost to normal.
64It is difficult to understand in light of the clinical notes and the plaintiff's evidence how she could be described in the medical certificate dated 27 March 2006 as being totally unfit for her occupation. In further cross-examination, the plaintiff accepted that the major stressor in March was "the dynamics of the family wedding": T93.16-18. She went overseas on a six-week holiday from 2 June 2006.
65In any event, the plaintiff completed an Application For Leave Form for the period 22 March 2006 to 31 March 2006. The reason for the application was stated in the form to be "medical condition": ex B TB 134.
66During her evidence the plaintiff was asked by Mr de Meyrick to read the second last paragraph of Dr Dinnen's report at ex B TB 225. Included in that paragraph was the following:
"She recalled how MO would come up to put his face close to hers in a threatening fashion, and accuse her of believing drugs addicts over him. On one distressing occasion he told her that her son had also been involved in underaged sex (she told me her son had known him since he was five years old). She only found out in the trial, and on one occasion while she was overseas MO had come to the house and taken her son to the garage and given him marijuana."
67The plaintiff's evidence on this paragraph in Dr Dinnen's report was as follows (T45.26-50 - T46.1-11):
" Q. The entire paragraph there, that is a true reflection of events that happened as you have described them to Dr Dinnen?
A. Yes, except he even had his driver stand at my office door, and he was saying it in a really loud voice, and he kept repeating it over and over and over again.
Q. You see there it mentions you going overseas; was that in July 2006?
A. June/July.
Q. You took a break from work and had a few weeks going back to England?
A. I went around Europe for six weeks, yes.
Q. You found out later, but not at the time, that after you were aware, that Mr Orkopoulos had some contact with your son?
A. He had been to my house, yes.
Q. How old was your son, then?
A. He had just turned 18.
Q. I take it, then, that the conversation that you related to Dr Dinnen, about what Mr Orkopoulos said to you about your son, must have occurred after you got back from that holiday but before you went off work on 13 September, is that a reasonable assumption?
A. Yes.
Q. Does that accord with your recollection?
A. Yes.
Q. You have told us that he said that to you and he said it repeatedly. In your mind, what do you think he was trying to achieve by saying that to you?
A. He was obviously saying, especially because his driver was there, he is saying it like, "she won't dare be a witness against me" because he was threatening me with that knowledge. I don't believe it would be true anyway, but still even something like that, even it is said in the papers, or anywhere, that could ruin somebody's life, and I would not want anything like that said about anybody that I love."
68The plaintiff recalled that on 7 August 2006, she saw the third defendant "marching around the Swansea electorate office holding an envelope" that had been put under the door. He waived it around and said words to the effect:
"Gillian, Vicki, read this!"
69The envelope contained statutory declarations setting out what the plaintiff described as "further serious allegations against the third defendant: that he had been waiting by the Caves Beach toilets for young boys to have sex with": ex A par 46. The plaintiff, at the third defendant's request, faxed copies of the statutory declarations to Commander Clarke of Lake Macquarie police and to Carl Scully, then Police Minister.
70Police interviewed the plaintiff four days later about the allegations and she gave them the Constituent Enquiry Sheet on 14 August 2006.
71On 18 August 2006, the third defendant was interviewed by police in the back room of the electorate office. Whilst this interview was taking place, a young man "T" came into the office to see the third defendant, but was advised by Ms Calder to wait in the park across the road.
72The plaintiff recounted that on about 23 August 2006, she was due to attend the police station to give a statement. "B", a young man working in the office on work experience, asked to read what was written in the exercise book, which she had with her to take to police. After that material was shown to him, B told her that he was being "groomed" by the third defendant. He said words to the following effect (ex A par 49):
"I think he's grooming me. He's told me about his homosexual exploits in the electorate office ... I once walked in the office on a Saturday and saw a man pulling his pants up."
73According to the plaintiff, when she told Ms Calder of these allegations, Ms Calder placed her hands over her ears and yelled at her saying (ex A par 49):
"Don't tell me anything about my boss! I don't want to hear anything about my boss!"
74The plaintiff considered the picture of Ms Calder covering her ears and turning her head from side to side as being disgraceful.
75The plaintiff stated that Ms Calder's response increased her sense of isolation. She experienced chest pains and increasing anxiety on 25 August 2006 and took the day off.
76Dr Suefong's clinical notes record that the reason for the consultation on 23 August 2006 was "contraception". Notwithstanding the stated reason the notes disclose, inter alia, (ex B TB 271):
"Recurrent problems at work with boss accused, and now stressed and poor sleep and chest pains. Pt feels better that [sic] has reported and hopes can sleep better."
77The plaintiff's leave application records the reason for the application for leave on 25 August 2006 as being "chest pains": ex B TB 136.
78On 11 September 2006, the plaintiff contacted Employee Services at Parliament House and spoke to Michael Saunders, the Return to Work Co-ordinator and Injury Manager. The plaintiff stated that she advised Mr Saunders of the stress, anxiety and chest pains she had been experiencing as the result of stress at work. She told him that police wanted statements regarding allegations against the third defendant. In cross-examination by Ms Norton, the plaintiff agreed that this was the first time she had approached anyone who was involved with her employer to inform them of the matter. She was by that time already feeling unwell. When asked to consider Mr Saunders' file note of the conversation (ex B TB 137), the plaintiff considered the file note was not accurate. She said (T101.16-19):
"A. No, it isn't accurate of what happened because the part about the Bryce Gaudry issue, they've brought that up because that was being raised in parliament. That wasn't from me mentioning much about the Bryce Gaudry issue at all."
79In later cross-examination, she was not as adamant that what was written was untrue. She conceded that she had been unhappy about what was happening to Mr Gaudry and she had written a letter to the paper.
80The plaintiff recalled that Russell Grove, the Clerk of the Legislative Assembly, rang the electorate office at about 5.25pm on the same day as she had rung Mr Grove. The telephone call to Mr Saunders was made at about mid-morning. She was requested to put the call from Mr Grove through to the third defendant, which she did. The plaintiff stated that (ex A par 53):
"[she] was immediately very frightened as it had became [sic] apparent to her that Mr Saunders had passed on what she had told him about the Police investigation. Mr Grove had never previously rung the office to the plaintiff's knowledge. As a result of this call the plaintiff cancelled an appointment which had been arranged with Parliament's counsellor as she felt she could no longer trust Parliament."
81The plaintiff accepted in cross-examination that she did not over-hear the conversation nor did she have first hand knowledge of the contents of it.
82On 12 September 2006, the plaintiff, the third defendant and others attended the local ALP branch meeting. The plaintiff said that she had been rung up and asked to attend because they did not have a quorum. The plaintiff stated that "the third defendant launched an angry attack upon [her] in respect of her support for Bryce Gaudry, the then member for Newcastle who had lost pre-selection": ex A par 54. It was the plaintiff's view that Mr Gaudry's loss of pre-selection was connected with her having confided in him about the allegations in 2005. The plaintiff described the third defendant as being really angry with her. She said that after the third defendant had become so angry with her at the branch meeting, she did not go back to work and had been totally incapacitated for work from 13 September 2006. The previous day ended up being the last day she actively worked (T53.41-44):
"...because Milton got really angry with me, so much so I would have thought he would have smoke coming out of his ears. He was asking me do I want him to resign as a Minister of the Crown, and he was throwing his resignation in the air."
83In the weeks that followed 12 September 2006, the plaintiff continued to speak to police. She recalled telling the police when they first spoke to her at the electorate office that she had some documentation that she could show them including about the third defendant giving money. The police officer indicated to her that she did not want the documentation at that moment but would need to see them "down the track": T54.9-10.
84The plaintiff gave evidence that after 12 September 2006 all the information she had for the police was still in the office and that by the time the police went in to get it, it would be gone. She said (at T54.16-22):
" I knew by then that the police had told me that they were actually investigating that matter, but they were pretending to Milton that they were investigating the statutory declaration that came under the door. The minute Milton got that call from Russell Grove, he knew the direction of the investigation had changed, that it wasn't what Milton was being led to believe, that it was just an old statutory declaration saying you hang around toilets, it wasn't that that was being investigated, it was the 2010 allegations."
85It was the plaintiff's testimony that she knew that the third defendant was lying to her, that what he was saying about when he had first met M did not match up with her records. She said (T54.41-43):
"I knew it would be Milton's word against somebody who had become addicted to drugs. So I felt it was my duty to give the police copies of those documents."
86There was more than one occasion that she went back into the office to photocopy her records. On this topic, the plaintiff gave the following evidence (T54.45-50 - T55.1-28):
"Q. These occasions, there was more than one of them, was there, when you came back into the office to photocopy your records from the office?
A. Well I got my telephone message books the first time. The second time, then I realised I didn't have them all, so I went back to get the second bundle. Then the third time I knew that Milton had handwritten instructions of me to give money, that he had given money to M. He had given money to him, and he might have written for electricity bill or whatever it was. So I took those envelopes home, took out the ones that had his instructions to that particular person on, and then I went back another time with the envelopes and I put them back into my drawer. That's when I was accosted by Vicki Mathieu, the casual that was filling in while I was off.
Q. Can you tell us about what happened and what the exchange was with Vicki Mathieu?
A. She said, she demanded of me, "What are you doing?" I mean it was my job and she was filling in while I was there, but that's how she spoke to me. I said I had to check something for the police. She said in a really frantic voice, "Think about Milton. Think about Annie. Think about Kathy. What if Milton commits suicide?" As if it would be my fault if Milton committed suicide. I said, "If Milton has done nothing wrong, then he has nothing to fear." Then she said, "Oh, so we are sitting on a time bomb then, are we?" I said, "You could say that. Speaking of time, it is 5 clock, time you all went home", and off I went. That was it. Nobody ever saw me take a document from the office, they only just saw me putting those envelopes back.
Q. That was some time in perhaps the second half of September 2006?
A. Yes.
Q. After you had stopped working with a WorkCover certificate at that stage?
A. Yes.
Q. But before the incident you describe in paragraph 64 which you say occurred on 4 October 2006, is that right?
A. That's the date that I found out that I was locked out of the office."
87The significance of the office records should be stated. The plaintiff knew that the telephone message books contained entries that had M's name on it earlier than 2002/2003 which was the time that the third defendant had informed her that he had met M: ex B TB 18. The plaintiff took the telephone message books from the electorate office during two visits to the office between 13 September and 19 September 2006 and handed them to Detective Radmore on 20 September 2006. She also photocopied the petty cash books which recorded payments made by the Member for Swansea to M and his partner between 5 May 2003 and June 2005 and handed them to the police officer: ex B TB 18-19.
88During cross-examination, the plaintiff said that she had attended the office on 14 and 19 September to collect her telephone message books and to photocopy some documents. She accepted that the telephone message books were not hers but belonged to the office. She wanted to give them to police but agreed the police had not asked her to collect them. When she obtained the books, she rang the police who, she said, came to collect them. All she took were "her own telephone message books" because she knew that they would show the date that the third defendant "had been contacting the boy and also the receipts to show that [the third defendant] had given the boy money": T104.40-42.
89The plaintiff attended the Swansea electorate office on 4 October 2006 to lodge a workers compensation medical certificate. She said that she was unable to enter the office as her key no longer worked. She called out to Vicki Calder, who was working inside with words to the effect (ex A par 64):
"My key doesn't seem to be working. Could someone open the door for me?"
90She said that Vicki Calder just glared at her and said nothing. Eventually Ms Mathieu "marched out" of the plaintiff's old office and responded with words to the effect (ex A par 64):
"No! You can't come in ... the locks have been changed and you're not allowed in!".
91The plaintiff said that this increased her sense of isolation and the feeling that she was being treated like a "traitor" by her colleagues. She felt her legs go from under her. She considered that her career was over. She felt utterly betrayed and very let down by Parliament. She described the "locking-out" as "the final straw".
92When she returned home, she heard a message on her answering machine from Elaine Schofield to ring her back. She did not return the call but asked a member of Mr Gaudry's staff to ring Ms Schofield on her behalf, because she felt "too vulnerable": T109.43.
93Later in October 2006, the plaintiff was removed from the third defendant's "List of Staff" and her belongings and papers were packed up. When the plaintiff spoke to Leesa Warren, a relief officer, Ms Warren said words to the effect (ex A par 66):
"I'm no longer allowed to speak to you".
94The plaintiff testified that she had concerns for her safety because of the third defendant's behaviour towards her. She said that the more she saw that the police had a case and that the third defendant had lied to her and Bruce Gaudry, she began to feel that the third defendant may get somebody to harm her or even harm her family. The plaintiff, however, agreed in cross-examination that neither the third defendant nor anybody else in the electorate office had made any verbal or written threats to her.
95When she was advised in November 2006 that the third defendant had been arrested, the plaintiff said that nothing changed for her, that she was full of anxiety and depression. Michael Saunders would ring her occasionally but had nothing to offer her nor did she have rehabilitation. The plaintiff agreed that Mr Saunders had contacted her quite frequently after she had lodged her workers compensation claim and was always courteous. She said, however, that he did not provide assistance and denied that he had contacted her to talk about the possibility of working at another office.
96On 13 November 2006, Michael Saunders telephoned the plaintiff to advise her that the workers compensation claim was accepted. He also advised that she would be made redundant in March 2007 after the election. Notwithstanding this indication, the first defendant did not terminate the plaintiff's employment until 22 February 2008, which was the day that the plaintiff was to give evidence in the criminal trial of the third defendant. She has not subsequently been employed.
97On 14 November 2006, the plaintiff consulted Dr Alexander Murray, a psychiatrist who diagnosed major depression, panic disorder with agoraphobia and generalised anxiety disorder. The plaintiff commenced consulting the psychiatrist on a regular basis. According to Dr Murray, the plaintiff consulted him on eight occasions between 14 November 2006 and 15 March 2007 (ex B TB 288). As will become apparent later on in this judgment, the plaintiff has not sought her treating psychiatrist's assistance for some time.
