Eaton v TriCare (Country) Pty Ltd [2015] QDC 173

DISTRICT COURT OF QUEENSLAND CITATION: Eaton v TriCare (Country) Pty Ltd [2015] QDC 173 PARTIES: ROBYN ELIZABETH EATON (plaintiff) v TRICARE (COUNTRY) PTY LTD ACN 008 411 069 (defendant) FILE NO: 4479/12 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 25 June 2015 DELIVERED AT: Brisbane HEARING DATE: 20-24 and 30 October 2014 and 25 – 26 November 2014 JUDGE: Devereaux SC DCJ ORDERS: 1. Judgement for the defendant. 2. Submissions as to costs in writing by 10 July 2015. Bourhill v Young [1943] AC 92 Deatons Proprietary Limited v Flew (1949) 79 CLR 370 Hegerty v Queensland Ambulance Service [2007] QCA 366 Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44 Leighton Contractors P/L v Fox (2009) 240 CLR 1 Midwest Radio Ltd v Arnold [1999] QCA 20 Nationwide News P/L v Naidu and Anor [2007] NSWCA 377; (2007) Aust Torts Reports ¶81-928 New South Wales v Paige [2002] NSWCA 335; 60 NSWLR 371 State of New South Wales v Lepore (2003) 212 CLR 511 Tame v The State of New South Wales (2001) 211 CLR 317 Wolters v The University of the Sunshine Coast [2012] QSC 298 Wyong Shire Council v Shirt (1980) 146 CLR 40 CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORSEEABILITY OF DAMAGE – injury to employee – psychiatric injury – where plaintiff claims the combination of -- 1 of 69 -- 2 excessive workload and conduct of manager caused injury – whether injury reasonably foreseeable COUNSEL: S Anderson for the plaintiff A Mellick for the defendant SOLICITORS: Shine Lawyers for the plaintiff BT Lawyers for the defendant [1] The plaintiff was born on 17 October 1954. She was 55 years old in March 2010 when she resigned from her job with the defendant. She is 60 years now. She suffers from a serious psychiatric condition. In this proceeding she claims the condition was caused by the negligence of the defendant. She claims damages for personal injuries and consequential loss. [2] Her claim fails because, in the first place, she has failed to prove that the employer’s duty to take all reasonable steps to provide a safe system of work was engaged by the reasonable foreseeability of psychiatric injury to the plaintiff. Pleaded facts [3] Set out below are the facts pleaded by the plaintiff in her statement of claim, the defendant’s response and, where appropriate, the plaintiff’s reply. Some of the facts contained in the defendant’s response are drawn from a statement of further and better particulars filed by the defendant. The headings are mine. i) The plaintiff was born on 17 October 1954. The defendant company employed the plaintiff as an administration assistant from on or about 25 June 2007 at the Point Vernon Nursing Centre located at Point Vernon in Queensland. As employer, the defendant owed the plaintiff a duty to exercise reasonable care for her health and safety in her employment by not unnecessarily exposing her to risk of psychiatric injury. It was an implied term of the contract of employment the defendant would exercise reasonable care for the health and safety of the plaintiff in her employment. The defendant says it owed such duties as may be imposed by law and that any contractual or tortious obligation owed to the plaintiff was an obligation to exercise reasonable care for her safety. ii) The plaintiff’s work duties involved administering a payroll, rostering, respite bookings, invoice preparation, petty cash, organising paperwork for medicals, reporting to head office and the general running of the reception area. The -- 2 of 69 -- 3 defendant denies this and says her duties were set out in her position description dated 19 November 2009. The plaintiff replies that in reality her role involved work additional to the position description for an administrative assistant. iii) The plaintiff’s contract required her to work normal hours which at the facility were from 8.37am to 4.07pm Monday to Friday. The defendant denies this saying that by the employment contract, dated 22 June 2007, the plaintiff agreed her role required flexibility in the planning and execution of her working hours. The plaintiff replies that the agreement did not envision consistently working hours which are excessive and well beyond those described in the contract of employment. iv) From approximately July 2007 until February 2009 the plaintiff’s direct supervisor was Ms Kym Pointon, who was the centre manager.1 Pointon had regular absences from work and so the plaintiff was required to undertake many of her duties as well as the plaintiff’s own. These included additional rostering duties, particularly concerning the personal carers for the facility, ‘liaising with relatives’ and admission processes. As a result, the plaintiff’s workload regularly exceeded normal business hours and would frequently comprise 50 to 60 hours of work per week. The defendant says Pointon had some absences from work before she resigned but the plaintiff was not required to undertake any of her duties as well as the plaintiff’s own, nor was the plaintiff required to perform duties in excess of those set out in the contract of employment. The plaintiff did not undertake additional duties and was never required to work for 50 to 60 hours a week. The plaintiff did not work such hours. Alternatively, the defendant says the performance of any additional duties was not causative of any injury allegedly sustained by the plaintiff. v) At least weekly between June and December 2008 and then between mid- January and February 2009 the plaintiff raised her concerns regarding workload with Pointon and asked for help. The plaintiff was not provided with extra assistance. The defendant admits the plaintiff did discuss her workload with Pointon on several occasions in 2008, but not weekly. The defendant says, ‘if it was necessary to provide assistance, assistance was provided’. The reasonable 1 Once a person has been introduced I will refer to him or her by surname only without title. No disrespect is intended. -- 3 of 69 -- 4 assistance provided included supervision, the assistance of colleagues as necessary, all necessary office equipment, training, instruction, annual leave and sick leave. vi) In mid to late 2008 the plaintiff raised her workload concerns with the residential care manager, Daniel Belanszky. She told him her workload was too much and that she felt the facility ‘collapsing around her’. Belanszky told her to ‘hang in there’ and promised the workload issues would resolve themselves. Despite this assurance, no additional assistance was provided. The plaintiff was given access to the defendant’s payroll computer program remotely to allow her to undertake aspects of her work at home. The remote access did not reduce the plaintiff’s work hours. The defendant says that if the plaintiff told Belanszky the facility was ‘collapsing around her’ that is irrelevant to any duty it owed the plaintiff. The defendant says workload was not relevant to an injury sustained by the plaintiff. The plaintiff requested remote access for the purpose of completing work at home and was provided it. The plaintiff replies that the provision of remote access did reduce her travel time. Remote access was provided specifically in response to her complaints that she was unable to complete all her work during normal business hours. vii) In or about February 2009, Pointon resigned her position by reason of a stress related condition. The defendant does not admit any reason for Pointon’s resignation. viii) Tony Quinn was installed as a relieving centre manager from February 2009 to March 2009. During that period the plaintiff continued all of her duties including additional management duties that she had been performing for Pointon and continued to work at least 50 hours per week. The defendant denies the plaintiff did work beyond what her contract required and was provided with reasonable assistance to complete her duties. Alternatively if she did work for at least 50 hours per week (which is denied) that was not an unreasonable work period. Again, alternatively, if the plaintiff worked for longer than 50 hours per week that was caused by her performing activities that were unnecessary. These included lengthy discussions with families of residents and other staff about matters entirely unrelated to the plaintiff’s duties. Such activities were outside -- 4 of 69 -- 5 the scope of the plaintiff’s duties and served no useful purpose for the defendant. The plaintiff replies that she did not perform unnecessary duties. ix) In or about April 2009 Jane Harrison was appointed as the new Centre Manager (referred to at trial as the Facility Manager or FM). The plaintiff met with Harrison and advised her of the excessive workload she had been administering and that she could not continue to work under those conditions. Harrison advised that she was an excellent manager and in time she would decrease the plaintiff’s workload. Despite these assurances the plaintiff was required to work 50 hours per week and received no assistance from Harrison. The defendant admits the plaintiff complained about her workload upon Harrison’s commencement. The plaintiff complained about having to do the work of Pointon. The plaintiff was not in fact required to, or allowed to, perform the work of Pointon and was not qualified to do so. Harrison assured the plaintiff she was only required to perform duties she was contracted to perform. Not admitting that Harrison said she was an excellent manager, the defendant says such comments are irrelevant to any breach of duty by the defendant. The plaintiff was not required to and did not work ‘at least 50 hours per week’. The defendant denies Harrison failed to provide the plaintiff with assistance. In or around May 2009 Harrison instructed the plaintiff to direct problems with rostering or staff issues to the clinical manager or herself. In or around June 2009 Harrison informally counselled the plaintiff about her specific role, instructing her not to take on additional responsibilities. In or around June 2009 Harrison and the plaintiff had a discussion about the plaintiff’s workload in which the plaintiff provided a list of her duties. The list was reasonable and in accordance with the plaintiff’s employment contract. The plaintiff took it upon herself to have lengthy and unnecessary conversations with families of residents and staff which unnecessarily increased her workload. She was specifically instructed by Harrison not to do this. She was provided with assistance from