State of NSW v Coffey

COUNSEL : A: Mr Burbidge QC with Mr Wynyard R: Mr Toomey QC with Mr Walker SOLICITORS : A: Gillis Delaney Brown R: Denis M Amderson CATCHWORDS : District Court - psychologically injured worker - safe system of work - appeal allowed. CASES CITED: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Pioneer Construction Material Pty Ltd v Millsom [2002] NSWCA 258 (unreported, 28 August 2002) DECISION : 1. Appeal allowed; 2. Judgment and verdict below set aside; 3. In lieu of verdict for the plaintiff in the amount of $463,947.00, verdict for the plaintiff in the amount of $459,478.0; 4. The appellant to pay the costs of the appeal, and of the trial.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40957 of 2001

MEAGHER JA HEYDON JA IPP JA

Thursday, 7 November 2002 STATE OF NEW SOUTH WALES v COFFEY

Facts The respondent, Mr Coffey, worked as a caretaker/manager of blocks of Housing Commission flats in Surry Hills from July 1988 to December 1996. During this period, the tenants subjected him to abuse, threats and various accusations. The respondent also had the misfortune of witnessing a number of murders or suicides, the result of which he had to deal with. On several occasions, the respondent requested that security screens be erected on the counter, but his requests were denied. He also asked for legal support, but got none. When the respondent left his job in 1996, he was suffering depression, post traumatic stress disorder and chronic dysthymia.

There was evidence (in the form of an expert report), which the trial judge accepted, that the appellant could have provided the respondent with a grille over the counter, as well as systematic counselling. The appellant did not oppose the admission of this document; nor did they seek to cross-examine on it or lead any evidence to the contrary.

The appellant did have, and provided on one occasion, a counselling service to the respondent. At all times, he could have asked, but did not, for further therapy. On appeal, the appellant admitted the duty it owed to the respondent, and could not deny the breach as found by the trial judge.

Held A psychologically injured worker often either does not know of his condition or else is too tired to ask for it. Moreover, merely to provide a service to be availed of at the will of the worker does not absolve an employer from performing his duty of care to take reasonable steps to ensure that a safe system of work is in place: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301.

Orders

1. Appeal allowed;
2. Judgment and verdict below set aside;
3. In lieu of verdict for the plaintiff in the amount of $463 947.00, verdict for the plaintiff in the amount of $459 478.00
4. The appellant to pay the costs of the appeal, and of the trial.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40957 of 2001