98The plaintiff was admitted to the Lakeside Clinic, Warners Bay Private Hospital on 8 October 2007 due to an exacerbation of her depressive illness. She remained in the clinic for five weeks. The plaintiff recounted that prior to the admission, she had lost the will to live and had gone from being worried that she would be killed. She described feeling better after her discharge from the clinic but still had depression. She was, however, determined to fight back and has been fighting back ever since. The plaintiff described herself as being "a victim of Milton Orkopolous, a victim of the New South Wales Parliament, and [as] being persecuted by the system": T63.43-44.
99I do not detail here all of the clinical notes of Dr Suefong. I note that the latest clinical notes provided in ex B were for a consultation on 23 March 2010. I accept, however, that the plaintiff has continued to consult her general practitioner since that time.
100Vicki Calder, the plaintiff said, had been promoted to her position and Vicki Mathieu, the casual, had been promoted to Ms Calder's position. The plaintiff described a meeting with the then Member for Swansea, Robert Coombs, who visited her home "maybe a year or more ago": T70.25. The plaintiff recalled Mr Coombs saying to her "Do you want money or do you want a job?" and she saying, "I'll have my job back". Mr Coombs responded, "Well, you can't have it back": T71 27-30. Mr Coombs had told her that Sussex Street ALP, the head office, told him not to employ any of them but he thought he was being "the good guy by keeping the two Vickies on": T61.24-26. The plaintiff accepted that she had been working for the third defendant and if he was not re-elected, she may not have had a job in the electorate office after that. She agreed that if the third defendant resigned, it was up to whoever came after him to decide her future in the electorate office. She said that "no Labor Member of Parliament would ever want to employ [her] because [she] showed disloyalty to the Labor Party by speaking the truth and helping put [the third defendant] in gaol": T72.24-26.
The evidence of Michael Saunders
101Michael Saunders, the Return to Work Coordinator/Injury Management Officer, in the employ of the first defendant, was called to give evidence in the first defendant's case. His evidentiary statement is found in ex 1D2 TB 111. Mr Saunders recalled that the plaintiff telephoned him on 11 September 2006, reporting that she was suffering from stress, anxiety and chest pains "as a result of her office situation": ex 1D2 TB 111. She sought advice about taking leave from work and about lodging a workers compensation claim.
102The plaintiff had reported absences on sick leave prior to that date, Mr Saunders recounted, but none of these absences were reported as being related to the matters the subject of the present claim.
103According to Mr Saunders, the plaintiff said in the telephone conversation that she had recently sent a letter to the editor of a local newspaper supporting Bryce Gaudry and the third defendant was unhappy that she had shown that support. She also made a passing comment that she felt compelled to inform Mr Gaudry about a matter that also involved the third defendant, but she did not expand on the nature of that matter. Mr Saunders described the plaintiff as being highly anxious at the time and also stating that there was a police investigation into the third defendant. Mr Saunders stated that he referred the plaintiff to the Employer Assist Program and suggested that she needed to consult her doctor if she was to take time off work and believed it was work related. The plaintiff confirmed that she would see her doctor on 14 September 2006. Mr Saunders made a file note of the conversation: ex 1D2 TB 115; ex B TB 137. Without detailing here all of its contents there appears, inter alia, in the file note the following entry:
"[The plaintiff] has been approached by the police a second time to provide a statement regarding allegations about the Member for Swansea. She was told by the Police not to inform the Members (sic) of the current investigation."
104Following the telephone call Mr Saunders spoke with Elaine Schofield, Manager, Employee and Corporate Services, and Russell Grove, the Clerk of the Legislative Assembly. As the plaintiff was reporting what was, in her opinion, a work related injury, Mr Saunders considered it was necessary to pass on the details of a pending workers compensation claim to them. He first spoke to Ms Schofield who then accompanied him into Mr Grove's office. On the topic of what was said in Mr Grove's office, Mr Saunders testified (T129.26-29):
"I referred to Gillian's claim that she had suffered work related stress and anxiety due to the situation in her office and obviously I ran through the details of what she had relayed to me regarding what she believed at the time were the cause of those injuries."
He said that he had related to them everything that was in the file note and nothing more.
105There was no discussion about informing the third defendant of the plaintiff's claim nor the background or reasons for it. Mr Saunders said that Mr Grove did not mention that he intended to ring the third defendant.
106On 14 September 2006, the plaintiff advised him in a telephone conversation that she had been certified as unfit and would forward a WorkCover medical certificate. The certificate was received on 21 September 2006: ex 1D2 TB 116. The certificate, which was issued by Dr Suefong, noted the date of the injury as being 10 October 2005 and made reference to "Allegations regarding sexual assault from a constituent against State Member - Milton Orkopoulos".
107Mr Saunders stated that he did not at that point notice the October 2005 injury date but subsequently became aware of it in correspondence from the insurer. Prior to that time, he believed that "the background to the claim related to the Gaudry incident". Mr Saunders went back through the Injury Register and could find no record of any event involving the plaintiff on 10 October 2005.
108The plaintiff was rung by Mr Saunders on 19 September 2006. Mr Saunders recounted that in that conversation she told him "off the record, I have been advised by police not to disclose information to anyone due to the ongoing investigation". He assumed then that it was related to the third defendant. According to Mr Saunders, the plaintiff then said (ex 1D2 TB 112 par 14):
"I have the need to detail some of the events that have led to my injury as I believe I am being treated like a traitor and am fabricating these accusations against the Member. I feel isolated and alienated from work colleagues and social network as a result of my involvement in the police investigation."
109Mr Saunders recalled that the plaintiff spoke of a lack of support from the third defendant and Ms Calder. The plaintiff for the first time identified the origin of the events as being October 2005. She went on to comment about the nature of the allegations made against the third defendant. Mr Saunders observed that "this was the first occasion that the nature or details of the allegations were indicated to this office": ex 1D2 TB 113 par 17. The plaintiff continued, Mr Saunders recounted, to comment "this is off the record" but he did not know what extent of the allegations were the subject of police investigation. Mr Saunders was also of the view that as matters had been reported to police and as they were apparently investigating them, that it was not the role of his office to conduct any inquiries into the allegations. Mr Saunders' note of the conversation is found at ex B TB 140.
110Mr Saunders did, however, advise Ms Schofield of the contents of the conversation. As the plaintiff had indicated to him that "this is off the record", Mr Saunders said that he felt compelled to report the full contents of it to Ms Schofield. He related that the plaintiff in a telephone conversation with him on 5 October 2006, raised the concern that the locks of the electorate office were changed and she could not gain access. Mr Saunders understood that the locks had been changed at the request of the third defendant who claimed that the plaintiff had been attending the electorate office and taking or copying the third defendant's paperwork.
111In the Briefing Note dated 20 March 2008 to the Speaker, the following entries which were prepared by Ms Schofield appear (ex B TB 157-158):
"ES - 28 September 2006 - [the third defendant] telephoned Ms Elaine Schofield, Manager, Employee and Corporate Services to discuss his concerns with a report he had received that Ms Sneddon was accessing the office records and both removing documents and copying documents. He sought advice on what action we could take to prevent this.
Ms Schofield provided advice as to; that records in an Electorate office are the private records of and property of the member. He could decide who had access to the records as his private records.
Discussed options to restrict Gillian Sneddon's access, including Legislative Assembly staff talking to Ms Sneddon, advising the other Electorate staff of the restrictions placed on Gillian's access to the office records and asking them to supervise Gillian's access to the office.
As Ms Sneddon has 24 hour / 7 day a week access to the office it was felt that asking the other electorate office to enforce the restriction during office hours would not be effective. The option of changing the locks on the office access was the preferred option agreed by the Member.
The Clerk of the Legislative Assembly authorised the action to change the locks to the office, on advice from Ms Schofield.
ES - 28 September 2006 Ms Schofield contacted the other EO staff and advised them of the decision. Staff also advised that Gillian should have access to the office and given every assistance in relation to her workers compensation claim and return to work. Not to have access to the office records, to remove or copy.
ES - 29 September 2006. The locks were changed at the office.
ES - Ms Schofield tried to contact Ms Sneddon to advice [sic] her of the decision to change the locks (possible dates were 3 and 4 October 06) and her ability to access the office but not to access or copy records in the office. - two messages left on her home telephone for Ms Sneddon to contact Ms Schofield. Ms Sneddon did not return the call before she tried to access the office again and was informed that the locks had been changed by EO staff."
The plaintiff's evidence of her present medical condition
112In her evidentiary statement the plaintiff complained that she constantly felt anxious and angry. Her heart felt like it raced. She could not concentrate as well as before. She had stopped reading novels and referred to her forgetfulness and to her mind drifting back to the events at the Swansea electorate office. She had lost friends and found it difficult to be interested in anything but this case and the electorate office. She felt down and depressed all the time, often drank a bottle of wine at night by herself, sometimes spirits or brandy to calm herself down so she could sleep. She relied on the assistance of friends and family to look after her home.
113During her oral testimony, it became plain that the plaintiff's present position was not as dire as that described in the evidentiary statement.
114The plaintiff was taken by Mr de Meyrick in her evidence in chief to the Medical Assessment Certificate (MAC) issued by Dr Gregory Paul Steele following upon an assessment on 3 June 2008: ex B TB 263-264. She confirmed that what was detailed in the MAC were "the kind of problems and symptoms" that she was experiencing at the time: T60.5-6. Included in the MAC were the following:
"Concentration, persistence... During the consultation [the
and pace plaintiff] frequently lost the tread [sic] of what she was talking about. She no longer reads, forgets appointments and is unable to watch television because she loses the thread of what is happening.
Employability ... [The plaintiff's] lack of energy, impaired concentration, and reduced motivation would interfere with her obtaining and retaining work."
115As to her present medical condition, the plaintiff testified that she had come a long way since November. She can concentrate a lot more now, is clawing back and wants to be able to get a job again. She had decided to run as an independent candidate at the last State election for the seat of Swansea. She currently takes Avanza at night and in the morning takes Avexol. Avanza is an antidepressant with a sedative in it. She said that she is unable to sleep without it, even now. The last time she had tried to reduce those medications, the plaintiff said that she had ended up in hospital. She was improving in her consumption of alcohol and in the area of requiring assistance for jobs around the house.
116When asked by Mr de Meyrick whether she is still seeing Dr Murray, the plaintiff said she had not been back to him for quite a while. She had not felt the need to see him but had been given scripts by him that had permitted her to obtain medication. When cross-examined by Ms Norton, the plaintiff was unsure as to when she had last seen Dr Murray and whether any medications she was taking were on prescriptions provided by Dr Murray. Her evidence on this subject included the following (T63.19-40):
"Q. It could have been over a year since you went to see Dr Murray last for any treatment?
A. Your guess is as good as mine. I can't remember.
Q. My guess would be absolutely useless because we are interested in your evidence?
A. I'm sorry, I can't remember.
Q. Now, you said that the reason that you had not seen him is that you did not see a need to see him?
A. Yes.
Q. Is that because you think your condition has improved sufficiently for you not to see a psychiatrist on any kind of regular basis?
A. The reason I was seeing Dr Murray is because it is a requirement when you are on workers' compensation, that you are under a psychiatrist. I can't say that seeing any psychiatrist has helped me in any way. The only people that have helped me are my friends and family. Seeing a psychiatrist does not help me, and that is only because it is a requirement for workers' compensation so that they can write down what I say, then the solicitors for workers' compensation can subpoena those documents to use in court against the victim."
117In further cross-examination, the plaintiff explained that she was now coping well and had not felt that she needed to see Dr Murray.
118The plaintiff said that she saw Dr Suefong from time to time for "prescriptions and sometimes a little bit of a pep talk": T62.10-15. She would probably go a few months before she would see Dr Suefong and thought that she had seen the general practitioner twice this year, both times being for workers compensation certificates and a prescription.
119The plaintiff gave evidence that she decided to stand for Parliament after the mediation on 27 October 2010. She had spoken to enough people to have the fifteen signatures from electors who live in the Swansea electorate to permit her to nominate. She had set up a campaign website, attended a few meetings and the Greens and the Liberal Party had talked about "swapping preferences". She had attended a Green's preference forum where she was "selling" her policies to about 20 people. The Liberal Party had rung her twice wanting to swap preferences but she told them that she was unwilling to make any decision "at this stage". The Greens had also rung her and had been informed that she wished to wait until the draw to see where she appeared on the ballot paper. She said (T66.43-46):
"The only reason why I'm really running is because I have been encouraged to run by a lot of people that have been ringing me up over the years to say we need somebody honest and with integrity in the seat of Swansea."
120She believed that she could offer the electorate honesty and integrity, a hard work ethic and was willing to listen to people.
121Dr Suefong in a WorkCover medical certificate (ex C) had provided that the plaintiff was "fit for suitable duties from Tuesday 22 February 2011 to Tuesday 22 March 2011". In re-examination, the plaintiff told the court that the doctor issued the certificate following a conversation with her. She said (T116.32-36):
"So when I did go see my doctor I told her what I was doing and that I wanted to, you know, to run as a candidate and I said, "Even if I win or not, I want to at the end of this, my campaign", I said to her, "is my return to work programme and at the end of it I want to get some form of meaningful employment."
122She felt traumatised by the ordeal of the mediation and "in the days that followed [she] just thought I'll show the bastards": T117.33-34. She agreed that this was to her mind part of a cathartic process. She wanted to look forward and to have a life again.
Psychiatric and psychological evidence
123I propose now to commence a summarised review of the evidence of the psychiatrists and psychologists, none of whom gave oral testimony during the hearing.
124The plaintiff's treating psychiatrist was Dr Murray, to whom she had been referred by Dr Suefong. Dr Murray saw her for the first time on 14 November 2006. In a report dated 6 December 2006, Dr Murray was of the opinion that the plaintiff qualified for a diagnosis of Major Depression, Panic Disorder with Agoraphobia and Generalised Anxiety Disorder. He opined (ex B TB 286):
"These arise from her predicament in relation to acting as a police informant in matters relating to her work as an assistant to a local Member of Parliament."
125He suggested that the plaintiff "trial supplementation of her current dose of Avanza with Venlafaxine". The plaintiff was to commence with a dose of 75mg a day and had instructions to increase the dosage to 150mg a day "in the next week or two provided side-effects permit".