the clinical manager, Julia Swann, to complete rosters, but did not co-operate with Swann. The plaintiff denies these allegations. x) In June 2009 the plaintiff approached Harrison requesting a meeting to discuss her workload and lack of support. A meeting was held and the plaintiff’s then current duties were identified. It was decided that Julia Swann would take over -- 5 of 69 -- 6 the staff replacements. Despite that agreement, this did not occur and the plaintiff continued to undertake all the work duties and continued to work at least 50 hours per week. The defendant admits there was a meeting in June as already set out above and denies the plaintiff’s version of the meeting. It was decided that Swann would assist, not take over, rostering duties. Swann provided the plaintiff with necessary assistance and the defendant denies the plaintiff worked ‘at least 50 hours’ per week. The plaintiff was never required to perform work in excess of the requirements of the employment contract. xi) In about September 2009, Harrison moved her office from the ground floor to the first floor. She explained this would help her avoid being interrupted by visits from patients and their families. The plaintiff’s workstation was on ground level with the result that the plaintiff routinely was required to deal with patients’ families and so her workload increased. The defendant agrees Harrison moved office in September 2009 but says it was in order to create a private space for meetings between Harrison and the families of residents, staff and other people. The location of offices is entirely the prerogative of the defendant. The defendant denies the relocation of Harrison’s office caused any change to the plaintiff’s duties but says that answering general administrative queries for residents and others was a part of the plaintiff’s regular duties under her contract. The plaintiff replies that the impact of the office relocation on staff and others was a factor to be considered by the defendant while exercising its prerogative. The plaintiff repeats that the relocation of Harrison’s office greatly increased her workload and any additional duties she performed were not by choice but required because of Harrison’s absence. xii) On at least three occasions between late 2009 and February 2010 the plaintiff told the defendant’s general manager, Grant Clonan, that she was finding it very difficult to complete all of her work within set hours, especially the payroll summary duties. In about February 2010 Clonan advised the plaintiff to speak with Harrison. The plaintiff said she had already done that. Clonan said he would look at the plaintiff’s position description to consider the parameters of her role. Clonan did not communicate further with the plaintiff about her workload or respond to her about her position description. The defendant says Clonan was not the defendant’s general manager and was not the correct -- 6 of 69 -- 7 person to raise issues with respect to the plaintiff’s workload. This was Harrison’s responsibility. The plaintiff replies that having received no reasonable response for support from Harrison it was appropriate that she raise the matter with Clonan. xiii) Between April 2009 and March 2010, on at least a weekly basis, Harrison would refer to the personal carer staff as ‘the scum of the workplace, none of them have any skills, otherwise they wouldn’t be doing this job’. The plaintiff particularises other statements Harrison made belittling the staff. Harrison would, in response to the plaintiff advising her that these comments were upsetting her, or if she attempted to defend another staff member, tell the plaintiff to ‘toughen up’ and ‘get over yourself’. The defendant denies Harrison made the comments about the other staff and also denies that Harrison told the plaintiff to ‘toughen up’ and to get over herself. Lyndall Prendergast’s complaint xiv) On about 27 July 2009 Harrison called the plaintiff into her office and advised her she had received complaints from two staff members, McGrath and Prendergast, alleging the plaintiff had been rude to them. The plaintiff approached them to apologise but both McGrath and Prendergast told the plaintiff they had made no such complaint against her. When the plaintiff advised Harrison of this fact, Harrison simply replied ‘get over it’ and ‘well nobody likes you anyway’. The defendant says Prendergast did complain to Harrison on behalf of McGrath, that the plaintiff had been rude to McGrath about either an inability to attend for a shift or a request to undertake an extra shift. The defendant denies Harrison said the words the plaintiff alleges. It was Harrison’s duty to respond reasonably to complaints made by staff. This she did by reminding the plaintiff to be careful in her interactions with staff members. The journey claim xv) In late 2009 the plaintiff was contacted by a staff member who advised she had been in a car accident on the way to work. The plaintiff told Harrison and asked whether she required the plaintiff to complete paperwork for a “journey claim”. Harrison yelled at the plaintiff and said something like ‘what rubbish are you talking about? There’s no such thing as a journey claim.’ The plaintiff explained -- 7 of 69 -- 8 there was a legal entitlement to submit for injuries on a journey to work. Harrison said she would prove her wrong and again told the plaintiff she didn’t know what she was talking about. Nonetheless, within a couple of days, the plaintiff received an email from Harrison simply confirming that she was to process the claim as a “journey claim”. The defendant admits there was a conversation about "journey claims” but says Harrison had advised the plaintiff she was not sure whether “journey claims” were covered by Queensland legislation. Harrison would check with the defendant’s self-insurance unit. The defendant denies Harrison used words as described by the plaintiff and says Harrison never yelled at the plaintiff. Harrison did not say to the plaintiff that she would prove her wrong, nor that the plaintiff ‘did not know what she was talking about.’ In any case, such discussions were not causally relevant to the injuries alleged as sustained by the plaintiff. xvi) In or about September 2009, several named co-workers approached the plaintiff to advise they were unhappy with aspects of Harrison’s management style, particularly roster changes made without staff consultation. The plaintiff brought the concerns to Harrison’s attention. Harrison told her to mind her own business and that ‘if they want to leave they can.’ Again, Harrison told the plaintiff the staff did not like her and they were just using her. The defendant says the plaintiff did relay some comments alleged to have been made by co- workers to Harrison’s attention from time to time. Most of these discussions about comments from co-workers occurred after the plaintiff had been for a tea and cigarette break. Harrison did not say words to the effect of ‘mind your own business’ and ‘if they want to leave they can’ but did on several occasions tell the plaintiff not to engage in office politics given the position of trust held by the plaintiff. The anonymous letter xvii) In late 2009 a group of co-workers sent an anonymous letter to the central office of the defendant complaining about certain aspects, set out in the statement of claim, of Harrison’s conduct and its effect on staff morale. Upon learning about the letter Harrison investigated which staff had been responsible for the letter and said to the plaintiff something like, ‘if I find out who wrote it, they will have no job.’ The defendant says there was an anonymous letter sent on 12 April -- 8 of 69 -- 9 2010. Such letter was irrelevant to the present case because it was made after the plaintiff ceased employment with the defendant and did not relate to bullying and harassment or other misconduct by Harrison. No complaint was made in late 2009. In reply, the plaintiff confirms a 2009 letter and says the manner of Harrison’s investigation increased the stress experienced by the plaintiff by reason of her dealings with Harrison and caused her to worry about the security of her own employment. xviii) After September 2009, when Harrison’s office was upstairs, the plaintiff would relay information to her after the plaintiff had met with clients and families. At least fortnightly, Harrison would say to the plaintiff words to the effect of ‘who do you think you are?’ and ‘don’t forget who you are’. The plaintiff complained that she was undertaking these interviews because Harrison was unavailable. Harrison would say something like ‘tough, that is why I moved upstairs or have you forgotten that’ and ‘I am sick of being interrupted by the residents’. The defendant admits the plaintiff relayed information that she received from residents and families and says it was part of the plaintiff’s duties to relay the information to Harrison. The location of Harrison’s office did not materially change the plaintiff’s duties. Harrison did not use the words the plaintiff alleges but says the plaintiff regularly engaged in lengthy and inappropriate conversations with the families of residents. Harrison counselled her about this. xix) From late 2009 until March 2010, Harrison checked the plaintiff’s work. On one occasion Harrison found the plaintiff had underpaid a worker by 0.25 hours. She said something like, ‘I do not expect to find anything like this ever again, it is not good enough, do better.’ The defendant denies Harrison said such a thing to the plaintiff but says that after becoming aware the plaintiff was approving payrolls without authority, and staff complaining of errors, Harrison started checking payrolls. Harrison expected there would be errors in the payroll no matter who performed it. Harrison’s response to any errors in the payrolls was simply to ask the plaintiff to fix them. The food supervisor incident xx) In January 2010, a food supervisor who had recently been hired resigned. On learning this the plaintiff telephoned one of the other applicants recently -- 9 of 69 -- 10 interviewed for the position and requested the person contact Harrison to have a chat as the position was now available again. Harrison was not at the premises when the plaintiff made that telephone call. The plaintiff emailed Harrison the same day to tell her of the action she had taken and to expect a telephone call from the candidate. In her response email, Harrison demanded that the plaintiff see her in her office in the morning and asked ‘how dare’ the plaintiff do such a thing. At the meeting the plaintiff apologised to Harrison and said she was simply trying to do the right thing at short notice in Harrison’s absence. Harrison said she would report the plaintiff’s actions to the human resources department and expected the plaintiff would be disciplined. Harrison was yelling, was aggressive and was waving her finger at the plaintiff. Two weeks passed and the plaintiff heard nothing. The plaintiff was significantly stressed at the prospect of disciplinary action. Eventually the plaintiff asked Harrison if she had heard from the human resources department and Harrison said she had not and that ‘it turned out to be the right decision anyway’. Harrison told the plaintiff to ‘get over herself’. The defendant denies the plaintiff telephoned the other recently interviewed applicant advising the person to ‘have a chat’ with Harrison. The plaintiff actually offered the person the food supervisor job. The plaintiff did that without authority. Harrison did not use the words ‘how dare’ to the plaintiff. The defendant says the plaintiff did not apologise to Harrison. Harrison advised the plaintiff she would consider reporting the plaintiff for disciplinary action for hiring a food services supervisor without authority. It was entirely appropriate for Harrison to consider disciplinary action. Harrison was not yelling or aggressive or waving her finger at the plaintiff. The defendant says any stress the plaintiff suffered during the two week period was not a result of unreasonable actions on the part of Harrison or the defendant but was caused solely by the plaintiff’s misconduct. The defendant admits that about two weeks after the initial meeting the plaintiff asked whether Harrison had heard from the human resources department. Harrison did not in fact report the plaintiff to the defendant’s human resources department and told the plaintiff so. Harrison did not say ‘it turned out to be the right decision anyway’. Harrison did not tell the plaintiff to ‘get over herself’. -- 10 of 69 -- 11 The New Zealand flag incident xxi) At the beginning of February 2010, the plaintiff put a small New Zealand flag on her door to mark Waitangi Day, as she is a New Zealander. Upon seeing it, Harrison tore the flag from the door, loudly saying something like ‘for god’s sake, what is this rubbish?’ and threw the flag onto a shelf in the plaintiff’s office. On other occasions between April 2009 and 12 March 2010, Harrison made disparaging comments about ‘kiwis’, including the plaintiff, not being too clever. The defendant denies Harrison tore the flag from the door and said what the plaintiff claims. The defendant denies Harrison made disparaging comments of New Zealanders. In this matter, as in many others, the defendant pleads, in the alternative, that the incident was not causally relevant to the plaintiff’s alleged injury. The admissions procedure xxii) During February 2010, Harrison requested to see the admission procedure document. The plaintiff said it was part of her role to administer the procedure. Harrison said something like ‘who do you think you are to be doing this?’ and advised the plaintiff she would not be responsible for the process any longer. The plaintiff told Harrison that head office had requested the process be uniformly followed. Harrison said ‘I don’t care what they said, it will be done my way and my way only’. The defendant agrees the plaintiff provided Harrison with the admission procedure and explained it was part of the plaintiff’s role to administer it. Harrison did not respond as alleged but did advise the plaintiff she would no longer be responsible for the admissions process. Before the discussion the plaintiff had been performing duties in respect of the admissions process outside the defendant’s policies. It was reasonable, the defendant says, to remove the admissions duties from the plaintiff. Harrison did not make the ‘I don’t care’ statement. 11 March 2010 – the phone call xxiii) At about 8.15am the plaintiff received a telephone call from a doctor concerning a patient who was a resident of the facility. The doctor advised the patient should not be released from the facility. The plaintiff told the doctor the facility manager and the clinical manager were not in the office yet but she would pass -- 11 of 69 -- 12 on the message when they attended. When Harrison attended, the plaintiff passed on the massage immediately. Harrison demanded to know if the plaintiff had passed the message to the clinical manager. The plaintiff replied the clinical manager was not yet at work. Harrison became angry and walked from the room. This caused the plaintiff to become emotionally distressed, break down and cry. She commenced to shake uncontrollably. She telephoned Harrison and advised her she was upset and thought it necessary that she be allowed to go home for the day. Harrison asked the plaintiff what had caused her to be upset and the plaintiff explained she could not handle Harrison’s behaviour towards her any longer. Harrison responded that she was extremely offended at that remark and that she would not listen to the plaintiff while she was emotional and she advised the plaintiff to go home and that she would see the plaintiff the following morning for a meeting. The defendant denies Harrison ‘demanded’ to know whether the plaintiff had passed the message on to the clinical manager. Harrison asked and the plaintiff told Harrison the clinical manager was not around. Harrison instructed the plaintiff the message should have been passed on to the team leader. Harrison did not become angry and walk from the room. Harrison’s instructions were normal and reasonable instructions. The defendant admits the plaintiff telephoned Harrison to say that she was upset but did not ask to be sent home, saying only that she needed to leave the office for ‘a few hours’. Harrison insisted the plaintiff take the rest of the day off. The defendant denies the discussion about why the plaintiff was so upset but Harrison did tell the plaintiff to go home and they would discuss the matter in the morning. The plaintiff replies that even if Harrison’s instructions were reasonable the method of delivery of the instructions was unreasonable and aggressive in the circumstances. The 12 March 2010 meeting xxiv) On 12 March 2010, there was a meeting of the plaintiff and Harrison, with Rob Fisher present as a witness. Harrison did not deal with the telephone message incident of the day before but accused the plaintiff of working outside the scope of her duties. She referred to the food supervisor position incident and an occasion when the plaintiff gave a personal reference to a former TriCare employee. Harrison told the plaintiff she had no right to give the reference. The -- 12 of 69 -- 13 plaintiff said it was a personal reference, not related to work. The plaintiff asked why Harrison was only raising the reference as an issue now. Harrison said it was too late to say anything at the time. The plaintiff offered her resignation. Harrison accepted, saying ‘oh what a shame I was going to get someone to assist you.’ The defendant denies the plaintiff’s account of the meeting and says the meeting occurred as set out in a file note signed by Harrison on 22 March 2010. Harrison counselled the plaintiff about providing a reference to a former employee without authority but did not say the plaintiff ‘had no right’. Harrison did not make the ‘oh what a shame’ statement. xxv) From the time of the incident described in paragraph xiii) above – the scum of the workplace – the plaintiff considered the tone of Harrison’s communications and behaviour to be offensive, intimidating, humiliating and threatening. The defendant denies this allegation. xxvi) Harrison’s conduct over the period just referred to was repeated, deliberate and constituted workplace harassment, as defined in the Prevention of Workplace Harassment Code of Practice 2004. While denying the conduct, as set out above, the defendant says it was not workplace harassment as so defined. xxvii) Alternatively, Harrison’s conduct over the period was belligerent and obstructive and Harrison knew or ought to have known it to be likely to increase the stress the plaintiff was feeling. The defendant queries the use of the terms, belligerent and obstructive and says Harrison’s actions were reasonable in the circumstances. xxviii) Throughout the period she was the administration assistant, as described above, the plaintiff suffered from ‘considerable stress’ characterised by a general negative change in her character and demeanour, appearing withdrawn, worried, pre-occupied and crying within the workplace. The defendant says that to the extent it admits any of the allegations these facts did not cause ‘considerable stress’. The defendant says it is not qualified to assess the plaintiff’s psychiatric state. The plaintiff replies it was incumbent on the defendant to look for signs and symptoms which might indicate the plaintiff was starting to suffer an unhealthy degree of stress, which it did not do. -- 13 of 69 -- 14 xxix) As a consequence of the matters referred to during the period Harrison was the FM, the plaintiff suffered a psychiatric injury. The defendant denies any such matters caused a psychiatric injury. If the plaintiff has a psychiatric injury, it was caused by matters unrelated to her employment with the defendant. xxx) The defendant is ‘vicariously liable’ for Harrison’s conduct. Alternatively, the defendant failed to provide a safe system of work. The plaintiff listed 13 failures leading to that conclusion. So, the defendant was negligent and in breach of its duty of care and in breach of the employment contract. The defendant admits it is vicariously liable (only) for authorised acts of Harrison and denies the listed failures. xxxi) The plaintiff alleges and the defendant denies a causal connection between Harrison’s conduct and/or the defendant’s negligence, breach of duty and/or breach of contract and the plaintiff sustaining the psychiatric injury. xxxii) The plaintiff suffered pain and suffering and loss of amenities, past economic loss and loss of earning capacity, has undergone and will undergo significant expense. The defendant says the plaintiff’s workload was never a significant contributor to the plaintiff’s injuries and that the plaintiff’s symptoms are the result of a long-standing pre-existing condition. [4] Much