MEAGHER JA HEYDON JA IPP JA

Thursday, 7 November 2002 STATE OF NEW SOUTH WALES v COFFEY Judgment 1 MEAGHER JA: This is an appeal by the State of New South Wales against a judgment by Hosking DCJ in an action in which Mr Coffey (the present respondent) obtained a judgment against it in the sum of $463,947.00. He worked as a caretaker/manager/concierge of blocks of Housing Commission flats, first at "The Pottery" Belvoir Street, Surry Hills, Sydney; and then, from July 1988 to December 1996, at the "John Northcott Flats" in the same street. 2 The inhabitants of these flats were a motley crew. Many of them had psychiatric disorders. Some of them had been patients at institutions. Some were addicted to drugs or alcohol, or both. Most of them were foreigners, and many of them were female. 3 Mr Coffey's duties were wide and varied. He was responsible for the signing of leases, maintenance of the properties, control of rent arrears (which were always considerable), the investigation of nuisances, the prevention of unauthorised persons living in the buildings, supervising contractors, arranging for the transfers of tenants and liaising with fire brigades, social workers and the police. 4 He worked in an office which had an open counter. Tenants would come to the counter, and abuse and threaten him. One tenant used to yell at him, flourish a knife and threaten to kill him. Equally unpleasant was the experience of being bombarded with letters from Mrs Clover Moore MLA, falsely accusing him of manifold irregularities. On an occasion he received a summons accusing him of assault. 5 He asked for security screens to be erected on the counter, but they were not. He asked for legal support, but got none. 6 But that is only the lesser side of his tribulations. 7 What was far worse was the number of murders or suicides the results of which Mr Coffey had to deal with. He gave a list of about 13 such cases, and said in evidence he could add extensively to that list. Many of the details are disgusting: identifying five half-faceless bodies, identifying a corpse who had been hanging for about 5 weeks in his room, cleaning up the footpath after a large lady had jumped 4 storeys to her doom. Worst of all was cleaning up the mess after the corpse had been removed. 8 When he left his job in 1996 he was suffering depression, post traumatic stress disorder and chronic dysthymia. There is no evidence that he was other than of normal fortitude before he was employed. 9 It is only common sense that the Department of Housing, which is a branch of the appellant State, and which received notification and details of each incident as it happened, could reasonably have foreseen that a person in Mr Coffey's position, if left without support, would suffer at least some stress, and if the experience were long enough and the incidents repeated often enough, the stress would slide into the sort of psychiatric injuries which I have listed. 10 The plaintiff, Mr Coffey, alleged that there was something which the appellant could have done about it, but did not. It could have rotated Mr Coffey into other jobs, it could have provided him with a grille over the counter of his office, and - most importantly - it could have provided him with some sort of systematic counselling. 11 There was evidence before his Honour, which he evidently accepted, of the general desirability of such steps. For example, Dr T O Clark, in a report stated 13 April 2000, said: "They should be trained and counselled to deal with such situations. Many young people are inexperienced and frightened of the clientele and staff are attacked. From time to time there should be retraining and re-counselling. The process would be ongoing. There should be post-traumatic counselling. This is anyway automatic under WorkCover rules, similar to State Rail practice in this area. There should be a system by which employees in the "firing line" are kept under some form of observation or monitoring to avoid "a final crack up", as the vernacular has it. A regular review of coping styles, skills and how the workers are effecting (sic) this should be part of quality assurance. There should be a system of rotating people in and out of these positions every so often to relieve the stress on them. This applies particularly to all the high-density housing projects. As far as I have been informed none of these strategies have been instituted in the Department. Counselling is offered but it is up to the individual to seek it out. All other service providers be it police, ambulance persons, fire or SES officers all go in pairs when working in Housing Commission projects. However Housing Commission staff have no such consideration."

The admission of this document into evidence was not opposed by the appellant; the appellant did not seek to cross-examine on it; nor did the appellant lead any evidence to the contrary. I might add that there was much other evidence which supported Dr Clark's view. 12 Nor was evidence wanting that such steps would have been effective in Mr Coffey's case. On 6 April 2000 Dr Hassim opined, in an equally unchallenged report, "I am also of the opinion that the lack of any type of trauma counselling during the early years of his employment after suicides and murders significantly contributed to his PTSD in the long term." 13 On one occasion in 1996 the appellant did provide a one-hour session of counselling for Mr Coffey, which he found "positive". And, at all times, he could have asked, but did not, for counselling. The appellant did have such a service: up until 1991 it provided one counsellor (for the entire state), later rather more. However, that service was hardly sufficient. A psychologically injured worker often either does not know of his condition or else is too tired to ask for it. Moreover, there is High Court authority that merely to provide a service to be availed of at the will of the worker does not absolve one from performing one's duty of care to take reasonable steps to ensure that a safe system of work is in place: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301. 14 Despite all the efforts of counsel for the appellant to transform this case into a case of great legal importance, it is in essence a simple case, not a complex one, and is to be decided on its facts. It does not, in my opinion, involve any important, or indeed any, question of law. The appellant admits the duty it owed to Mr Coffey; although it tried manfully to qualify the fact, it could really not deny the breach as found by his Honour; and damages are not in issue. 15 The decision of this Court in Pioneer Construction Material Pty Ltd v Millsom [2002] NSWCA 258 (unreported, 28 August 2002) was relied on by the appellant, but it was an entirely different case. In that case there was substantial evidence that counselling would have been ineffective. In this case, there was no such evidence; to the contrary, there was uncontradicted evidence that it would have been effective. 16 His Honour made a smallish mathematical error in assessing the damages. The true figure should be $459,478.00. 17 The following orders should be made: i. Appeal allowed; ii. Judgment and verdict below set aside; iii. In lieu of verdict for the plaintiff in the amount of $463,947.00, verdict for the plaintiff in the amount of $459,478.00; iv. The appellant to pay the costs of the appeal, and of the trial. 18 HEYDON JA: I agree with Meagher JA. 19 IPP JA: I agree with Meagher JA.

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