126In a report dated 14 May 2007 to the plaintiff's solicitors, Dr Murray confirmed his earlier diagnosis. He had seen the plaintiff on eight occasions. He noted that the plaintiff had "asked for [the] opportunity to discuss the workplace events that gave rise to her emotional difficulties". They had agreed to meet on a weekly basis and subsequent appointments "were eventually booked at increasing intervals". Dr Murray observed (ex B TB 291):
"Following initial improvement in her condition, [the plaintiff's] psychological state stabilised. However, progressive focus on the various legal and compensation processes, a sense of betrayal by Parliament, increasing anger, a State election, and the ostensible prospering of her past workmates while she remained both unemployed and facing reduced compensation gave rise to a sense of stagnation and resentment. We discussed this at today's consultation, where I challenged [the plaintiff] to resist investing hope in legal processes, and to avoid deferring life decisions."
127Dr Murray reported that the plaintiff remained on a relatively low dose of Venlafaxine (75mg) and moderate dose of Mirtazapine (30mg). No reports from Dr Murray after 14 May 2007 were tendered although Dr Dinnen refers to Dr Murray's brief note of 5 January 2009 in his report, dated 26 November 2010: see [141] below.
128The plaintiff was admitted to the Lakeside Clinic, Warners Bay Private Hospital on 8 October 2007. Dr Tim Miles, Medical Officer, in a report dated 11 October 2007 (ex B TB 292) to the workers compensation insurer, wrote that the plaintiff "has had an exacerbation of a depressive illness". She had been depressed "in relation to issues connected with her work in the electorate office of a Member of Parliament." She was anhedonic, had low levels of energy and appetite and significant suicidal ideation. The plaintiff was on anti depressant medication and the dosage was increased prior to admission. Dr Miles observed that there had only been a slight improvement so that it was likely that she would need either an increase in dose of her current medication or a change in antidepressant. He reported (ex B TB 292):
"Given her current level of symptomatology it is likely that she will need to be in hospital another month. Her depressive symptoms need to improve to significantly improve her level of functioning and decrease the risk of her committing suicide."
129Dr Miles asked the insurer to permit the plaintiff to continue her treatment in hospital "for up to another four weeks".
130In a report dated 23 October 2007, Dr Miles reported that since being in hospital, the plaintiff was "beginning to improve". Her mood was better and her ability to problem-solve had also improved. Dr Miles observed that her recovery "at the moment" was only partial and the plaintiff would benefit from being in hospital for a further time. He predicted a discharge date of 9 November 2007. It appears from the hospital notes that the plaintiff was discharged on that date.
131There are six reports from Dr Anthony Dinnen a consultant psychiatrist, to whom the plaintiff was referred by her solicitors for examination and report. Dr Dinnen's reports dated 15 February 2007, 25 September 2007, 7 April 2008, 25 October 2010, 26 November 2010 and 11 January 2011 are found in ex B TB 210-239.
132Dr Dinnen in his first report under the heading Assessment of impairment - Workcover Guidelines reported a diagnosis of chronic adjustment disorder with anxiety and depressed mood.
133As to permanent impairment , Dr Dinnen reported that "the condition has persisted now for six years" and "there is some degree of permanent impairment". He stated it was likely that "it will be some time before she will recover to the point where she could resume work, according to her treating psychiatrist". The psychiatrist assessed a percentage of whole body permanent impairment as 20 per cent being 17 per cent plus 3 per cent for ongoing psychiatric care. Dr Dinnen concluded that the plaintiff's ongoing psychiatric treatment would need to continue for "quite sometime" and it may be a "lengthy period" before she could be rehabilitated and retrained to re-enter the work force.
134Dr Dinnen's report dated 25 September 2007 deals with a report of Dr Graham Vickery, psychiatrist of August 2007, which is not in evidence. It is sufficient to note that Dr Dinnen considered that Dr Vickery's opinion that the plaintiff had no psychiatric condition was wrong.
135Dr Dinnen saw the plaintiff at the request of her solicitors on 4 April 2008 for a further report. He observed (ex B TB 224):
"The patient was still very much preoccupied with matters to do with the prosecution of [the third defendant]. Even when asked about current symptoms she would return to a discussion of the events involved in the court case, or her contacts with the media. When the phone rang she assumed it may have been another reporter; a radio station had phoned her home the previous day."
136He noted that the plaintiff's "memory and concentration are better than they were before" and that she was no longer using alcohol excessively. Whilst there had been some improvement since September 2007, Dr Dinnen expressed the opinion that "there is likely to be permanent impairment, at a level not much better than is found at this interview today". He opined that the plaintiff was still unable to work in any capacity and although the prognosis seemed "somewhat more favourable" than the previous examinations, the outcome in the long-term was by no means certain. He stated (ex B TB 228):
"There has been some improvement, but it should be understood that the need for hospitalisation as recently as last October is not a favourable prognostic feature. I believe that she has reached the stage of maximal medical improvement, so far as the PIRS scale of assessing impairment is concerned, for the next two years. It is possible that within the next two to five years there may be some further improvement, but I would not expect her ever to fully recover because of the prolonged nature of stress and the illness which resulted from it."
137I pause here to observe that it was Dr Dinnen's opinion that the plaintiff's condition has persisted "for well over six years and had worsened over the past two years". The plaintiff's complaint in the present proceedings commences from 10 October 2005 and it seems that the plaintiff's chronic adjustment disorder, in Dr Dinnen's opinion, preceded the allegations of victimisation, bullying and harassment upon which the plaintiff's causes of action are found. It is presently convenient to have regard to the reports of Dr Fenton and Dr Wade of the plaintiff's consultations in 2004, which followed upon the threatening and aggressive actions of Mr Bridge.
138Dr Fenton in a report dated 20 April 2004 (ex B TB 265) considered that the plaintiff was suffering from "extreme anxiety in relation to her problems with a member of the public". Dr Fenton stated that the plaintiff was having difficulties coping with this behaviour and her personal life and work were suffering.
139Dr Wade in a handwritten preliminary assessment summary dated 27 July 2004 makes mention of the plaintiff being "in a state of shock and grief, with her disappointment with lack of integrity of these politicians". It seems that Dr Wade was referring to the plaintiff's complaint of "lack of support from [the third defendant] as well as problems with the local Federal member's office" over Mr Bridge's threatening behaviour. Dr Wade opined:
"[The plaintiff] has concerns for her future and trust in her workplace as a safe place. This distrust defines a workplace psychological injury that may be exacerbated by continuing to work in this environment."
140Dr Wade wrote to Dr Fenton on 13 September 2004 advising that he had not seen the plaintiff since he had written his preliminary assessment summary. He states (ex B TB 267):
"I think that it was probably just a one off visit related to the crisis, really a crisis of grief in terms of her disappointment of how she was treated by her boss as well as the Local Federal Member as well as other people associated with them. Certainly though a significant psychological injury occurred in terms of unsafety and distrust of the work place being a real issue and it may be [the plaintiff's] best option is to slowly look around for alternative employment otherwise accept in a more cynical sense that politicians are politicians and one would have to be nave to trust any of them, that is that it may be that the resolution of grief is a more healthy realistic scepticism."
141Dr Dinnen was asked by the plaintiff's solicitors to re-examine her which he did on 21 October 2010. During his report dated 26 November 2010, Dr Dinnen referred to a letter from Dr Murray, which is not included in the reports tendered in the plaintiff's case, and to his disagreement with Dr Murray's opinion. Dr Dinnen wrote (ex B TB 235):
"The letter from Dr Murray of 5 January 2009 is a brief note to the patient's lawyers. He did not consider she was totally incapacitated for work but that a graded return to work would follow occupational rehabilitation. "Once the legal matters are finalised I expect that Ms Sneddon would make her own way in regard to occupation and re-ordering of her private life, with the eventual result that she achieves full recovery". However, he noted that when last seen, on 18 November 2008, symptoms included lethargy, oversleeping, lack of motivation, with residual depression, medication effects and unemployment contributing to these complaints."
142Dr Dinnen did not agree with the treating psychiatrist's opinion "that once these legal matters, to do with the third defendant, have been resolved that she will recover." He opined, "That unfortunately is not at all certain in such cases. Many patients, such as [the plaintiff] who have been traumatised over a lengthy period of time, do not recover but continue to suffer the ongoing effects of their anxiety and depressive symptoms. Indeed her preoccupation with these events is quite palpable" (ex B TB 235). It was Dr Dinnen's opinion that it is highly unlikely that the plaintiff "will return to work in any capacity". He considered that the likelihood of any sort of return to work under these conditions, considering "the events of the last decade impinging on the plaintiff's well being was fanciful".
143In a supplementary report dated 11 January 2011, Dr Dinnen noted that the plaintiff had only seen her psychiatrist "once in the past year" which he did not think was adequate. He expressed the view that the plaintiff should be seeing a treating psychiatrist "at least once every one to three months, over the next two to three years". He believed at the least, the plaintiff should be seen for psychiatric review four times a year over the next three years, but it was not possible to predict with confidence how long she would require treatment. He considered that she may require ongoing care indefinitely and should maintain treatment with anti-depressant medication on a long-term basis, namely Avanza 30mg at night and Efexor 75 to 150mg daily on an indefinite basis. Dr Dinnen opined that it is to be expected that once litigation has been concluded this would provide some relief but noted her continued preoccupation with the injustice of the whole affair did not provide a hopeful prognosis. There may well be exacerbations of her symptoms of anxiety and depression in the future in response to stress.
144The plaintiff was referred to Dr Gregory Steele for an assessment under s 319 Workplace Injury Management and Workers Compensation Act 1998. In a medical assessment certificate dated 3 June 2008 issued pursuant to s 325 the degree of permanent impairment was assessed at 17 per cent: ex B TB 260. Dr Steele found that the plaintiff had developed a psychiatric illness, which fitted the criteria for a Chronic Adjustment Disorder with mixed Anxiety and Depressed Mood.
145The first defendant tendered in his case an Earning Capacity Report dated 29 August 2007 compiled by Dr Mitchell and Mr Brown (ex 1 D2 TB 28-49). Dr Mitchell holds a degree in occupational medicine and Mr Brown is an occupational psychologist. The authors of the report considered that the plaintiff had previously been experiencing an adjustment disorder with anxiety and depression, which had "significantly lifted". The plaintiff was described as being "only somewhat anxious and moderately depressed". She had improved "greatly in recent months" and with the completion of the court case, it was the authors' opinion that the plaintiff's remaining symptoms should resolve. The plaintiff was found to be "fit to work at a high level in office administration, or in any other form of work for which she is suited by skills and experience".
146In a Pre-Liability Assessment dated 2 November 2006 provided by Briget Gurton, a consultant psychologist, to Allianz Insurance, Ms Gurton opined that at the time the plaintiff "went off work and at the present time", the plaintiff's symptoms warranted clinical diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood, Acute (Classification 309.28) as defined by the Diagnostic and Statistical Manual of Mental Disorders -Fourth Edition (ex 1D2 TB 50). She stated that based on available evidence, it appeared that work was a substantial contributing factor to the plaintiff's "current distress". She observed:
"In relation to the alleged behaviours exhibited by Mr Bridge and the subsequent AVO's ... it would appear that it could not reasonably be expected, given the distal nature of these events that this could cause [the plaintiff's] current distress. Rather, it would appear that Mr Bridge's behaviour and the application for two AVO's in relation to this, likely served to increase [the plaintiff's] vulnerability to experience distress when faced with subsequent workplace conflict and stressors."
147The plaintiff was assessed by Professor Robert Pryor, a vocational psychologist, on 25 May 2010 for the preparation of a Vocational Assessment Report : ex 1D2 TB 75. Professor Pryor concluded at TB 82-83:
"[The plaintiff] presents with major personal adjustment problems apparently as a result of an ongoing obsession with work events and perceived "unfinished business". [The plaintiff's] attempts at further self-justification appear to have metamorphosed into a cause celebre against the misconduct of a wide range of other politicians whom she accuses of child abuse or equivalent crimes. This crusade seems to have almost taken over her life in a way not dissimilar to the reportedly fanatical constituent with whom she had to deal on an ongoing basis whilst employed as an electoral officer. While the pursuit of justice is a perfectly justifiable motivation in this case it seems to have become so absorbing of [the plaintiff's] thinking and emotional reactivity as to be approaching obsession and vendetta. In the process this seems to be eating her up emotionally, financially and vocationally.
Moreover her ongoing attempts to expose the putative evil of others, appear to be simply fuelling the fire of her discontent and thereby preventing her from changing focus and moving on with her life. Indeed so compulsive has this need to pursue issues arising out of the gaoling of her former boss, it seems that [the plaintiff] is disregarding the advice of her psychiatrist and removing herself from his assistance in the process. This is regrettable since it means that [the plaintiff] will not consider any challenge to her ongoing fixation with exposing perceived abuse, which has gone well beyond the original events which started the subsequent chain of events.
Until [the plaintiff] is able to relinquish the obsession with the quest for revenge and self justification it is doubtful from this assessor's perspective that she will be able to resume employment. Work could form part of her rehabilitation programme and would provide an external focus which could take her away from her concentration on her concerns about self justification. However, [the plaintiff] seems unresponsive to this and is supported by her well-intentioned friends who encourage and support her and in effect perpetuate her sense of ongoing vendetta. It seems to me that her psychiatrist is actually on the right track and that his advice insofar as I can discern it through [the plaintiff], appears both reasonable and helpful if followed."
Some findings of fact
148I digress here to consider some matters of fact that are controversial. In closing written submissions, it was contended for the plaintiff that she had clearly emphasised to Mr Saunders in the conversation of 11 September 2006 that what she was conveying was "off the record". Furthermore, he had confirmed that he understood those words to mean that the plaintiff was anxious about who her remarks were passed on to. This submission finds initial support in Mr Saunders' evidence in cross-examination. When cross-examined by Mr de Meyrick on the conversation of 11 September, Mr Saunders testified as follows (T135.19-30);
" A. To be honest, I don't really recall whether I understood that she was or that file note was as a result of my conversation with her about it. I really don't recall, I'm sorry.
Q. One of the things I think Ms Sneddon stressed to you in this conversation of 11 September was that, in her words, what she was conveying to you was off the record, is that right?