evidence was led relevant to these numerous disputes. More evidence was led from witnesses, not directly relevant to these disputes, which the plaintiff relied on as proof of Harrison’s propensity to conduct herself in a certain manner and to prove the corporate culture of the defendant. Proof of these circumstantial facts is relevant, if at all, to the likelihood that the plaintiff’s version of Harrison’s conduct is true. Much of that evidence is also contested. [5] I will deal with the evidence relevant to the numerous pleaded factual disputes. As to credibility generally, my impression was that no witness was a deliberate liar but that the many conflicts in the evidence are likely to have arisen from the lapse in time since the events occurred, the human properties of hearing what one wants to hear and remembering one’s view of an incident and also that one’s experience and therefore memory of an event is coloured by the emotional circumstances of the occasion. -- 14 of 69 -- 15 Evidence about the defendant and the plaintiff [6] According to the TriCare Residential and Community Care Division Staff Handbook dated March 20082 the defendant had then been involved for over 38 years in the aged care industry, providing care and accommodation in South-East Queensland. It operates 14 residential aged care facilities. In about 2009 it employed about 1500 staff.3 Point Vernon was about a 70 bed facility. It was considered one of the smaller of TriCare’s operations.4 The senior position at the facility was called the Facility Manager (FM). The Clinical Manager (CM) was in charge of the clinical side of the operation. There was a single Administration Assistant position, which at the relevant times the plaintiff occupied. There were Clinical staff - Registered Nurses and Enrolled Nurses and Personal Carers (PCs), kitchen staff including a Team Leader and cleaning staff. [7] The plaintiff was born on 17 October 1954. She is now 60 years of age. According to the curriculum vitae she presented to the defendant when applying for the position of administration assistant, she had worked since 1970 at public and private hospitals and retirement and rest homes. Her experience included a period at a TriCare Nursing Centre at Mermaid Beach where the plaintiff worked as a Personal Carer and then as an Administration Assistant in 2002 and 2003. She worked for the defendant as a Personal Carer at Hervey Bay from October 2004. The references the plaintiff tendered with her application described her as reliable, conscientious and dedicated and capable of managing diverse areas such as wages, invoices, ordering, management of the kitchen budget, billing and day to day running of the home from an administration point of view. She is described as having a bright personality with excellent people and time management skills. The plaintiff completed various certificate courses and supplied copies of the certificates to the defendant as part of her application for the position of Administration Assistant which she gained in 2007. [8] The plaintiff was engaged on a fixed term employment contract dated 22 June 2007.5 That document refers to an attached position description but there is no position description attached to Exhibit 5. The plaintiff’s employment continued - on 1 August 2008 she entered into an employment contract with the defendant as the 2 Exhibit 19 3 O’Brien 4-82 4 Belanszky 6-4 5 Exhibit 5 -- 15 of 69 -- 16 Administration Assistant at Hervey Bay commencing on 11 August 2008.6 Again, that document refers to an attached detailed position description but there is no attachment to the exhibit. (The plaintiff said she was not given a position description.) In the result the plaintiff was in continuous fulltime employment with the defendant as the Administration Assistant with the Point Vernon facility from 25 June 2007 until 12 March 2010 when she tendered her letter of resignation. Evidence relevant to the pleaded facts The plaintiff’s workload – the period before Harrison [9] The contract of employment of August 20087 stated the plaintiff’s standard working hours would be 76 hours a fortnight and the role would entail the need for flexibility in work hours. The defendant did not generally pay overtime but time-in-lieu arrangements would be co-ordinated by the FM, who, at the time, was Kim Pointon. As I have noted, no position description appears to have been attached to the contract. Paul O’Brien, the manager of human resources, said the position descriptions were all available on the TriCare intranet. Through him, the defendant tendered the position description for the administration assistant position - an iteration dated 1 January 2004 and another dated 19 November 2009.8 Despite these apparently being ‘readily and freely available’, it is notable that Harrison did not refer to such a document when discussing the plaintiff’s duties with her nor at a meeting about the admissions procedure. [10] The plaintiff had worked as administration assistant at the Mermaid Beach facility. That role was not as intense as at Point Vernon. The manager there was very hands on. The plaintiff was not responsible for certain areas of the operation which she had to take care of at Point Vernon, namely the payroll and the rostering.9 Also, she was wholly responsible for patient and relative liaison at Point Vernon. In this last regard, the FM Pointon would assist, whereas, the plaintiff said, once Harrison commenced as FM the plaintiff was wholly responsible in this area.10 6 Exhibits 5 and 6 7 Exhibit 6 8 Exhibits 35 and 36 9 Eaton 1-27.35 10 Eaton 1-28.15 -- 16 of 69 -- 17 [11] The plaintiff said she complained to Pointon about the workload and Pointon encouraged her to do what she could. Pointon would occasionally help with roster preparation but, the plaintiff said, it did not save her from doing the work. She enjoyed a good relationship with Pointon but Pointon was regularly absent from the workplace and eventually left, the plaintiff said, after taking stress leave in December 2008. Thereupon, the plaintiff’s workload increased. She was solely responsible for resident liaison and staff would come to her with their problems.11 She would work up to 50 hours a week before Pointon left, and longer than that after. She was granted remote access to the system so she could work on the roasters at home. [12] Tony Quinn, the interim FM, was not familiar with the systems so he could not reduce her workload despite her complaint to him that it was extreme. She was working 45 to 50 hours per week.12 [13] In March 2009, the plaintiff’s pay was increased. This came about, the plaintiff said, after she told Quinn she had been offered another job.13 [14] O’Brien said that on two or three occasions during his visits to the Point Vernon facility in 2008, the plaintiff raised concerns about Pointon’s unavailability, namely that it required her to deal with queries relating to staff and residents’ families. He advised her to raise the matter with Daniel Belanzsky. He raised the concern with Belanszky himself.14 O’Brien confirmed that Pointon resigned in February 2009. Under cross examination, O’Brien agreed that he had written in a statement that the plaintiff rang him twice during 2008 to speak about the difficulty she was having with her role, particularly when the FM was not available.15 [15] Daniel Belanzsky, who was the general manager of the residential and aged care division of the defendant from about October 2007, said there had been a period of instability in the management of the Point Vernon centre.16 Like O’Brien, he was based in Brisbane but he spent more time at the Point Vernon facility than any other.17 He said the defendant employed only one AA at each facility, with the exception of 11 Eaton 1-34 to 1-35 12 Eaton 1-35 13 Eaton 1-36 14 O’Brien 4-86 15 O’Brien 4-90 to 4-91 16 Belanszky 6-5 17 Belanszky 6-4 -- 17 of 69 -- 18 a large facility in Brisbane. He had received no complaints from other AAs about workload.18 Although he had a number of conversations with the plaintiff he did not recall the details – he did not recall anything about extreme workload. [16] Part of the AA’s role was to prepare the rosters on direction from the FM. [17] Belanszky also did not recall any complaint from the plaintiff about bullying or harassment. Any complaint would have caused him to speak to the facility manager.19 [18] Shortly before Pointon left, in an unannounced accreditation visit, the facility failed on 17 out of 44 criteria. It seemed all staff were aware of this. Clearly it was a serious matter for all at the facility.20 Belanszky confirmed the plaintiff’s evidence that Pointon was not always at the facility during business. The administration staff consisted only of the FM and the AA.21 Although the plaintiff spoke to Belanszky about the amount of work she had to do, he did not consider it an onerous role. The AA was not expected to work outside the standard hours.22 Belanszky did not recall seeing the plaintiff crying or unhappy. Although she was an emotional person, she was jovial.23 [19] Dawn Reynolds, who at the time of giving evidence – called by the defendant – had been a personal carer or the lifestyle co-ordinator with the Point Vernon facility for 12 years, agreed with the general proposition that there were some issues with the home during Pointon’s leadership.24 She knew the plaintiff as a personal carer and then as the AA. [20] Pointon was called by the defendant. Aged 53 years at the time of giving evidence, she was the FM at Point Vernon from May 2007 to February 2009. She had a good relationship with the plaintiff, it continued after she left the defendant’s employ. She described the plaintiff’s role as AA – ‘the front line meet and greet as you come in the door type of role, working through phone calls, fielding people visiting, direction, applications for admission. ……payroll and rostering – inputting roster changes . . . 18 Belanszky 6-6 19 Belanszky 6-8 20 For example, Gary Carberry, a personal carer, said a notice in the staff room informed the reader there had been 17 failures noted in the audit. See 4-26.25-45 And see McKenzie at 4-19.5 21 Belanszky 6-11 22 Belanszky 6-15.20 23 Belanszky 6-28.40 24 Reynolds 8-22.35 -- 18 of 69 -- 19 as they occurred on a day to day basis.’ The plaintiff was very pleasant on the phone… a lovely lady.25 She was not overly emotional. She was compassionate. [21] Pointon gave two reasons for her regular absences. There being a strong focus on ‘trying to fill the beds’, she regularly came to work via Maryborough Hospital where she would talk to the social workers. The other reason was sick leave. Pointon said her absences would have caused the plaintiff to have to field more phone calls and inquiries, but ‘not in terms of management or anything like that.’26 She accepted the suggestions from the defendant’s counsel that her absences would increase the liaison role but that was something she did anyway. As to resident admissions, the plaintiff ‘correlated all of the paperwork and went through and did all the checking mechanisms, making sure the documents were all there, ready to be sent off to head office, and they did the financial component.’ She thought the plaintiff worked ‘the standard 8 till 5, something like that.’ She did not think it would have been as much as 50 to 60 hours.27 Pointon could recall a discussion with the plaintiff about workload. She arranged a sign to be put at the plaintiff’s office, to prevent inquiries for a certain part of the day. Pointon commented that she thought many of the interruptions were from other staff and were not ‘valid work matter interruptions.’ This arrangement did not last. Pointon could not say why.28 Asked whether the plaintiff ever asked for help, Pointon said she could have but did not recall. [22] Pointon denied she left TriCare because of stress. She said she had given the staff an undertaking that they would be a facility of excellence. ‘We had some non- compliance areas during an audit and I tendered my resignation.’29 [23] Under cross-examination, Pointon agreed she suffered from lupus, which periodically caused difficulty for her. She said she and the plaintiff mostly left work at the same time though sometimes she left before the plaintiff. She agreed with the propositions that she shared the job of liaising with residents and prospective residents and their families, contacting people to ‘backfill’ the rosters and she assisted the plaintiff in the admission tasks. The plaintiff was specialised in the payroll/roster work. It seems Pointon left that to her. Pointon agreed with dates put to her as to sick leave taken. In 25 Pointon 8-29 26 Pointon 8-30 27 Pointon 8-31 28 Pointon 8-32 29 Pointon 8-33 -- 19 of 69 -- 20 particular, in 2008, she took three days in February, five in March, two days in April and three in May. She took ten days annual leave in August. She was on leave from 11 December until 2 January 2009. There would also have been flexidays taken when she felt unwell.30 Conclusions about workload in the period before Harrison [24] For reasons which I will expand on below, I think the plaintiff was prone to exaggerate matters somewhat. Nonetheless, it is easy to infer that she was overworked during the period under discussion. Mr Mellick, who appeared for the defendant, points out in written submissions that the plaintiff’s claim to working excessive hours is not documented and not mentioned in the email sent to Belanszky requesting remote access.31 That is a point unlikely to favour the defendant. In any case, several matters lead me to conclude on balance that the plaintiff was consistently engaged in longer hours of work than the contract provided for and operated under stress: Pointon’s loose guess that they worked from 8 am to 5 pm and that she would occasionally leave before the plaintiff did; the grant of remote access; Pointon’s evidence giving foundation for the plaintiff’s complaints about Pointon’s absences. It seems there was no-one in the position of clinical manager at the time.32 Perhaps Pointon, being a registered nurse, performed some of that role. This too would have created conditions requiring the plaintiff to take a larger role. The plaintiff does not consider the workload during this period to have caused her the serious illness she now suffers from. Of course, her opinion is not persuasive. But there is no medical evidence to the contrary and indeed, although paragraphs 5 to 17 of the Statement of Claim concern this period and I have traversed the substantial evidence relevant to that pleading, the plaintiff does not plead that any stress suffered during this period caused her injury.33 The arrival of Harrison [25] Jane Harrison commenced as the Facility Manager at Point Vernon in early April 2009. Belanszky interviewed her for the position. The defendant tendered Harrison’s 30 Pointon 8-43 and Exhibit 55 31 Exhibit 21 32 Belanszky 6-11.20 Belanszky said there was a team of clinicians including two registered nurses and an enrolled nurse from head office at Point Vernon, over a period of weeks 33 Amended Statement of Claim paragraph 82 -- 20 of 69 -- 21 letter of application for the position dated 5 March 2009 with the attached curriculum vitae and a current CV executive summary document.34 In the letter of application Harrison explained that she had recently returned to Bundaberg after three and a half years in Darwin. Her claims included that she had been in senior and middle management positions for more than 15 years. This included being involved in large scale change processes in organisations, especially in Queensland Health and the NT Clinical School. Her academic qualifications included a Master of Business Administration (Executive) from the University of Queensland in 2002. The relevant work history set out in the CV commenced with the position of District Manager for Queensland Health (South West Rural Queensland District of eight communities comprising seven hospitals, one outpatient clinic, two community health services, two dental services, one residential aged care facility, two flying surgical services, a mental health team and two outreach allied health services, in addition to an aged care assessment team: about 450 staff and budget $24 million). This position was filled from 1996 to 2000. In 2000 to 2003, Harrison was an Executive Officer, Wide Bay Division of General Practice (Rural Queensland Division) across nine communities. From 2005 to 2007 she was Executive Officer, Northern Territory Clinical/Rural Clinical School. This involved administrative leadership of the development and implementation of the NT Rural Clinical School across three campuses. In 2007, Harrison was a Senior Policy Officer at the Department of Health and Community Services, NT Government. This was a short-term contract. From 2007 to 2008, she was Manager, Community Care Darwin, Masonic Homes Incorporated. From 2008 until the time she applied for the position, Harrison was Human Resources Manager, St John Ambulance Australia (NT) Inc. Among the professional memberships and achievements listed in her CV, Harrison includes from 2005 to the present – Associate Fellow of the Australian Institute of Management and from 1983 to 1989 – Officer, Royal Australian Navy. [26] Belanszky said facility managers were trained during a ‘fairly detailed training programme’ that included training on the rostering system and payroll system.35 [27] Harrison had not managed a residential aged care facility. She had worked in community aged care and health service management but not specifically residential 34 Exhibits 39 and 38 respectively 35 Belanszky 6-14 -- 21 of 69 -- 22 aged care which, she said, has its own unique set of accreditation standards.36 She noticed after she started at Point Vernon that there were a lot of people from head office there. These included Jill Patience, a nurse and an assistant enrolled nurse, Belanszky and Tony Quinn. Harrison described the outcome of the review audit as a truly appalling result for TriCare. The service had effectively been operating without a Facility Manager and a Clinical Manager which is why there was a large amount of support going on into the service. There was an accreditation survey scheduled, she thought, for around May or June. Harrison said the consequences of not regaining compliance across the facility would have been extremely serious for that service and for TriCare. [28] Harrison felt welcomed by the plaintiff who appeared very capable and knowledgeable. She said she trusted her and was guided in her day to day administrative duties by the plaintiff.37 She set about resetting the rosters and put in place a consultation process to achieve this. The process seemed to take months, she said. The patients’ care plans were all re-written. Harrison said this was a very extensive process. As to other major issues, Harrison said ‘there were issues around income as well’ but that was put on the back burner until the accreditation was achieved.38 [29] Referring to my earlier general remarks about the credibility of the witnesses, broadly put, I found Harrison to be an honest witness. However, the incidents she (and of course all of the witnesses) gave evidence about occurred five years earlier. I gained the impression that her recollection was self-serving. It emerged that she left the defendant’s employ on less than cordial terms, but she did not impress as attempting to give evidence in favour of the defendant. She was very careful and forthright with her answers to questions and I gained the impression that she was five years more experienced than when the incidents occurred and occasionally answered as if by reconstruction rather than from memory. For example, when asked whether she was frustrated by the plaintiff’s behaviour, Harrison answered, ‘The way I felt and the way I behaved as a manager have to be – you have to be under control in your behaviours, no matter what your feelings are. So I would have spoken to her very clearly and 36 Harrison 5-6.15 37 Harrison 5-7.35 38 Harrison 5-10.5 -- 22 of 69 -- 23 probably in a fairly normal tone of voice.’39 She did not agree there were times when she was unable to control her emotions. I have already noted that the Vernon Point facility was in a state of flux when Harrison arrived,40 but it was receiving a lot of attention from central office. It was a stressful time and Belanszky and Harrison did not always agree.41 Belanszky also said that Jill Patience had difficulty interacting with Harrison.42 O’Brien said Harrison was managing a very difficult situation.43 Harrison said it was a very busy time and a difficult time for the organisation. In all these circumstances I think it reasonably possible Harrison spoke sharply to the plaintiff. At least, given the difficulty of the situation Harrison had moved into, all of the above circumstances give rise to the real danger that Harrison’s recollections of the manner in