A. She did use those words, yes.
Q. And you would reasonably understand those words, I presume, to mean that she was anxious about who her remarks were passed on to?
A. Yes."
149The strength of that evidence was, however, diminished in further cross-examination (T136.19-30):
" Q. I presume you would have also relayed, whether or not these words appear in your file note that Gillian was keen to stress that this was off the record?
A. I do know Ms Sneddon used the words "off the record", but I don't know I don't recall that it was in this conversation.
Q. All right. You have said in your statement which you made in August 07 I withdraw that. Whether or not you have used those words in your statement, I'm suggesting to you that that was very much the tenor of what Ms Sneddon communicated, especially about the police investigation and that side of things?
A. I do know in a subsequent conversation she used those words "off the record" and I included them in subsequent file notes, yes."
150It was evident that there was some confusion on Mr Saunders' part as to when the plaintiff used the words "off the record". Those words do not appear in Mr Saunders' file note on 11 September 2006, but in his file note of 19 September 2006. When the plaintiff's counsel referred him to the conversation of 19 September and asked (T141.38-39):
" Q. Again, it was something that Ms Sneddon emphasised a number of times in this conversation, as she put it, off the record?"
Mr Saunders replied (T141.40-41):
" A. On that conversation on the 19th, that is when she used the words "off the record", yes."
151The plaintiff did not give evidence that she told Mr Saunders during the conversation of 11 September 2006 that the conversation was "off the record". The suggestion that she did arose during her counsel's cross-examination. I am neither satisfied on the balance of probabilities that those words were used in the conversation of 11 September nor that she emphasised to Mr Saunders that what she was conveying was "off the record". The plaintiff did, however, make it plain to Mr Saunders during her conversation of 19 September that what she said was "off the record".
152Another submission bears close consideration. Mr de Meyrick put to me that the irresistible inference from the absence of any evidence from Mr Grove or otherwise to rebut it, is that Mr Grove related to the third defendant in the telephone conversation at about 5.25pm on 11 September 2006 some or all of the contents of the plaintiff's "confidential" call to Mr Saunders. The plaintiff's counsel identified the following matters from which the inference could be drawn;
The meeting at about 5pm on 11 September 2006 between Mr Saunders, Ms Schofield and Mr Grove during which Mr Saunders passed on the contents of the telephone call that he had earlier that day with the plaintiff;
The close proximity between the time of the meeting and the telephone call that was made between Mr Grove and the third defendant;
To the plaintiff's knowledge Mr Grove had not rung the office before;
The third defendant's very violent outburst at the plaintiff the next day.
153In Nguyen v Cosmopolitan Homes Pty Ltd [2008] NSWCA 246, McDougall J (with whom McColl and Bell JJA agreed) dealt with what is needed to meet the standard of proof on the balance of probabilities in a case where the evidence is circumstantial. His Honour said [at 55]:
"The position may be summarised as follows:
(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact's existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue."
154I am satisfied that the evidence establishes that the meeting was held at about 5pm during which Mr Saunders related, what was said by the plaintiff to him, to Mr Grove and Ms Schofield and the third defendant was rung by Mr Grove at about 5.25pm. This telephone conversation, however, was not followed by an immediate outburst or display of anger by the third defendant towards the plaintiff. The third defendant's angry attack upon the plaintiff occurred on the next day during the ALP branch meeting because of the plaintiff's support for Bryce Gaudry, who had lost his party's preselection. It is unsurprising that the third defendant would be upset in those circumstances with the plaintiff, his senior electorate officer, and would ask if she wanted him to resign as a Minister of the Crown when she had written to the local newspaper expressing support for the disendorsed Member for Newcastle. Furthermore, as Mr Grove had been made aware that the plaintiff was suffering stress as a result of working with the third defendant, it is not surprising that he contacted the third defendant. As to any inference that may be sought to be drawn from the plaintiff's evidence that Mr Grove, to her knowledge, had not previously rung the Member for Swansea, there is no material to suggest that he had any reason otherwise to contact the third defendant until the plaintiff's complaint of stress to Mr Saunders was brought to his attention.
155I understood from the reference by the plaintiff's counsel to the absence of evidence from Mr Grove, that he was submitting that the conditions for the operation of the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 were present. Accordingly, I would be entitled to treat the failure by the first defendant to call Mr Grove as a reason for drawing more readily the inference that he had discussed with the third defendant some or all of the plaintiff's conversation with Mr Saunders. Ms Norton argued "that kind of inference only operates when the evidence from the plaintiff...gets to the stage where it needs to be rebutted": T201.39-40. She submitted that as the plaintiff did not hear the conversation and as the conversation could only be limited to Mr Saunders' file note, the evidence did not get to that stage.
156The principle in Jones v Dunkel only applies where a party is "required to explain or contradict": Jones v Dunkel per Windeyer J at 321. The basis of the rule is "plain commonsense": Jones v Dunkel per Windeyer J at 320-322. As was emphasised by Allsop P in Galea v Bagtrans Pty Ltd [2010] NSWCA 350 at [2], the principle "cannot be used to draw a positive inference if the evidence does not otherwise admit of a rationally drawn inference". In my opinion, the evidence could not rationally have lead, on the balance of probabilities, to the inference that the plaintiff claims should be drawn, and did not require Mr Grove to be called as a witness.
157On the whole of the evidence, I am not persuaded, on the balance of probabilities, that Mr Grove related to the third defendant any of the contents of the telephone conversation between Mr Saunders and the plaintiff other than her report that she was suffering from stress: Nguyen v Cosmopolitan Homes Pty Ltd at [55]. The plaintiff's belief that she "could no longer trust Parliament" was not, in my opinion, properly founded. I note that her distrust did not inhibit her from ringing Mr Saunders some eight days later and having an "off the record" conversation with him.
158In any event, it appears that the plaintiff did not disclose much in the conversation with Mr Saunders that could be regarded as confidential. According to the plaintiff's statement to police dated 28 September 2006, she did not go into the sexual assault allegations with Mr Saunders in "too much detail". She had had a conversation that she "thought" was on 11 September 2006 "regarding this matter" with the third defendant during which he said (ex B TB 18 par 10):
"Well how do you think I feel. I'm the one that's [sic] stand accused".
159The third defendant was aware that he had been accused of sexual abuse. There is nothing in Mr Saunders file note or the plaintiff's statement, which suggests that Mr Saunders was aware that the police were investigating matters specifically raised by the plaintiff. The sole part of the conversation that suggests non-disclosure is the plaintiff's account to Mr Saunders that she had been told by police not to inform the Member of the current investigation.
160In closing written submissions, the plaintiff, at par 80, contended that the Briefing Note, quoted at [111] above, together with Mr Saunders' testimony explained how the first defendant "acted on a spurious security concern expressed by the third defendant about the plaintiff when it arranged to change the locks at the plaintiff's work". The plaintiff argued that "this was all orchestrated by Elaine Schofield and/or Russell Grove in full knowledge of the fact that the plaintiff was, inter alia, assisting police with a confidential investigation into child sexual assault". Another argument was that the first defendant betrayed the plaintiff by supporting the third defendant to lock out the plaintiff when common sense led to "the inextricable conclusion that the third defendant was trying to hinder a police investigation into his conduct": par 133 closing written submissions. It was pointed out that neither Ms Schofield nor Mr Grove was called as a witness.
161The plaintiff maintained during her evidence that nobody in the electorate office saw her taking anything but Vicki Mathieu had seen her putting her envelopes back into her office drawer. I do think, however, there is a degree of favourable reconstruction and self-justification in the plaintiff's testimony on this issue. It is plain from the Briefing Note that the removing and copying of documents by the plaintiff was observed. Ms Schofield was entitled to advise the third defendant that the records in the electorate office were the private records of the Member of Swansea and it was his decision who had access to them. Notwithstanding the plaintiff's reference to "her own telephone message books" during her testimony, the plaintiff accepted that these books were not hers but belonged to the office. I reject the plaintiff's submission that the security concern was "spurious" and that the change of locks was "orchestrated" by Ms Schofield or Mr Grove. I also reject the plaintiff's argument that the "inextricable conclusion" was that the third defendant was trying to hinder the police investigation. Neither Ms Schofield nor Mr Grove had the benefit of hindsight and the third defendant had not been charged by police at the time. The plaintiff had not informed Mr Saunders, Ms Schofield or Mr Grove that she had accessed the electorate office to provide documentation to assist the police or that she believed that the third defendant would destroy the written material. In any event, they were obliged to accord to the third defendant the presumption of innocence. The discussion with the Member for Swansea concerning the option of changing locks was not improper in the circumstances nor was the authorisation by the Clerk of the Legislative Assembly for the locks to be changed. I should add that the first defendant was not required to call Ms Schofield or Mr Grove to give evidence on this issue. The evidence could not rationally have led to the inferences that the plaintiff seeks to draw and I would reject any suggestion that the principle in Jones v Dunkel applies.
162There was a deal of criticism of the plaintiff as a witness. A number of factors were said to undermine the reliability of her evidence. To my mind, the plaintiff's failure to complain to Lyndal Davies on 21 October 2005 about the conduct of the third defendant or any staff member requires close inspection, particularly when considered in combination with the statement made to police on 23 August 2006. The plaintiff's account to police that for "about a month" she felt "things were a little bit strained" and that "things seemed to get back to normal in the office" is consistent with the lack of complaint to Ms Davies.
163This material does not support the plaintiff's evidence that she was victimised, bullied and harassed by the third defendant following her return to work in October 2005. The plaintiff's evidence that she did not complain to Ms Davies as there was not "too much to raise at that point" provides no explanation as to the absence of any complaint in the months that followed to Ms Davies, Mr Saunders or Ms Schofield. The complaints that the plaintiff had made concerning Mr Bridge's conduct suggest that the plaintiff was not a person who lacked the confidence to speak up on her own behalf or felt too intimidated or embarrassed to complain.
164When cross-examined by Ms Norton on her August 2006 police statement, the plaintiff explained that she had "had more time to think about it now": T89.23. The plaintiff accepted that she had made no corrections as to the contents of pars 21 to 23 of the August police statement in her second statement to police dated 28 September 2006.
165Another difficulty with an immediate acceptance of the plaintiff's testimony of victimisation, bullying and harassment by the third defendant, after her return to work in October 2005, is that the clinical notes of Dr Suefong, (her general practitioner), did not specifically mention problems with the third defendant at work until the consultation on 23 August 2006. The general practitioner's notes of 6 March 2006, do however, inter alia, record "stress at work" but the plaintiff agreed in cross-examination that the immediate stressor at the time were the family problems she was experiencing. Dr Murray, in his report dated 6 December 2006, observed that the plaintiff "it seems experienced a sense of gradual falling out of favour with [the third defendant] as the processes of police inquiry continued" (italics added).
166One of the matters to which Mr Lindsay referred as undermining the reliability of the plaintiff's evidence was the vagueness of her testimony regarding the precise conduct, which allegedly constituted bullying, harassment and victimisation. Mr Lindsay pointed out that when recounting specific instances of the third defendant swearing; the highest evidence the plaintiff put forward was one instance where he swore over the telephone (T40.15-16); and one instance where she overheard him swear in a meeting (T40.17-26). Senior counsel for the second defendant also made reference to the plaintiff's account of specific instances of the third defendant's personal comments about her. The highest evidence the plaintiff put forward, Mr Lindsay said, was one comment where the third defendant said "something" about her breasts (T43.9-11) and one comment about her "looking yellow" (T44.3-10).
167I do consider it to be unusual that if the third defendant's misconduct towards the plaintiff, between October 2005 and September 2006, was as intense as the conduct about which she in general terms complains, the plaintiff was unable to provide other examples of bullying, harassment and victimisation. Furthermore, the plaintiff's assertions of extreme strain in the relationship between her, the third defendant and other electorate officers is not reflected in the invitation by him to the plaintiff and Ms Calder to attend the White Ribbon Breakfast nor his request for the plaintiff and Ms Calder to have a look at the statutory declaration placed under the electorate office door in August 2006.
168A feature of the plaintiff's evidence was a tendency to generalise and to resort to indignant overstatement. I mention here that my analysis of the plaintiff as a witness includes the conclusion that she has become so profoundly obsessed by her perception of injustice that her evidence of some events is exaggerated and unreliable.
169I am not satisfied on the balance of probabilities that between October 2005 and September 2006 the degree of the third defendant's bad behaviour towards the plaintiff was either as high or as constant as described by the plaintiff. Nevertheless, I accept the plaintiff's testimony that the "tension" in the office "never returned to normal". I do think that it is more likely than not that the third defendant harboured distrust and anger towards the plaintiff after she had spoken to Bryce Gaudry. I accept that on one occasion, the third defendant angrily confronted the plaintiff when he put his face about an inch away from hers and said "you believed a drug addict over me," notwithstanding that Dr Dinnen's record of this event in his report dated 15 February 2007 (ex B TB 212) is expressed in terms of the third defendant's "disappointment" rather than his displeasure. I do find that between October 2005 and September 2006 the third defendant made inappropriate and offensive comments about the plaintiff's body and dress and spoke to her aggressively. He mocked the plaintiff and yelled at her in front of a constituent when he discovered the sign on the electorate office door on 24 October 2005. I accept that the third defendant bypassed her by asking Ms Calder to perform tasks that would ordinarily be undertaken by the senior electorate officer. Although the scale of this conduct was lower and not as frequent as that claimed by the plaintiff, I conclude that it amounted to harassment and bullying of her in the workplace by the third defendant and was contrary to the Parliament's Harassment Free Work Place Policy .
170There is another matter that is to be considered. Mr de Meyrick referred to the third defendant "in a quite sinister and chilling way" repeatedly taunting the plaintiff that her son had been involved in under-age sex. It was submitted that the plaintiff understood the comments about her son to be a threat; to keep her from being a witness against him and in the overall context of the evidence that conclusion was most likely correct. Mr Lindsay contended that the "vague manner" in which the plaintiff gave evidence about this incident was a factor to be taken into account in assessing the plaintiff's reliability as a witness.
171Ms Norton submitted that this was conduct of which the plaintiff became aware during the course of the third defendant's trial and was not relevant to the development of her illness. I disagree with Ms Norton's submission. The plaintiff's evidence of what she ascertained during the third defendant's trial concerned his attendance at her home whilst she was overseas. Her account of the third defendant telling her about her son's involvement in under-age sex was said to have occurred after her return from overseas and before 13 September 2006.
172I observe, however, that in contrast to the plaintiff's testimony the third defendant repeatedly made the statement in the presence of his driver, Dr Dinnen recorded that " on one distressing occasion he told her that her son had also been involved in under-aged sex". It is remarkable, in my opinion, that if these statements were made repeatedly and in such a manner that the plaintiff understood them to be threats to prevent her from being a witness, she did not inform the police of what had been said, when she was interviewed in August and September 2006. I am not satisfied on the balance of probabilities that the third defendant made the statement about her son repeatedly and in the presence of the driver. I do find, however, that the third defendant told her about her son's involvement in under-age sex on one occasion. I am not satisfied on the balance of probabilities that the third defendant did so with the intention of intimidating her and discouraging her from speaking to police but did so to be unpleasant and to upset her. This behaviour by the third defendant amounted to harassment, as did his angry attack upon her on 12 September 2006 for her support for Mr Gaudry. Furthermore, I am not satisfied that the third defendant ever had the intention to engage someone to harm either the plaintiff or a member of her family. I accept, however, this was a perception that the plaintiff held at the time as part of her depressive illness but these fears did not have a proper factual foundation.
173It is the plaintiff's case that after 17 October 2005 she was treated badly not only by the third defendant but also by her fellow electorate officers. Her complaint of victimisation, bullying and harassment is not confined to the Member for Swansea but extends to her co-workers. It is her evidence that she was ostracised, stigmatised, regarded as a "traitor" and "frozen out" of the office. She felt unsupported and misunderstood. During oral submissions, the plaintiff's counsel put to me that her co-workers had been persuaded by the third defendant to support him and to mistreat the plaintiff. Mr de Meyrick referred to the attempts by Ms Calder and Ms Mathieu to discourage her from reporting allegations against the third defendant to the authorities or criticising her for doing so. Mr de Meyrick pointed out that the first defendant did not call any of the persons who might be in a position to assist the court as to the "goings on in the Swansea electorate office" and submitted that in those circumstances the plaintiff's evidence could be taken at its highest.
174It seems to me that the evidence of the plaintiff's treatment by her co-workers requires an answer and no explanation was provided as to why Ms Calder and Ms Mathieu, in particular, were not called to give evidence. I draw the inference that their evidence would not have helped the first defendant and I will take that into account in my consideration of any matters on which Ms Calder, Ms Mathieu and other electorate staff could have spoken. It is trite to observe that the principle in Jones v Dunkel cannot, however, be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference: Payne v Parker (1976) 1 NSWLR 191 at 194.
175Ms Norton submitted that the plaintiff had made no complaint of mistreatment by her fellow workers to Ms Davies or the police. Mr Lindsay supported that submission and made reference to the plaintiff's relationship with other staff members as being "surreptitious" and "calculated to mislead them" which was another factor undermining her reliability as a witness.
176Although I accept that the plaintiff was not treated with warmth by Ms Calder when she returned to the electorate office on 17 October 2005, the lack of complaint to Ms Davies and her account to police that for about a month "things were a little bit strained" does not stand happily with a complaint of being ostracised and stigmatised as "a traitor" by any of her co-workers. Nor does the plaintiff's testimony that "Vicki Calder knew that [she] could be trusted beyond all doubt [and] ...would never steal anything": T105.24-25. Another matter to be taken into account is that in the histories recorded by Dr Dinnen, there is no mention of Ms Calder or any other electorate office worker. Dr Murray's reference in his reports is confined to the third defendant. Dr Suefong's clinical notes do not record the plaintiff being harassed at work until the notes of the consultation of 23 August 2006, which disclose "recurrent problems at work with boss accused" (italics added). The plaintiff said in cross-examination that she "would talk frankly about what was happening in the office" to Dr Suefong who she said, knew Ms Calder. I do think, however, that should the plaintiff have spoken to the general practitioner about her ill treatment by co-workers, Dr Suefong would have made some record of what she had been told.
177It is an egregious feature of the plaintiff's testimony that there is little specific evidence of any of the plaintiff's co-workers excluding or isolating her, psychologically harassing her or undermining her work performance. Whilst I consider it is more likely than not that the plaintiff's relationship with Ms Calder did not completely return to the relationship they had prior to 10 October 2005, I do not find that she was "frozen out" of the office by any of her co-workers. Ms Calder's disagreement concerning passing M's conversation on to anybody else or making a record of it does not amount to victimisation, bullying or harassment nor does Ms Calder's desire not to hear the allegations made by B against the third defendant. She did not punish the plaintiff for having a different view to her. I do not find that Ms Calder attempted to persuade or discourage the plaintiff from reporting the allegations against the third defendant to the authorities. Notwithstanding the absence of evidence from Ms Calder, I am not satisfied on the balance of probabilities that the plaintiff was victimised, bullied or harassed by her.
178The plaintiff described her working relationship with Ms Mathieu as not changing as much after October 2005 as it did with Ms Calder. The plaintiff's specific testimony of misconduct by Ms Mathieu towards her appears to be confined to their confrontation when the plaintiff returned the envelopes she had previously taken from the electorate office and to Ms Mathieu's response on 4 October 2006 to the plaintiff that she was not allowed to enter the office. Ms Mathieu, in my view, was entitled to challenge the plaintiff about what she was doing in the office. Ms Mathieu's disapprobation of the plaintiff's actions does not amount to mistreatment. Furthermore, in view of the plaintiff's photocopying and removal of electorate office records and the changing of the office locks, it is unsurprising that Ms Mathieu's understanding was that the plaintiff was not permitted to enter the office. Any complaint against Ms Warren appears to be confined to Ms Warren informing the plaintiff that she was no longer allowed to speak to her. Notwithstanding the absence of evidence from Ms Mathieu and Ms Warren, I am not satisfied on the balance of probabilities that the plaintiff was victimised, bullied or harassed by Ms Mathieu or by Ms Warren.
Intentional tort
179The plaintiff pleaded that the third defendant's conduct in victimising, bullying and harassing the plaintiff constituted assaults upon her and also constituted intentional acts done with intent to cause injury within the meaning of s 3B(1)(a) CLA: see statement of claim pars 27 and 28. The pleading was repeated in pars 30 and 31 but against the "servants or agents" of the second defendant. To establish an intentional tort, the plaintiff must prove on the balance of probabilities that the third defendant's intentional conduct and/or the intentional conduct of the electorate office workers was calculated to cause her physical harm, being a psychiatric or psychological injury: Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1 per Jordan CJ at 11; Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307 at 347. As Spigelman CJ recognised in Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 at 487 [80], "a test of reckless indifference to a result will...satisfy the requirement of intention." A finding of intentional tort has significance in the present case as the availability of exemplary and aggravated damages is dependent upon it.
180For the reasons mentioned at [227] - [228] below, the entry of default judgment against the third defendant does not oblige the court to conclude that an intentional tort has been established against him when the evidence during the trial falls short of the proof required.
181The plaintiff's counsel properly conceded in closing submissions that "absent any deemed admission by the third defendant to cause harm," there was no evidence upon which the court could conclude that the third defendant's actions were done with the intention to cause harm as opposed to want of care. The nature and scale of the third defendant's conduct does not establish, on the balance of probabilities, that the third defendant intended to cause the plaintiff psychiatric or psychological injury or was recklessly indifferent to that result. My conclusions concerning the conduct of the electorate office workers eliminate a finding of the commission of an intentional tort by any of them. I conclude that the plaintiff has not established an intentional tort.
The plaintiff's capacity for work
182Questions were raised by the first and second defendants as to the reliability of the medical evidence upon which the plaintiff relies. In particular, it was submitted by Mr Lindsay that the court should disregard the opinions of Dr Dinnen to the effect that the plaintiff is totally and permanently incapacitated for work as the plaintiff had withheld from him knowledge that she had declared herself a candidate for Parliament and that she had confidence in her ability to cope with the workload associated with such activities. Furthermore, Dr Suefong's medical report (ex C), certifying her fit for "suitable duties" in support of her candidacy for Parliament, was, Mr Lindsay contended, fundamentally inconsistent with any finding that the plaintiff is totally and permanently unfit for employment.
183Ms Norton drew my attention to the reference in Dr Dinnen's report dated 26 November 2010 that the plaintiff told Dr Murray "she would rather be dead than ever work again" which stood in stark contrast to her evidence. Ms Norton reminded the court that arrangements had been made for Dr Dinnen to give evidence during the hearing by video link, which would have provided him with an opportunity to comment on these matters, but the plaintiff's counsel chose not to call him. It was submitted that in these circumstances, even if the first defendant was found to be liable, the plaintiff ought not be entitled to any award for damages for economic loss.
184It was submitted for the plaintiff that as a result of her psychiatric condition, she is and will most likely remain totally incapacitated for work. Mr de Meyrick invited the court to consider whether the plaintiff's aspiration to become the Member for Swansea was realistic or merely symptomatic "of her overpowering difficulty moving beyond the events of the last five years that have so affected her". He submitted that the "fit for duties certificate" from Dr Suefong appears to have been procured at the request of the plaintiff after she was determined to run for Parliament as a reaction to her frustrations about her circumstances and her case. The plaintiff's counsel argued that even if the general practitioner's suitable duties certificate represented some residual capacity to work, it was doubtful the plaintiff could handle the rigours of a parliamentary position. Mr de Meyrick put to me that "her bid for the seat is really a cry for help, and is not grounded in reality nor is her capacity supported by medical evidence": par 145, closing written submissions. One of the submissions Mr de Meyrick made in reply was that Dr Dinnen took a history of improved symptoms when he last saw the plaintiff, but still ultimately concluded that she was unlikely to be gainfully employed.
185The plaintiff decided to stand for Parliament after she saw Dr Dinnen on 21 October 2010. This was the last occasion that the psychiatrist re-examined her and the supplementary report of 11 January 2011 was completed without Dr Dinnen being informed of the plaintiff's intention to offer herself as a parliamentary candidate. There is, as Ms Norton contends, no medical evidence which suggests that such a resolve is unrealistic and beyond the plaintiff's capacity. I would reject any suggestion that Dr Suefong would issue a medical certificate certifying that the plaintiff was fit for suitable duties merely because the plaintiff had informed her of the desire to run as a candidate. It does not surprise me that the plaintiff's treating general practitioner would issue such a certificate. During her evidence, the plaintiff impressed me as an intelligent and articulate woman who had no difficulty concentrating nor did she lose the thread of what was happening. At no time did she exhibit a lack of energy or difficulty with memory.
186It is evident that the plaintiff's bid for Parliament was seriously made, as she believed that she offered honesty, integrity, hard work and a willingness to listen. Her testimony indicated that she was not experiencing difficulties campaigning for the seat of Swansea. I do not accept that her parliamentary candidature was a "cry for help" and was unrealistic.
187The plaintiff's presentation as a witness and her parliamentary candidacy do not sit happily with much of the material upon which Dr Dinnen based his opinion. A finding that the plaintiff has made a substantial recovery is supported by the plaintiff's lack of need in recent years to consult Dr Murray, her treating psychiatrist. Dr Murray's opinion that the plaintiff was not totally incapacitated for work but would eventually achieve a full recovery appears to me to be soundly based and I prefer his opinion to that of Dr Dinnen. I should indicate that I have borne in mind the prolonged period of time that the plaintiff spent as an inpatient at the Lakeside Clinic and the assessment made by Dr Steele that her impairment was permanent. Further reference is made to Dr Steele's assessment at [267] - [268] below. I am not satisfied on the balance of probabilities that the plaintiff, as a result of her psychiatric condition, is, or is likely to remain, totally incapacitated for work.
Negligence
The first defendant
188The plaintiff's claim in negligence against the first defendant, as her employer, was advanced in two ways, the first being described as a "direct liability basis". Although expressed by Mr de Meyrick in terms of direct liability, much of the argument concerned questions of vicarious liability for the acts or omissions of employees. The thrust of the plaintiff's argument here was directed at the conduct of the electorate office staff and other employees, such as Mr Saunders, Mr Grove and Ms Schofield and included claims of inadequate support, inadequate supervision, the failure to take pro-active steps to ensure a safe and relatively stress-free workplace and a betrayal of confidences and prioritisation of the interests of the third defendant. The second way was founded on the imposition of vicarious liability upon the Speaker for the Member for Swansea's conduct. Before venturing into the competing arguments, it is important to consider the duty owed by the first defendant to the plaintiff.
Duty of care
189The duty of care owed by the first defendant, as the plaintiff's employer, to the plaintiff is stated in the joint judgment of the High Court in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 at 842 [12]:
"An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards."
190As Ms Norton emphasised, the first defendant did not have an absolute duty to prevent injury, but had a non-delegable duty to take reasonable care to avoid exposing the plaintiff to unnecessary risks of injury. Such a duty is different from a duty to preserve the plaintiff from harm: State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 at 529.
Breach of duty
191The plaintiff submitted that the first defendant breached his duty of care by failing to provide any or adequate support in circumstances where the employer knew or ought to have known that she was under a significant degree of stress due to her working conditions at the electorate office. The plaintiff argued that the first defendant failed to comply with, adequately supervise and enforce the Parliamentary Staff Code of Conduct, The Electorate Office Personnel - Workplace Stress Policy or the Parliament's OH & S Policy . Furthermore, the first defendant failed to take the pro-active steps required to ensure a safe and relatively stress-free workplace, and failed to provide any or adequate support for the plaintiff.
192It was contended that an important part of the first defendant's failure was that the policies did not apply to the third defendant, who was the plaintiff's effective boss, nor did the first defendant educate, instruct or influence the conduct of the third defendant. The plaintiff argued that by these failures the first defendant had breached his duty of care to the plaintiff. Another complaint was that the first defendant had betrayed the plaintiff's confidences and prioritised the interests of the third defendant over her welfare and support, "especially in wilfully passing on [her] off the record in confidence communications to the third defendant, and supporting the third defendant, to lock out the plaintiff, when common sense led to the inextricable conclusion that [he] was trying to hinder a police investigation into his conduct". All of the above conduct, the plaintiff submitted, bore a foreseeable risk of harm to the plaintiff. The particulars of negligence that have been pleaded are recited at [7] above.
193The parties accepted that where, as in the present case, the question of liability for psychiatric injury to an employee arises, the central inquiry is whether, in all the circumstances, the risk of the plaintiff "sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful": Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 at 57 [33]. It was said in the joint judgment (McHugh, Gummow, Hayne, Callinan and Heydon JJ) in Koehler at 57 [35]:
"The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. ... the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned."
194The inquiry into breach is prospective: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422. In Nationwide News Pty Ltd v Naidu Spigelman CJ said at [20] - [21]:
"The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.
Koehler affirms the line of High Court authority, including, Tame and Gifford , which focuses attention on the purpose for which the inquiry as to foreseeability is undertaken, namely, to determine what reasonableness requires by way of response and, therefore, whether legal responsibility for the conduct should be attributed to the defendant for the injury to the plaintiff."
195The first defendant recognised that he had a duty of care to protect an employee against bullying and harassment at work and to provide a safe workplace. The Speaker did so by publishing the policies mentioned at [19] - [23] above and by offering the plaintiff the opportunity to attend various courses, which included sessions on workplace stress and managing difficult behaviours. The enquiry by Ms Davies after the 'smelly bomb' incident as to whether there was anything that she could do to make the office safer and the earlier information and encouragement provided by 'Lyndall Davis', during the apprehended violence proceedings, for the plaintiff to attend counselling indicates that the first defendant was anxious to ensure that the workplace safety policies were implemented and the plaintiff was supported.
196As was contended by Ms Norton, no evidence was adduced by the plaintiff to suggest either that the systems and procedures implemented by the Speaker were deficient or that there were other measures available to the first defendant which, if implemented, would have given rise to a different outcome for the plaintiff. I reject the assertion of breach of duty founded upon a failure to provide a proper and safe system of work for electorate officers. There is no evidence that the various policies did not apply to the third defendant. The Electorate Office Personnel - Workplace Stress policy suggests the contrary. The policy, inter alia, provides (ex B TB 73):
"This policy has been developed to assist Members in the prevention and management of workplace stress in their electorate offices" (italics added).
197I have also found that the first defendant did not betray the plaintiff's confidences nor did the Speaker prioritise the interests of the third defendant.
198The plaintiff did not notify the first defendant that she had been harassed by the third defendant or anybody else in the electorate office and her first complaint that she was suffering from stress as a result of her office situation was made to Mr Saunders in the telephone conversation on 11 September 2006.
199None of the Application for Leave Forms disclosed that she was suffering from a psychiatric injury nor were there any signs that were presented by the plaintiff to her employer, indicating that the risk of psychiatric injury had appeared. Although the first defendant had been aware that the plaintiff had taken a week off work in May 2004 as a result of the stress she was experiencing in dealing with Mr Bridge and her perception of lack of support, the first defendant was entitled to assume that she had recovered and was able to perform the duties required of her at work without putting her health at risk. In the absence of complaint by the plaintiff about the third defendant's behaviour, the Speaker was, furthermore, entitled to assume that there was no difficulty in the relationship between her and the Member for Swansea. In all the circumstances, the risk of the plaintiff sustaining a psychiatric illness was not reasonably foreseeable. The plaintiff has not established a breach of duty of care by the first defendant prior to the telephone conversation on 11 September 2006 with Mr Saunders. She accepted in cross-examination that by that time she was "quite unwell": T96.21-22.
200I am of the opinion, however, that after the telephone call of 11 September 2006, there was reason for the Speaker to be aware of the risk to the plaintiff's psychiatric health. Mr Saunders was told by the plaintiff of her stress, anxiety and chest pains, as a result of the office situation and her feelings of isolation and lack of support. He was provided with details of the deterioration in the relationship with the Member for Swansea and of the police investigation. The WorkCover Medical Certificate that was received on 21 September 2006 by the employer recorded Dr Suefong's diagnosis of "Anxiety Disorder/Anxiety - depression - work related": ex B TB 139. During the telephone conversation of 19 September 2006, Mr Saunders recorded that he was provided with details by the plaintiff of "some of the events that have led to her psychological injury" as she believes that she is being treated like a "traitor": ex B TB 140. He also records that he "informed Elaine of conversation with Gillian". 'Elaine' was Ms Schofield. It would have been plain to reasonable people in the position of Mr Saunders and Ms Schofield that the plaintiff was suffering from a psychiatric illness.
201Ms Schofield's entries in the Briefing Note that are quoted at [111] above record that she had contacted the electorate office staff on 28 September 2006 to advise them of the decision to change the locks but no attempt was made to contact the plaintiff until 3 or 4 October 2006. By that time, the locks had been changed for a number of days and the plaintiff had not been informed. There is no other documentary material which supports Ms Schofield's entry in the Briefing Note that the staff had been advised that the plaintiff should have access to the office and given every assistance in relation to her workers compensation claim and return to work. The only communication on this topic from Ms Schofield in the documentation is an email from her to David Auert of 28 September 2006 asking him to liaise with Ms Calder: ex B TB 142. The reactions by Ms Calder and Ms Mathieu to the plaintiff's attendance at the office on 4 October 2006 indicate a lack of instruction to them or a lack of understanding that they were to be of assistance to the plaintiff. I conclude on the balance of probabilities that either Ms Schofield did not instruct the electorate office staff as she recorded or if she did that they did not understand the instruction.
202The risk that being locked out of the electorate office without explanation would add both to the plaintiff's perception that she was being treated like a traitor and to her sense of isolation and would heighten her psychiatric illness ought reasonably to have been foreseen by Ms Schofield. She should have taken reasonable steps to avoid it. I find that the risk of the plaintiff's psychiatric illness being exacerbated by the change of the locks was reasonably foreseeable and the employer was required to take all reasonable steps to ensure that exacerbation did not occur. Reasonable steps included informing the plaintiff prior to the locks being changed and ensuring that the electorate office staff understood that she was to be assisted with her workers compensation claim, which included access to the office. The attempts made by Ms Schofield to contact the plaintiff after the change had been implemented fell well short of a reasonable response to the risk, as did whatever may have been done to communicate with the staff members. The Speaker is vicariously liable for the acts and omissions of Ms Schofield. Accordingly, I am satisfied that the first defendant breached his duty of care to the plaintiff.
The third defendant's duty of care
203Before proceeding further with the issue of vicarious liability, it is necessary to consider the questions of duty and breach in the case against the third defendant, notwithstanding the entry of default judgment against him.
204The plaintiff's role as an Electorate Officer Grade 2 was to support the Member of Parliament and she worked under his direct supervision and management. In my opinion, the duty of care owed by the third defendant was indistinguishable from the employer's duty. The principles enunciated in Czatyrko v Edith Cowan University and Koehler also apply to him.
205In the third defendant's case, the question of breach of duty is governed by the CLA. Section 5B of the CLA provides:
"(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm."
206The question of breach of the third defendant's duty of care is to be approached by considering whether there was a foreseeable risk of psychiatric injury to the plaintiff by his bullying and harassment, whether that risk was not insignificant and by asking, what, if any precautions a reasonable person in the position of the Member for Swansea would have taken against such a risk.
207The third defendant was aware of the stress that the plaintiff had experienced because of the threats made by Mr Bridge. In his letter to the Magistrate he wrote of Mr Bridge's "intimidating behaviour towards [his] office staff": ex B TB 106. It is a reasonable inference to draw from the documentary material that he knew that the plaintiff had taken a week off work because of the stress that had been imposed upon her by Mr Bridge. He knew that the plaintiff's health was at risk when she was subjected to behaviour that went beyond the stress she would normally experience in the performance of her duties. In these circumstances, the plaintiff's failure to complain is insignificant as it was the third defendant who bullied and harassed her notwithstanding his knowledge of the plaintiff's vulnerability to stressful behaviour. His misconduct towards her went beyond that which she would be expected to cope with at work and he ought reasonably to have appreciated that his behaviour was likely to cause psychiatric injury. There was a foreseeable risk of psychiatric injury to the plaintiff, which was not insignificant, and a reasonable person in the third defendant's position would have refrained from such behaviour. In failing to do so, the third defendant breached his duty of care to the plaintiff. The breach of duty that I have identified falls within the particulars of the third defendant's negligence in the statement of claim.
The Speaker's vicarious liability for the third defendant's conduct
208The plaintiff submitted that as the first defendant owed a non-delegable duty to the plaintiff to take reasonable care to avoid exposing her to the unnecessary risk of injury, the Speaker could not evade responsibility for the negligent conduct of the Member for Swansea by merely observing that he was not under the Speaker's control. The plaintiff cited Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672; New South Wales v Lepore and Galea v Bagtrans Pty Ltd . It was put to me that there could be no doubt that the third defendant was the plaintiff's manager and supervisor, which the first defendant knew. The plaintiff contended that it was "a quintessential aspect" of her employment that she was entrusted into the absolute care and control of the third defendant to whom she was required to report. The plaintiff argued that by reason of the nature of her employment, the third defendant was the Speaker's agent or representative at the electorate office. This was particularly so, because the workplace was isolated and the Speaker had no day to day access to or contact with the electorate office staff.
209The first defendant contended that the relationship between the Speaker, the plaintiff and the third defendant bore "some unique hallmarks". It could not be said to be analogous to the traditional labour hire model. It was pointed out that the parliamentary Member was not an employee of the Speaker nor was there a contract between them and the third defendant was not otherwise performing services on the Speaker's behalf. Other matters of significance were the Speaker's lack of control over the Member's conduct and the fact that there was no commercial benefit to the Speaker from the plaintiff's employment. Another matter was that the Speaker did not place her with the third defendant. As the third defendant was not closely connected with anything that he could be said to be doing for and on behalf of the Speaker, it was contended that the Speaker should not be fixed with vicarious liability for the third defendant's conduct. Reliance was placed by the first defendant on what was said in Nationwide News Pty Ltd v Naidu per Spigelman CJ at [91]:
"In the present case, ISS clearly acquiesced in placing Mr Naidu under the direct supervision and authority of Mr Chaloner. Nevertheless, this was in the context in which he was administering a contract on behalf of Nationwide News. ISS had no element of control over Mr Chaloner. His conduct was not closely connected with anything he could be said to be doing for or on behalf of ISS. It should not be fixed with vicarious liability for his conduct."
210There was some cross-over in the arguments advanced by the parties between the notion of vicarious liability and the doctrine of "non-delegability", which is unsurprising as a non-delegable duty "can be seen to be a species of vicarious responsibility": Lepore at [257]. Although the plaintiff referred in written submissions to s 5Q of the CLA, the plaintiff subsequently recognised that s 5Q does not apply.
211Any resolution of the present conundrum involves an analysis of the relationship between the Speaker and a Member of the Legislative Assembly. Such an analysis discloses the following: the Speaker presides over the Legislative Assembly and is elected by its Members. The Clerk of the Legislative Assembly is responsible to the Speaker "for the efficient administration of the Department of the Legislative Assembly and the provision of appropriate, professional support for the effective functioning of the Legislative Assembly and its individual Members": ex B TB 46.
212A Member of Parliament is neither an employee of the Speaker nor an independent contractor. Electorate office staff are employed by the Speaker to enable Members to fulfil their parliamentary and constituency responsibilities. Although the Member selects his or her Grade 2 electorate officer, such an appointment requires the Speaker's approval.
213As has been quoted at [196] above, the Speaker published the Electorate Office Personnel - Workplace Stress policy to assist Members, in the prevention and management of workplace stress in their electorate offices. The policy was developed because the Speaker recognised that workplace stress could disrupt the Member's ability to conduct constituency business. The policy reminded Members and staff of the relief provisions written into the Enterprise Agreement and Members and Staff Guides. Members were told that they "should take advantage of relief entitlements to ensure that their electorate office staff comply with the requirement to take a minimum period of leave in any 12 month period". Furthermore, the policy provided that grievances and disputes should be, wherever possible, resolved between Members and the staff concerned at the electorate office using the grievance and dispute reduction procedures contained in the Enterprise Agreement. Mediation and conciliation "may be taken upon the direction of the Speaker": ex B TB 73 - 75. All matters "relating to terms and conditions of employment, salary or discipline regarding electorate office staff" were required to be submitted to the Speaker "for information and advice prior to any action being taken". Termination of services other than by way of resignation or voluntary withdrawal of services, could only be made by the Speaker: ex B TB 75.
214The relationship between the Speaker and the third defendant does not fit neatly into those cases that have considered the liability of employers for the causal acts of negligence by their servants or by independent contractors entrusted with providing a safe place or system of work. As Ms Norton pointed out, there was no commercial relationship between the Speaker and the third defendant nor was there any commercial benefit to the Speaker from the plaintiff's employment in the electorate office. The relationship between the Speaker and the Member for Swansea is unlike those in which non-delegable duties have been imposed. The Speaker was, however, the plaintiff's employer and he remained subject to a non-delegable duty to exercise reasonable care to provide a safe place of work for her: Kondis v State Transit Authority.
215In Lepore, Gummow and Hayne JJ, in discussing whether the ambit of non-delegable duty should be extended said at [265]:
"Hitherto the duty has been understood to be that the party having the care, supervision or control of others will itself act with reasonable care and will ensure that all others to whom it delegates that task, whether as servant or as independent contractor , act with reasonable care. If the delegate acts without reasonable care, the party who owes the duty is held liable" (italics added).
216The non-delegability of the duty imposes a strict liability on the first defendant for the breach of others: Lepore per Gummow and Hayne JJ at [257] . Strict liability is a reason for caution before expanding the doctrine of "non-delegability" into situations where liability has not previously been imposed. In Scott v Davis [2000] HCA 52; (2000) 204 CLR 333, Gummow J explained at [248] that "some caution is required because the characterisation of a duty as non-delegable involves, in effect, the imposition of strict liability upon the defendant who owes that duty".
217Mr de Meyrick, however, directed my attention to the judgment of Allsop P in Galea . Allsop P remarked at [5].
"The non-delegability of that duty means that the employer is liable for any breach of the duty whoever was retained by Adecco to perform it."
218Before the remarks of Allsop P are considered as a basis for extending the ambit of the non-delegable duty beyond the negligent acts of servants or independent contractors, it should be noted, that case was concerned with the appellant's placement by his employer, Adecco, a labour hire company, as a truck driver with Bagtrans, a truck owner. The facts of that case stand in contradistinction to the present in which there is no commercial relationship.
219Gaudron J in Lepore considered that the only principled basis upon which vicarious liability can be imposed "is that the person against whom liability is asserted is estopped from asserting that the person whose acts are in question was not acting as his or servant, agent or representative when the acts occurred" (at [130]). The test of estoppel was "whether the person in question had acted in such a way that a person in the position of the person seeking the benefit of estoppel would reasonably assume the existence of a particular state of affairs" (at [131]). Her Honour held that in the case of vicarious liability, "the relevant state of affairs is simply that the person whose acts or omissions are in question was acting as the servant, agent or representative against whom liability is asserted" (at [131]).
220In Nationwide News Pty Ltd v Naidu , Spigelman CJ at [90] noted the emphasis given to the element of control in the joint judgment in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 which the Chief Justice said "in part explained the traditional differentiation between the position of an employee and of an independent contractor".
221The notion of control is, without doubt, an important factor underlying vicarious liability, but is not the only relevant factor: Hollis v Vabu Pty Ltd at [45]. The joint judgment (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) cited at [44] what was said in Stevens v Brodribb Sawmilling Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 by Mason J at 29:
"Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered " (italics added).
222In Galea, Allsop P examined the totality of the relationship between Adecco and Bagtrans and considered that Adecco's inability to control the truck owner's maintenance of its equipment did not determine the employer's liability. Allsop P said at [6]:
"Of course, in examining whether an employer has breached the duty, notions of reasonableness as to what the employer can control are relevant. However, care should be taken not to confuse the assessment of whether an employer has personally exercised reasonable care with whether reasonable care was exercised. Here, the employer placed Mr Galea with Bagtrans, in effect, to work for Bagtrans. The place of work, the system of work and the plant and equipment for work for Mr Galea's employment with Adecco were those of Bagtrans. Thus, Adecco's non-delegable duty was breached if Bagtrans failed to exercise care in their provision. It is not to the point to say that Adecco could not control how Bagtrans maintained its equipment or what system it had for the repair of truck seats. Adecco placed Mr Galea at Bagtrans for his employment with it, Adecco. The plant and equipment (the seat on the truck) were not maintained with due care and the system of work and the plant and equipment were unsafe. That Adecco might not be personally at fault (which Hodgson JA's reasons show is not the case) is not to the point: TNT at 10-16 [45]-[70]. This breach will include the negligent maintenance of equipment. Maintenance of equipment is part of the duty to exercise care in providing safe equipment. The duty cannot be delegated."
223I do think that the present question can be resolved by the application of the principles of vicarious liability.
224The totality of the relationship includes the employment of the plaintiff by the Speaker to work under the direction, supervision and management of the third defendant at the electorate office. I do not consider that it makes a difference that the Speaker did not select the plaintiff as he approved her appointment. By the terms of the plaintiff's employment to work under the Member for Swansea's direction and management, the Speaker delegated to the parliamentary Member as his representative, the duty of care to provide a safe place of work. Whilst it is accepted that there was no economic benefit to either the first or third defendant in this arrangement, there was a mutuality of interest in the effective functioning of the Legislative Assembly and of the parliamentary and constituency duties of the Member for Swansea.
225It seems to me that it is not entirely correct to say that the Speaker lacked control over the Member's conduct. Although the Speaker did not have control over the third defendant's performance of his parliamentary duties, he sought to exercise control over the Members of the Legislative Assembly's behaviour towards their electorate office staff by the publication of the Electorate Office Personnel Workplace Stress policy.
226I conclude that the third defendant was acting as the Speaker's representative at the time of his misconduct and the first defendant is liable for the third defendant's negligence.
Is the State of New South Wales liable?
227It is unnecessary to deal at length with the plaintiff's argument founded upon the entry of default judgment against the third defendant as I have found that he breached his duty of care to the plaintiff. I consider it convenient, however, to state that the plaintiff's argument on this issue was not, in my opinion, soundly based. I agree with the second defendant's submissions that the default judgment is interlocutory in nature and open to review in the light of evidence adduced during the hearing. When considering the case against the second defendant, the court is not obliged to act on admissions claimed to have arisen from the third defendant's failure to file a defence and the consequential obtaining of default judgment against him, but can act upon the evidence: Termijtelen v Van Arkel (1974) 1 NSWLR 525 per Hope JA at 529 - 531. It would be contrary to principle and a denial of procedural fairness if liability was found against the second defendant because the third defendant did not defend the case, but the plaintiff had not established his negligence.
228The primary contention made for the plaintiff is that the second defendant is liable for damages payable by the third defendant because of the operation of s 5 Crown Proceedings Act 1988. Another contention is that the second defendant is vicariously liable by reason of s 8 Law Reform (Vicarious Liability) Act 1983.
229Mr de Meyrick submitted that, as a Minister of the Crown and member of the Government, the third defendant's actions in pursuit of his duties are deemed to be the actions of the Crown, by reason of s 5 Crown Proceedings Act , making the second defendant directly liable in tort for those actions. The plaintiff's position was clarified in oral argument when Mr de Meyrick said that he did not advance an argument of strict liability but the Crown's liability arose from the third defendant's misconduct "in the course of managing staff and in the course of duties as a member of the Government and Minister of the Crown": T164.39-41.
230Mr Lindsay submitted that the plaintiff's claim against the State was based upon the false premise that, under the constitutional arrangements in New South Wales, it was open to the Executive Government to exercise control over the manner in which a Member of Parliament discharges his or her duties as a parliamentarian and the Executive Government had no such power. A fundamental flaw in the plaintiff's case was said to be that legal liability for the private conduct of the third defendant, or for his conduct as a Member, could not be imposed on the second defendant in favour of the plaintiff without recognising in the Executive Government the power and a duty to control the conduct of business in and from the electorate office of each and every parliamentary Member. This was said to be incompatible with the functioning of Parliament as an institution independent of the Executive. Mr Lindsay submitted that under the constitutional arrangements operating in New South Wales the plaintiff's entitlements must be against the third defendant or the first defendant and the duty of care alleged against the State was novel and legally incoherent.
231As to the plaintiff's argument founded upon s 5 Crown Proceedings Act, Mr Lindsay contended that the section does not operate to impose on the Crown liability for the tortious conduct of any person undertaken in his or her personal capacity. A court must make allowance for limitations on the liability of the Crown arising from the nature and responsibilities of governments, and those of its citizens. Furthermore, it was incumbent upon the plaintiff to establish that at all material times the third defendant was acting in an "official" capacity of some character. Mr Lindsay submitted that it was necessary for the plaintiff to identify a person acting with the "capacity" and the "authority" of the Crown in relation to the particular conduct of business of the Crown. He argued that the Crown had no part to play in the conduct of the third defendant's electorate office and the third defendant lacked the capacity and authority to act on behalf of the Crown in that context. None of the third defendant's activities in that context were capable of being characterised as the conduct of business of the Crown.
232Senior counsel for the second defendant further submitted that s 8 Law Reform (Vicarious Liability) Act does not impose vicarious liability on the Crown for the third defendant's actions. For s 8 to have any relevance, the plaintiff must prove that the defendant was "a person in the service of the Crown" rather than a servant of the Crown. Furthermore, the third defendant's actions did not come within s 8(1)(a) or (b) and in the alternative fell within s 8(2).
233Section 5 Crown Proceedings Act is as follows:
"5 Crown may be sued
(1) Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title "State of New South Wales" in any competent court.
(2) Civil proceedings against the Crown shall be commenced in the same way, and the proceedings and rights of the parties in the case shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side, and shall bear interest, as in an ordinary case between subject and subject."
234A definition of the Crown is found in s 3:
3 Definitions
"In this Act:
...
"Crown" means the Crown in right of New South Wales, and includes:
(a) the Government of New South Wales, and
(b) a Minister of the Crown in right of New South Wales, and
(c) a statutory corporation, or other body, representing the Crown in right of New South Wales."
235Before wrestling with the difficult questions of statutory interpretation, I do make it clear that the second defendant was not negligent in any of the ways particularised in par 18 of the statement of claim: see [7] above. The facts in this case do not support a finding that the State, apart from liability under statute (if any), owed to the plaintiff a duty to take reasonable care to avoid harm or injury. The Speaker, as her employer, not the State, had a non-delegable duty to exercise reasonable care to provide a safe place of work. The Member for Swansea, however, breached the duty of care that he owed to the plaintiff.
236At common law there was in general no remedy against the Crown in tort. As the second defendant pointed out, the Crown generally could not be held liable for the tortious conduct of a servant or agent and a judgment against a servant of the Crown was a judgment against his private capacity, not enforceable against property of the Crown: Glanville Williams, Crown Proceedings (London, 1948) pages 16 -20.
237What then is to be made of the Crown Proceedings Act ? Section 5 permits a person who has a lawful entitlement to bring proceedings against the Crown, to sue as a named defendant the State of New South Wales. The definition of "Crown" includes "a Minister of the Crown in right of New South Wales": s 3(b). The third defendant was the Minister for Aboriginal Affairs and the Minister Assisting the Premier on Citizenship and was a Minister of the Crown. Authority suggests that "in right of New South Wales" means in right of the polity constituted by the State Government: see for example: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 at 152 - 153 and at 159; McNamara v Consumer, Trader and Tenancy Tribunal [2005] HCA 55; (2005) 221 CLR 646 at [54]. But that does not mean that the plaintiff is entitled to succeed against the State for the tortious acts of the third defendant.
238The scope of the Crown's obligation for the acts of its officers and Ministers has received consideration in contractual disputes. The liability of the Crown on a contract made by a Minister of the Crown was held to be confined to a contract made in the course of the administration of his department: Minister for Youth and Community Services v Health and Research Employees' Association (1987) 10 NSWLR 534 per McHugh JA at 556. McHugh JA said at 556:
"The general principles concerning the liability of the Crown for contracts made by its officers and ministers were explained by Starke J in New South Wales v Bardolph (at 502) when he said:
'... contracts made on behalf of the Crown by its officers or servants in the established course of their authority and duty are Crown contracts, and as such bind the Crown. The nature and extent of the authority may be defined by constitutional practice or express instructions, or inferred from the nature of the office or the duties entrusted to the particular office or servant. It is not every contract made or purporting to have been made by an officer or servant of the Crown on its behalf that will bind the Crown, but only such as are within the authority delegated to that officer or servant. The authority is a matter which ultimately falls for determination in the Courts of law ....'"
239In matters of tort, the Crown was not considered liable "if the tortfeasor was executing an independent duty that which the law cast upon him": Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626 per Gibbs CJ at 639. In the course of his judgment, Gibbs CJ cited what was said by Dixon J in Field v Nott [1939] HCA 41; (1939) 62 CLR 660 at 675:
"When a public officer, although a servant of the Crown, is exercising an independent duty which the law casts upon him, the Crown is not liable for the wrongful acts he may commit in the course of his execution. As the law charges him with a discretion and responsibility which rests upon him in virtue of his office or of some designation under the law, he alone is liable for any breach of duty."
240The tortious acts of the third defendant were not committed in the course of the administration of his departments as Minister but when he was exercising an independent duty of care that the law imposed upon him: see [207] above and when he was acting as the Speaker's representative: see [226] above. His misconduct was not associated with the performance or purported performance of his function as a Minister and did not fall within the scope of his capacity or authority as a Minister of the Crown in right of the State.
241Some reliance seems to have been placed by the plaintiff on the inclusion in the definition of "Crown" in s 3 Crown Proceedings Act of "the Government of New South Wales". In Ryder v Foley [1906] HCA 61; (1906) 4 CLR 422, Griffith CJ in discussing the word "Government", not in the context of section 3, but in relation to the Police Act 1863 (Qld), said at 432:
"The word "Government" is not a term of art, and I think it is difficult to hold it to be synonymous with Governor in Council, when one has regard to the manner in which the Executive Government of the country is carried on under the system which we call Constitutional Government. The Crown, that is, the head of the Executive Government, in whose name everything is done, does not act in person, it acts through responsible officers, to whom the powers of Government are delegated, and, as a matter of fact, ninety-nine hundredths of the work of the Executive Government is done by those responsible officers on their own individual responsibility without consulting the Governor in Council."
242In Holly v Director of Public Works (1988) 14 NSWLR 140, Mahoney JA explained at 145:
"Under the general law, the Crown acted through those whom it chose to appoint to act for it. In practice, under the system of responsible government adopted in New South Wales, the acts of the Crown were performed for it by its responsible Ministers, in the manner referred to by Griffith CJ in the much cited case of Ryder v Foley (1906) 4 CLR 422 at 432-433."
243Although the third defendant was, as a Minister, a member of the Government of New South Wales and the acts of the Government may be performed by the proper responsible Minister, none of his tortious acts were performed in the exercise or purported exercise of the powers of the Government and the Crown is not responsible for them. In my opinion, the Crown is not liable for the third defendant's misconduct unless vicarious liability is established under s 8 Law Reform (Vicarious Liability) Act, to which I now turn.
244Section 5 Law Reform (Vicarious Liability) Act relevantly provides:
" 5 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
...
"Crown" means the Crown in right of New South Wales.
"independent function", in relation to a servant or a person in the service of the Crown , means a function conferred or imposed upon the servant or person, whether or not as the holder of an office , by the common law or statute independently of the will of the servant's master or the Crown , as the case may require.
...
"person in the service of the Crown" does not include a servant of the Crown .
(2) In this Act, a reference to:
(a) a function includes a reference to a power, authority and duty, and
(b) the performance of a function includes a reference to the exercise of the function and the failure to perform or exercise the function."
245Section 8 is as follows:
" Further vicarious liability of the Crown.
8. (1) Notwithstanding any law to the contrary, the Crown is vicariously
liable in respect of a tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function-
(a) is in the course of his service with the Crown or is an incident of his service (whether or not it was a term of his appointment to the service of the Crown that he perform the function); or
(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown.
(2) Subsection (1) does not apply to or in respect of a tort committed
by a person in the conduct of any business, enterprise, undertaking or activity which is-
(a) carried on by him on his own account: or
(b) carried on by any partnership, of which he is a member, on
account of the partnership."
246The definition of the Crown in s 5 is not as wide as that defined in s 3 Crown Proceedings Act . It neither includes the State Government nor a Minister of the Crown in the right of the Crown. Section 5 defines that a person in the service of the Crown does not include a servant of the Crown.
247Previous judicial consideration of s 8 has concluded that there are three essential ingredients before the section applies: Prior v State of New South Wales NSWCA unreported, 23 October 1998; State of NSW v Wayne Eade [2006] NSWSC 84. The plaintiff must establish:
(i) a tort committed by a person in the service of the Crown [which does not include a servant of the Crown];
(ii) the person was actually or purportedly performing a function; and
(iii) the tort was committed by that person in the performance or purported performance of a function. "Function" is defined in s 5(2) to include a reference to a power, authority and duty, and "the performance of a function" includes a reference to the exercise of the function and the failure to perform or exercise the function.
248A controversial question is whether the third defendant was "a servant of the Crown" and not "a person in the service of the Crown". Unfortunately, neither s 5 nor any other provision of the Act defines who is a servant of the Crown.
249Some attention was devoted to this subject in Glanville Williams' Crown Proceedings . A Minister of the Crown was considered to be a servant of the Crown, but not an inferior servant: see p 3. When discussing the Crown Proceedings Act 1947 (UK), the author wrote at p 30:
"It will be noticed that this subsection refers to an 'officer of the Crown'. This phrase is defined in section 38(2) to 'include' any servant of the Crown, and so to include a Minister of the Crown."
250The meaning of the word "officer" in s 38(2) of that Act was in the following terms:
"Officer, in relation to the Crown, includes any servant of His Majesty, and accordingly (but without prejudice to the generality of the foregoing provision) includes a Minster of the Crown [and a member of the Scottish Executive]" (italics added).
251The word " accordingly " in s 38(2) indicates to me that a Minister of the Crown has been long regarded as a servant of the Crown.
252In Holly v Director of Public Works , Mahoney AJ when considering the relationship which exists between those acting in the service of the Crown and the Crown said at 147:
"As I have indicated, either of these relationships may be brought into
existence in a number of ways and by a number of different kinds of persons. Thus, a person may be appointed to an office in the service of the Crown or enter into a contract of employment as the result of a formal act of the Crown itself: in New South Wales that will ordinarily be done by the Governor with the advice of the Executive Council under the Constitution Act 1902. The relationship may be created because of what a Minister or other authorised servant of the Crown does within the scope of his authority , in the sense referred to by Griffith CJ in Ryder v Foley (at 432 et seq)" (italics added).
253Mahoney AJ referred to those persons who may act in Crown's service because they have been appointed to an office in which they act in that way: for example a police constable, or to those persons who may act in the Crown's service because of a contract of employment made with the Crown: Holly v Director of Public Works. Neither a Minister of the Crown nor a Member of Parliament has been appointed to an office in the service of the Crown nor has either a Minister or a Member entered into a contract of employment with the Crown. Another consideration is that the Constitution Act 1902 makes reference to the appointment of Ministers of the Crown in s 35E and to the appointment of "officers' in s 48. In s 48, an "officer" is defined to mean:
"an officer in the service of the Crown or of an authority of the State, but does not include the Governor, the Lieutenant-Governor or other officer administering the government of the State, a member of the Executive Council, a Minister of the Crown or the holder of a judicial office" (italics added).
The definition of an officer in the service of the Crown does not include a Minister of the Crown.
254My conclusion is that the third defendant as a Minister was a servant of the Crown and not in the service of the Crown.
255I do not think that a Member of Parliament is a person in the service of the Crown. He is an elected representative of the people. The doctrine of responsible government is part of the Australian constitutional law: R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254; Egan v Chadwick [1999] NSWCA 176; (1999) 46 NSWLR 563. Spigelman CJ in Egan v Chadwick at [24] cited what was said by Isaacs J in Horne v Barber [1920] HCA 33; (1920) 27 CLR 494 at 500:
"When a man becomes a member of Parliament, he undertakes high public duties. Those duties are inseparable from the position: he cannot retain the honour and divest himself of the duty. One of the duties is that of watching on behalf of the general community the conduct of the Executive, of criticising it, and, if necessary, of calling it to account in the constitutional way by censure from his place in Parliament - censure which, if sufficiently supported, means removal from office. That is the whole essence of responsible government which is the keystone of our political system and is the main constitutional safeguard the community possesses."
256In R v Boston [1923] HCA 59; (1923) 33 CLR 386, Isaacs and Rich JJ said at 402:
" A member of Parliament is, therefore, in the highest sense, a servant of the State ; his duties are those appertaining to the position he fills, a position of no transient or temporary existence, a position forming a recognized place in the constitutional machinery of government" (italics added).
257The plaintiff has not established that the third defendant's misconduct was committed by a person in the service of the Crown. As an essential ingredient of s 8 has not been met, the Crown is not vicariously liable for the tortious acts of the third defendant. Accordingly, the plaintiff's claim against the State of New South Wales fails.
Causation
258The issue of causation in the plaintiff's claim against the second and third defendants is to be dealt with in accordance with s 5D CLA whereas as against the first defendant the common law approach to causation enunciated by Mason CJ in March v E & M H Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506 as being "ultimately a matter of common sense" continues to apply. No argument was advanced either for the Speaker or for the State that the plaintiff had a pre-existing psychiatric illness. As no controversial questions of causation arise in the present proceedings, I will deal with the issue succinctly.
259I accept Dr Murray's diagnosis that the plaintiff suffered Major Depression, Panic Disorder with Agoraphobia and Generalised Anxiety Disorder. I am satisfied on the balance of probabilities that the third defendant's bullying and harassment was a necessary condition of the occurrence of her psychiatric injury: s 5D(1)(a) CLA. Furthermore, I am satisfied that it is appropriate for the scope of the Member for Swansea's liability to extend to the psychiatric injury: s 5D(1)(b) CLA.
260I do not hesitate to find that the first defendant's negligence (see [202] above) exacerbated the psychiatric injury and materially contributed to the harm that the plaintiff ultimately suffered.
Breach of Contract
261The question of a breach of contract did not receive much consideration during argument as attention was focussed upon questions of negligence. Nevertheless, it is necessary to state my conclusions upon this issue. The plaintiff asserts in par 21 of the statement of claim that her employment contract included an implied term that the first defendant "would comply with the Parliamentary Staff Code of Conduct, Parliament's Harassment Free Workplace Policy, the Electorate Office Personnel - Workplace Stress Policy and Parliament's OH&S Policy ". The first defendant's argument was that there was no basis for the implication of such a term and the court's attention was drawn to the well established test for the implication of a term into a contract: see BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283.
262There is no necessity for a term of the character that is asserted by the plaintiff, to give business efficacy to the contract. The Speaker was already obliged to provide a safe system of work. Furthermore, the term is not so obvious that "it goes without saying". I decline to find that such a term was implied. Accordingly, the plaintiff's claim of contractual breach fails.
Breach of Statutory Duty
263The plaintiff pleaded, further and in the alternative, that her damages were caused by breaches of statutory duty. A general assertion was made that the breach was a failure to comply with the Occupational Health and Safety Act 2000 and the Occupational Health and Safety Regulation 2001 but what provisions of this legislation were breached was not particularised. No evidence was adduced in the plaintiff's case to establish that the Speaker breached his statutory duty nor was there evidence that established that either the second defendant or the third defendant owed such a duty to the plaintiff. In any event, the policies, systems, and procedures implemented by the Speaker and made available to the plaintiff more than satisfied the Speaker's statutory obligations to her: see [19] - [23], and [29] above. The claims founded upon statutory duty have not been made out.
Damages
264Damages are to be assessed in the plaintiff's claim against the first defendant, in accordance with the operation of the "modified common law damages" under Division 3 of Part 5 of the Workers Compensation Act 1987. There is no dispute that the plaintiff's claim for the first defendant's negligence is confined to past and future economic loss, loss of superannuation, a component for Fox v Wood and interest on past loss of income. As against the second and third defendants, damages are to be assessed in accordance with the provisions of Part 2 CLA.
265The plaintiff's claims under each head of damages are detailed in schedules A and B to the written submissions dated 7 March 2011. I confirm my finding that the claim against the second defendant has been unsuccessful, but make mention of the proper basis of an assessment of damages against the State, should my conclusion be subsequently found to be an error. Common law damages, aggravated and exemplary damages do not arise for assessment, as the intentional tort claim has been unsuccessful.
The Plaintiff's Prognosis
266I have found that the plaintiff has substantially recovered and will eventually achieve a full recovery: see [185] - [187] above. Whilst I do find that she has not fully recovered from her psychiatric illness, my conclusion is that she is well advanced on that journey. I have indicated at [187] above my acceptance of Dr Murray's opinion that once legal matters are finalised, he expected the plaintiff to make "her own way in regard to occupation and re-ordering of her private life, with the eventual result that she achieves full recovery": see [141] above. The intelligence, articulation, concentration and energy that the plaintiff displayed as a witness and her parliamentary candidature, point to a full recovery being attained not too long after these proceedings are concluded. Another finding is that the plaintiff has not established that she is, or is likely to remain, totally incapacitated for work: see [184] - [187] above.
Non-Economic Loss
267This head of damage does not apply to the first defendant. The plaintiff submitted that she was entitled to damages for non-economic loss assessed at 30 per cent of a most extreme case pursuant to s 16 CLA. Mr de Meyrick drew my attention to Dr Steele's assessment of 17 per cent whole person impairment and contended that an assessment under s 16 CLA must be higher as different considerations apply.
268I am satisfied, however, that Dr Steele's assessment was over pessimistic and the plaintiff's impairment has diminished greatly since that time. The plaintiff is now very different to the lethargic, depressed and unmotivated person who was examined by Dr Steele on 3 June 2008.
269The second defendant argued that the plaintiff's claim did not arise above the threshold of 15 per cent of a most extreme case. The current maximum amount recoverable for non-economic loss under s 16 is $500,500.00.
270The task under s 16 CLA is to determine the severity of the plaintiff's economic loss by reference to a "most extreme case". An assessment under s 16 CLA includes pain and suffering and loss of amenities of life. Amongst the matters that bear upon the assessment of non-economic loss are; the plaintiff's hospitalisation for about a month in 2007 and that she has not fully recovered after some five years of illness. She is 54 years old. However, her recovery has been substantial and full recovery is, on the balance of probabilities, not too far away. I do not consider the plaintiff's non-economic loss to be 30 per cent of a most extreme case. I assess the severity of her non-economic loss to be 16 per cent of a most extreme case and award damages in the sum of $7,500.00 under this head.
Past Economic Loss
271In the plaintiff's schedule of damages, the quantification of this head of damage is calculated upon her full pre-injury wage until the date of hearing. Ms Norton informed me that she made no submission that the mathematics provided in the plaintiff's schedule for past economic loss were wrong. Ms Norton, however, argued that the Speaker should only be liable at the full pre-injury wage rate for a nominal period of time and then any award of past economic loss, should be significantly discontinued to reflect the plaintiff's ability for some time, to return to her pre-injury duties. My attention was drawn to the report of Dr Mitchell and Mr Brown dated 29 August 2007 in which the authors of the report concluded that the plaintiff was fit to work at a high level in office administration or in any other form of suitable work: see [145] above. The second defendant contended that whether or not the plaintiff was earlier unfit for work, she was in fact fit no later than November 2010 (or on the basis of ex 2D2, 6 December 2010) when she decided to stand for Parliament.
272I give little weight to the opinions of Dr Mitchell and Mr Brown that the plaintiff was fit for work in August 2007 as within two months of that assessment, she was admitted to the Lakeside Clinic, following upon an exacerbation of her depressive illness. Although there is an initial attraction to the second defendant's contention that the plaintiff was fit for work from the time of her decision to stand for Parliament, I do not accept it. It is the ability to campaign without illness, not the formation of an intention to stand that leads to a conclusion of fitness to work. By the time Dr Suefong considered that the plaintiff was fit for suitable duties, she had demonstrated that she was able to endure the rigours of a political campaign.
273Neither Ms Norton nor Mr Lindsay submitted that the plaintiff would have lost her employment as an electorate officer when the third defendant resigned from Parliament. The terms of her employment did provide that it could be terminated "upon the end of office held by the Member". It may be that senior counsel for the Speaker and the State did not raise this question as Mr Coombs made no changes to his electorate office staff and continued the employment of Ms Mathieu and Ms Calder. In any event, Dr Mitchell and Mr Brown considered that the plaintiff's transferable skills demonstrated that "she could easily run an office in many different contexts": ex 1D2 TB 42. Their analysis of suitable work options indicates that if the plaintiff's employment as an electorate officer had come to an end upon the third defendant's resignation, it is more probable than not that, but for her depressive illness, she would have obtained employment with a salary close to that of an Electorate Officer Grade 2.
274I am satisfied on the balance of probabilities that the plaintiff's past wage loss is to be assessed at her full pre-injury rate until 22 February 2011. I have not allowed any amount for a partial wage loss from that date until completion of the hearing as the plaintiff was campaigning to be elected to Parliament. No submission was made for the Speaker that s 151I(2) Workers Compensation Act applied to the claim for past (or future) loss of earnings, as the plaintiff's earnings did not exceed "the maximum amount of weekly payments under s 35".
275I award damages for past wage loss as follows:
(a)41 weeks from 13/9/2006 to 30/6/2007 at $988.61 npw* $41,027.32
(b)52 weeks from 1/7/2007 to 30/6/2008 at $1,039.01 " " $54,028.52
(c)52 weeks from 1/7/2008 to 30/6/2009 at $1,087.95 " " $56,573.40
(d)52 weeks from 1/7/2009 to 30/6/2010 at $1,129.74 " " $58,746.48
(e)33 weeks, 5 days from 1/7/2010 to
22/2/2011 at $1,175.96 " " $39,646.65
$250,022.37