which she went about her new and challenging and no doubt very stressful position are not reliable. [30] It is relevant here that I address the body of evidence led by the plaintiff from several staff to describe their own experience of Harrison’s management style. Mr Mellick took issue with such evidence after Ms Anderson opened the plaintiff’s case. He referred me to Cross on Evidence at [21275 – 21290].44 Without the matter being clearly resolved, Ms Anderson undertook to ‘be mindful of restricting it to issues that are directly relevant’45 and it would be open to Mr Mellick to object to particular evidence as it arose. [31] Most of the witnesses who gave this type of evidence were personal carers. Largely, they were unhappy with the changes to rosters implemented by Harrison. Although they spoke of staff meetings held, some simply said they did not attend the meetings. Mostly this evidence is of little probative value if relevant at all. An example is the evidence of Lyndall Prendergast, who was food services manager from some time in 2008 to December 2009, that Harrison spoke abruptly to her and ‘did nothing about any of the issues that I raised with her.’46 Another is the evidence of Kenneth Thompson, who was a personal carer at the facility from 2001 to 2012. He complained, among other things, that Harrison dismissed any suggestion of his, 39 Harrison 7-40.40 40 Belanszky 6-1.1 41 Belanszky 6-22.35 to 40 42 Belanszky 6-24 43 O’Brien 4-114 44 From 1-18 45 1-23.40 46 Prendergast 3-39.5 -- 23 of 69 -- 24 saying, ‘you’re under 30. You don’t have an opinion.’47 Other evidence, led by the plaintiff to support her account of Harrison’s conduct, or just to show Harrison as an unpleasant person, was neutral or open to interpretation in Harrison’s favour. For example, Sally McKenzie, who had worked at the centre as a personal carer since 2004, took exception to a direction, delivered by Julia Swann but said to be from Harrison, about the timing of staff afternoon tea. This matter was that it clashed with the residents’ meals.48 McKenzie also gave evidence that, after a staff meeting, she heard Harrison say of the staff, ‘I just feel the staff are incompetent. They need more training.’49 [32] I give this sort of material very little regard. I have already referred at some length to the tenuous position the Point Vernon facility was in. Harrison was appointed to manage it, in the short term, back to accreditation. It may have been expected that all processes would be reviewed and changes made at all levels. Long term staff may well have been unimpressed with the disruption. If they felt threatened by remarks such as ‘a new broom sweeps clean’50 it was nonetheless an inoffensive remark by a new manager. As to roster changes, reasonable grounds were suggested to the witnesses for the changes. These were simply matters in the province of a new manager. Ultimately, the material is irrelevant because I am not satisfied it can affect the likelihood of the existence of a fact in issue. [33] But some of the evidence of other employees’ experience of Harrison transcended the merely prejudicial and, in my view was relevant to a fact in issue. It is a substantial part of the plaintiff’s case that Harrison spoke to her in a demeaning and unreasonable way. The defendant denied such conduct on the pleadings. In her evidence, Harrison emphatically denied such conduct specifically and generally. Some of her answers went beyond the immediate proposition put to her and asserted a favourable view of her managerial conduct. In evidence-in-chief she responded in the negative to questions whether she ever yelled or screamed at the plaintiff.51 Asked whether she used words like, ‘Who do you think you are? Don’t forget who you are?’ to the plaintiff, Harrison said ‘I never spoke to Robyn or any other staff member I’ve 47 Thompson 3-109.20 48 McKenzie 4-10.25 49 McKenzie 4-13.15 50 Burgess 3-96.10 51 Harrison 5-27.10 -- 24 of 69 -- 25 worked with in that way.’52 Under cross examination, she said, ‘I have never shouted at anyone in that job or any other position.’53 When taxed with the proposition that she spoke of employees ‘who wouldn’t be there if they had any brains’ she replied, ‘No. I would never say anything like that and I never did.’54 [34] Joanne Burgess worked as a personal carer at the Point Vernon facility from 1997 until November 2009. Over the 12 years, she mostly worked night shifts. She knew the plaintiff as a personal carer and then as administration assistant. She gave evidence of an occasion when Harrison approached her and pulled her by the shirt. The shirt was not uniform. Her uniform shirts were getting small. She said Harrison pulled at it and said, ‘this is not TriCare uniform. And you’re not getting your laundry allowance.’ Burgess said, ‘It was quite intense, actually. And I’ll never really forget it, because I felt humiliated, because there was residents and staff in the hallway…’.55 Under cross examination, the witness gave a reason for wearing the non-uniform shirt on that occasion which I need not recount, but it lent depth to the indignity she felt at Harrison’s hands. It was put to Burgess that Harrison did not touch her or raise her voice at her. The witness replied, ‘Yes. She did. I will never forget it because I have never been treated like that. I’ve been nursing since I was 15 years of age, you know. I was nearly 60, and I have never been humiliated like that.’56 [35] Harrison recalled the incident and denied touching Burgess. She recounted a conversation in which she asked Burgess whether there was any reason for not wearing the uniform that day.57 But I found Burgess’s evidence compelling on this point. To her, it was a unique moment in her long career in nursing, prompting her to leave that career58. It was not likely to have been such an occasion for Harrison. This might go some way to explaining the different accounts. It was, of course, proper for Harrison to remark on the non-uniform dress. But, accepting Burgess’s account as I do, this was an example of conduct markedly ill-matched to the occasion. [36] Properly understood, I think this was evidence of Harrison’s propensity to act in a certain manner with, at least, employees at the level of personal carer. Mr Mellick’s 52 Harrison 5-40 53 Harrison 7-41.20 54 Harrison 7-44.35 55 Burgess 3-92 56 Burgess 3-104 57 Harrison 5-51 in chief and 7-79 under cross-examination 58 Burgess 3-101.40 -- 25 of 69 -- 26 complaint that no such facts were pleaded may be well grounded but another view of it is that this is evidence of a circumstantial fact proved in support of the pleaded facts. Admissible propensity evidence is, after all, evidence of a circumstantial which the fact finder may use when assessing the likelihood of the existence of a fact in issue. Witnesses who saw Harrison behave aggressively towards Eaton – in contrast to Harrison’s own evidence [37] Sally McKenzie gave evidence that she saw the plaintiff and Harrison ‘face to face’. Harrison’s voice was loud but not loud enough to know the words she was speaking. Harrison’s hands were on her hips. Her body language was ‘I’m the boss and I’m telling you something.’59 [38] Gary Carberry gave evidence of an incident upstairs on a balcony. At the time, Harrison’s office was upstairs. He heard the plaintiff ‘trying to explain to Jane about somebody wanting family leave.’ He said he heard Jane say, ‘with a very raised voice’, ‘Tell that person we’re not running a charity.’ After this interaction, he saw the plaintiff – ‘She was crying again.’60 Under cross examination, Carberry agreed Dawn Reynolds and Lola Saltmer had offices in that area upstairs but he said there was no-one else in the area at the time. When it was suggested to him the incident did not happen, he said, ‘That did happen. I was shocked by it.’61 [39] Carberry also said he spoke to managers from Brisbane about Harrison’s conduct. He remembered the name, Paul. He was told to give her time.62 [40] Susan Morris, a personal carer, also saw Harrison speaking in a ‘very matter of fact, stern’ way to the plaintiff, leaning over the plaintiff’s desk ‘and grilling her for I don’t know what. But pointing her finger at her and Robyn going back in the chair.’ After that event, the plaintiff was very upset, by which the witness meant the plaintiff ‘was rather shaky and she just wouldn’t say anything.’63 59 McKenzie 4-14.15 60 Carberry 4-24 to 4-25 61 4-29.40 62 Carberry 4-31 63 Morris 4-36 to 4-37 -- 26 of 69 -- 27 [41] Bernadette McDonald, a registered nurse who worked at the facility from 2009 under clinical manager Julia Swan and still works there on a casual basis, gave evidence that she saw an interaction between Harrison and the plaintiff at about 1.30 pm one day. McDonald was signing on for the afternoon shift. The plaintiff was at the reception desk. Harrison was there, ‘she appeared to be belittling Robyn.’ Harrison used a ‘raised voice at Robyn about something that hadn’t been done. Just belittling her.’ McDonald overheard her say, ‘I’ve never met anybody so stupid as you.’64 McDonald stayed after Harrison left and asked the plaintiff whether she was alright. ‘She had tears in her eyes and just shook her head. She didn’t answer me at all.’65 [42] Under cross examination, McDonald agreed she left TriCare on 24 April 2009.66 So the event she spoke of occurred early in Harrison’s time. When challenged about her recollection, McDonald said she had a clear recollection of Harrison speaking inappropriately to the plaintiff. She recalled there was a lot of other activity going on (she had been asked about the presence of staff from Brisbane) ‘and this is related to the standards they lost. There seemed to be a lot of pressure in TriCare.’67 McDonald denied she had just made up the ‘so stupid’ allegation, saying she had not previously had the opportunity to give the information to anybody and said, ‘I’ve sworn on the bible, and you’re supposed to tell the truth.’68 [43] Mr Mellick has submitted McDonald’s account should not be accepted for a number of reasons. It was not opened that she would say Harrison made the ‘so stupid’ statement, the implication being this part of her evidence was a recent fabrication. Also, McDonald questioned a schedule of shifts which was later tendered unchallenged. Her evidence purports to describe an event so early in Harrison’s time that there must have been many Brisbane staff present, making the conduct unlikely. Also, the timing was before the plaintiff’s gall bladder operation – the plaintiff describes the troubles with Harrison arising after that surgery. [44] All of the above witnesses were open to attack on various bases – none made a written complaint or took advantage of the grievance procedure; there are potential inaccuracies in other parts of their evidence; Morris appeared partisan because she 64 McDonald 4-46.35 65 McDonald 4-47.5 66 McDonald 4-48.40 67 McDonald 4-51.5 68 McDonald 4-52.30 -- 27 of 69 -- 28 refused to speak before trial to the defendant’s solicitors - but I found no reason to reject their evidence on the incidents I have just outlined. This is perhaps a small but still significant body of evidence directly in proof of one type of conduct by Harrison directed at the plaintiff which the plaintiff says caused her injury. It is relevant and I accept the above evidence. Workload under Harrison: Meetings about workload - Pleaded facts (ix) and (x); September 2009; Harrison moves upstairs - Pleaded facts (xi); Complaints to Clonan - Pleaded facts (xii). [45] The plaintiff said that a few weeks after Harrison’s arrival she spoke to her about the workload, telling her it was extreme. In an upstairs meeting room, the plaintiff listed her duties and Harrison wrote the list on a whiteboard. Harrison said it was far too much and the load would be reviewed. Nothing changed as a result of the meeting.69 [46] The plaintiff was absent from work for 5 days in May 2009 to have a gall bladder operation. Lola Saltmer relieved in her position. While she was recuperating at home, she was ‘continually rung’ by Harrison or Saltmer for advices on different matters.70 Upon her return to work, the plaintiff complained to Harrison about assistance Saltmer had received in doing the Plaintiff’s job. Harrison spoke nastily, telling her to get over it. The plaintiff said this was the start of Harrison’s bullying conduct,71 although this was qualified under cross-examination – ‘Things weren’t perfect, and then I went off and had my gall bladder operation’72 [47] After this, the plaintiff asked for assistance in her job but Harrison denied her any. As to Harrison’s manner, the plaintiff told her, ‘Jane, you’re making me feel really bad the way you’re speaking to me. I feel bad.’ Harrison screamed at her, ‘I will speak however I like’ and told the plaintiff to get over herself.73 [48] The plaintiff felt her workload increased with Harrison’s arrival. [49] In June, the plaintiff, Harrison and Julia Swann, who was by then employed as clinical manager, discussed the plaintiff’s workload. The plaintiff understood the outcome to 69 Eaton 1-36 to 1-37 70 Eaton 1-37 to 1-38 71 Eaton 1-38.25-45 72 Plaintiff 2-64.15 73 Eaton 1-39 -- 28 of 69 -- 29 be that Swann would take over the team leader roster. That included the registered and enrolled nurses. The rostering was done in streams – cleaners and kitchen staff; nurses (RN and EN) and personal carers. The plaintiff said Julia Swann did not learn to use the software but would make up a written roster which the plaintiff would input and then print. But Harrison would always change it so the plaintiff would have to re- enter the details. [The plaintiff said Harrison told her not to show Swann how to use the computer because Harrison did not want Swann to discover Harrison’s income. Harrison persuasively rejected this suggestion: ‘I would never say that. That’s – doesn’t make any sense. … Julia knew what I was paid. I shared it with her.’74] [50] It was put to the plaintiff that Harrison told her to guard against becoming too involved with staff personal problems. The plaintiff recalled that Harrison did not want staff coming into the plaintiff’s office. The plaintiff agreed Harrison told her she needed to focus on boundaries and restricting her involvement to work matters. The plaintiff explained that staff came to her with work problems rather than approach Harrison out of fear.75 The plaintiff’s evidence about Harrison’s attitude to workload is summed up in this answer: Because Ms Harrison used to say to me to work within76 your boundaries as an AA. But then when I tried to work within my boundaries as an AA, nobody would assist me to do anything with relatives, new residents. I’d ring her, she’d say deal with it. I would try to leave on-time, someone would ring in sick, she would walk out the door and say bye-bye and I was left trying to backfill shifts.77 [51] As to the first meeting about workload issues, Harrison gave evidence that she told the plaintiff she considered herself a career manager and she intended to carry out her role fully, thereby enabling the plaintiff to concentrate on her role.78 She recalled the plaintiff was absent, for the gall operation, for about 10 days. She might have called the plaintiff on the odd occasion, maybe three times. [52] Exhibit 14 was a list of duties compiled by the plaintiff. She thought she created it shortly before she left the defendant’s employment.79 It reads as follows: ‘Duties at Point Vernon are as follows: 74 Harrison 5-72.5 75 Plaintiff 2-67 to 2-68 76 The transcript reads ‘without’ but if the plaintiff did not say ‘within’ I accept that is what she meant 77 Plaintiff 2-69.10; and 2-85.25; 2-89.40; 2.90.35 78 Harrison 5-10 and 5-13.25 79 Plaintiff 1-92.40 -- 29 of 69 -- 30  Payroll.  Rosters.  Replacement of staff.  Phones.  Reference checks.  Police checks.  Ordering of stationery/Bunzil ordering.  Resident personal purchase.  Monthly deadlines to Central Office i.e. recoverables, chq reconciliations.  Weekly reports to Central Office.  Roster summary.  Invoicing.  Filing.  Actively pursuing all new residents all the time.  Liaising with all external agencies to try and keep occupancy at a premium, this often would take up two days trying to source new residents.  Admission process with new residents, all admission paperwork, meeting with new resident families to ensure their awareness of all policies etcetera, complaints, procedures etcetera.  Organising medicals for all new employees.  Respite bookings.  Sending out relevant info for respite residents.  Resident cash accounts.  Liaising with public trust re resident needs.  Daily enquiries and walk throughs of all perspective [sic] residents. Please also note that all new residents except one that have been admitted to Point Vernon in the last 10 months have been sourced by myself.’ [53] The plaintiff thought Chris O’Brien might have asked her to compile the list but she was not sure. She said she spoke to Grant Clonan and Chris O’Brien about it. [54] The plaintiff was taken through the exhibit in cross examination and spoke to the duties. She repeated that she spoke to Clonan and O’Brien and Belansky about her work load. [55] Harrison was shown Exhibit 14 and agreed that these were duties one would expect the administration assistants to do. She qualified that answer with respect to certain items. As to the rostering, Harrison said the larger part of the work was assembling the rosters. This she progressively took over in the first few months of her employment. The administration assistant’s task was to enter the written roster into -- 30 of 69 -- 31 the computer. She agreed the plaintiff did the payroll work, Harrison’s role being just to check that work. Harrison seemed unfamiliar with the roster summary. As to the creation of rosters, Harrison said she became much more involved and so did the clinical manager. She, the clinical manager and the administration assistant all sought out and tried to find new residents. Harrison particularly credited Julia Swann with achieving results in that regard. As to the role of dealing with prospective patients’ enquiries and walking through the facility with prospective patients, there was a good deal of evidence. Harrison’s view was that the exercise should take 15 or 20 minutes. The plaintiff, she said, would always take much longer. Indeed it was a regular part of the defendant’s argument that the plaintiff spent too long on such processes, leaving herself insufficient time to complete the balance of her duties.80 [56] Harrison recalled that at the meeting in June 2009 the plaintiff listed her duties and Harrison ‘couldn’t see anything in what she said that she was doing that was inappropriate.’81 Harrison said the conversation turned to the length of time some things were taking. There was a discussion about the rosters. [57] As to the rosters, Harrison gave a deal of evidence about the need to change rosters and a consultation process about the changes.82 This was, I accept, a matter within her province. The plaintiff’s complaint is about Harrison’s manner and the amount of work required of her with respect to the rosters. [58] At the June meeting, the plaintiff expressed frustration with the personal carers coming to her with problems. Harrison spoke to her about her role, ‘about recognising that it’s difficult to work with your friends sometimes but she’s not a PC anymore.’83 Harrison also spoke to the plaintiff about the time she spent with prospective residents and families of residents, suggesting that if a family member seems to need a long discussion there could be a clinical issue which needs to be referred to clinical staff and it was outside the plaintiff’s role.84 [59] Harrison’s evidence was that Swann assisted her with the staffing rosters – allocations and shift replacements. Swann said, ‘I was never responsible for rosters while I was 80 Harrison 5-13 to 5-19 81 5-22.45 82 Harrison 5-8 83 Harrison 5-23.10 84 Harrison 5-23.30 -- 31 of 69 -- 32 there.’ But she would help “back-fill” vacancies in the clinical staff by ringing around for a replacement. She was not trained in the use of the Virtual Roster system.85 [60] Harrison’s understanding of Prendergast’s involvement in rostering was, ‘She would do a draft roster of what she thought would work best, and I was very keen to encourage that, because it gave her some ownership over her team, and I think she felt better about being able to do that.’86 This was sharply different from Prendergast’s memory – that she was not required to do this before Harrison; she could not find time to do it at work so she did it at home; she handed her work to the plaintiff who would enter it, print it out and give it to Harrison; Harrison would then change them.87 [61] I do not intend to rehearse the evidence concerning reasons for Harrison’s move upstairs. The only relevant issue is whether it affected the plaintiff’s workload. One of the differences between Harrison’s conduct and Pointon’s was that Pointon, from the neighbouring office, would share the load of liaison with clients and relatives.88 The plaintiff said after Harrison moved upstairs she would sometimes be inundated with relatives and residents and potential clients, which made it difficult to do the rest of her work.89 Although the plaintiff also said that Harrison did not take people around the facility before moving upstairs, her absence from the ground floor increased the plaintiff’s workload. When she told Harrison this, Harrison said ‘you know why I moved my office upstairs; just get over it.’ She spoke very harshly.90 The plaintiff regularly had to go up to Harrison’s office to have her sign documents. [62] The plaintiff gave evidence that she spoke to Grant Clonan when he visited Point Vernon. She told him the workload was extreme. He agreed, saying the Bundaberg administration assistant also had an ‘extreme’ workload and the company was going to look at the job descriptions for the position.91 The plaintiff said she spoke to Clonan numerous times. Occasionally he suggested she speak to Harrison about the workload. She told him she had and that Harrison was not pleasant to her about it.92 During cross-examination the plaintiff said she saw Clonan maybe twice at Point 85 Swann 8-60.40 to 8-61.5 86 Harrison 5-73 to 5-74 87 Prendergast 3-39 to 3-40 88 Plaintiff 2-41.5 89 Plaintiff 1-45 90 Harrison 1-46.35 91 Plaintiff 1-54 92 Plaintiff 1-55 -- 32 of 69 -- 33 Vernon and discussed workloads. She also discussed workloads with him by email, by which it seems she was referring to emails she sent to him about roster summaries.93 Exhibit 22 was a collection of emails between the plaintiff and Clonan, including 6 concerning late sending of the roster summary. These were on 5 November 2009, 19 November 2009 (‘I just made it by deadline, so busy up here at the moment’), 17 December 2009 (‘I have been flat out’) and 6 January 2010. So, by 27 January 2010, the plaintiff wrote, ‘Hi Grant, Tis the pain again . ..’. [63] The plaintiff said she complained about her workload to O’Brien and Belanszky. O’Brien said it was up to her to talk about problems with her FM.94 [64] Belanszky said he had a number of conversations with the plaintiff but did not recall discussions about workload.95 Belanszky was not an employee of the defendant after April 2009, but ‘was a consultant for a year on accreditation and regulatory compliance.’96 That he does not remember discussions about the plaintiff’s workload does not cause me to think they did not happen. Belanszky’s view of the administration assistant position was that it was not particularly onerous. It required work within fixed periods of time and was quite mechanical.97 Conclusions on workload [65] Attempts to reduce the plaintiff’s workload by having others assist with the roster preparation failed because it seemed to lead only to the re-entering of rosters prepared on material from Prendergast or Swann but changed by Harrison. Prendergast was clearly annoyed at the process and did not seem to engage in it for long. Harrison agreed the plaintiff complained about her workload. Generally speaking, Harrison and the Brisbane managers were of the view that the duties allocated were within the position description and were basically mechanical duties. More than once it was pointed out that the Point Vernon facility was one of the smallest conducted by the defendant and all others but one employed only one administration assistant. I think that view did not reflect the reality of the plaintiff’s daily role at Point Vernon. If nothing else, the discussion about the admissions procedure (dealt with below) 93 Plaintiff 2-78 94 Plaintiff 3-13 95 Belanszky 6-7 96 Belanszky 6-5.10 97 Belanszky 6-15.30 -- 33 of 69 -- 34 suggests the plaintiff had been working beyond the position description98 (a document which no-one seemed to refer to in 2009 even though Clonan said ‘all TriCare employees are provided with a position description with their contract’99). Clonan said that some FMs take a greater responsibility for rosters and doing tours for new inquiries.100 The plaintiff was required to do more with respect to rostering and liaison with prospective patients and residents’ families because of Harrison’s attitude to her own role. I think Harrison’s view of the assistance the plaintiff was to receive from Swann and Predergast was inaccurate. It is probable that the plaintiff regularly worked well beyond the standard hours set out in the employment contract. This was not all Harrison’s (or more generally the defendant’s) fault. I think there was much truth in Harrison’s evidence that she counselled the plaintiff to be more disciplined with her time. The failure of such counselling was only partly due to its impracticality. It was in the plaintiff’s nature to spend time with people. But my overall view of the evidence is that the plaintiff was required regularly to work longer than the standard hours because of the nature of her role at that facility in the circumstances which arose during Pointon’s administration and upon the accreditation failure and under Harrison’s administration given the difficult circumstances Harrison inherited and her inexperience in the position. The admissions procedure – Pleaded facts (xxii) [66] The only role for the administration assistant set out in the position description101 concerning the admission of residents is, ‘Compiles resident internal account records on admission and as details change’. The administration assistant is also required to answer ‘general administrative queries for residents, families, visitors and staff’. The FM is required under the position description to ensure all required pre-admission details are accurately recorded.102 It is hardly surprising, despite Harrison’s evidence that the plaintiff’s list of duties (Exhibit 14, set out above) seemed like a reasonable statement of the position, that eventually she came to the view that work the plaintiff did with respect to admission of residents was outside the position description. Not 98 See below 99 Clonan 7-103.30 100 Clonan 8-10.30 101 Exhibits 35 and 36 102 Exhibit 40 -- 34 of 69 -- 35 that she described it as such nor that the defendant admits that in the pleading – it is only pleaded that outside the defendant’s policies.103 [67] Harrison’s evidence of the meeting was that ‘we’d identified, yes, that there were some aspects of it that Robyn was doing that really needed to be done by someone else.’ By this she meant that the plaintiff was actually making decisions about who should be admitted to the facility and then was determining which bed they should go into. And, ‘at the time, we were looking at optimising our income from occupancy.’104 [68] The plaintiff’s evidence is that Harrison said words to her like, ‘who do you think you are to ask a patient [about end of life documents]’.105 The plaintiff said Harrison screamed this at her. [69] Dawn Reynolds, who was said to be at the meeting, had no specific recollection of the discussion.106 I found her to be a quite persuasive witness. Reynolds enjoyed a good relationship with Harrison and admired her. She still works at Point Vernon. Despite these features that may be thought favourable to the defendant she also had a good relationship with the plaintiff. They were both smokers, and regularly took a break together at the designated balcony. The plaintiff complained to her about workload and said of Harrison that ‘she doesn’t get it sometimes and I have to do everything.’107 Reynolds’ observations of the plaintiff and Harrison together were that they ‘seemed to always be pleasant, you know. What’s the word I’m looking for? Professional, you know, conduct.’108 Reynolds had not heard or seen Harrison scream at the plaintiff, at a meeting with Swann or at all.109 [70] Julia Swann also did not remember the meeting about admissions procedure.110 Swann agreed she had written in a statement that the plaintiff ‘was responsible for the admission of patients’ by which she meant the plaintiff completed the documentation to bring them into the facility.111 Swann said she never saw Harrison yell or scream at the plaintiff at a meeting.112 103 Amended Defence paragraph 51 104 Harrison 7-90 to 7.91; 5-39.30 105 Plaintiff 1-68.10 106 Reynolds 8-19.35; 8-24.20 107 Reynolds 8-18.20-35 108 Reynolds 8-17.30 109 Reynolds 8-21.1-5 110 Swann 8-60 111 Swann 8-59.40 to 8-60.10 112 Swann 8-53.45 -- 35 of 69 -- 36 [71] As I have already written, I think it reasonable to infer at least that successive FMs allowed the plaintiff to perform duties beyond the position description. This supports the plaintiff’s claim to have been required consistently to work too hard. Swann and Reynolds provide no support for the other limb of the plaintiff’s case – that Harrison bullied and harassed her. The plaintiff coming between Harrison and other staff – Pleaded facts (xii) and (xvi) [72] Paragraph 32 of the Amended Statement of Claim, in full, alleges: 32. On dates which cannot be better particularised between April 2009 and 12 March 2010, but on at least a weekly basis within that time period: (a) Harrison would, in reference to certain of the friendships which had been struck between the plaintiff and members of the personal carer staff at the work premises, say words to the effect of: “fancy mixing or talking with the scum of the workplace, none of them have any skills, otherwise they wouldn’t be doing this job”; “How many times do I have to tell you not to be friends with the staff here, they are just using you”; “I’ve told you before about talking to the staff and having friends in the workplace, don’t mix with scum like that”; “I can get rid of them just like that- whatever happens behind closed doors is between myself and that staff member and there will be no witnesses so it will be their word against mine.” (b) Harrison would, in response to the plaintiff advising her that these comments were upsetting her or if she attempted to defend another staff member, tell the plaintiff to “toughen up” and “get over yourself”. [73] The defendant denies all of this. The defendant agrees only that the plaintiff would pass on comments from other employees to Harrison, usually after cigarette break. [74] The plaintiff gave evidence of all the statements alleged in paragraph 32(a). She referred many times to Harrison making abusive remarks about the personal carer staff. For example, ‘she said to me I was to have nothing to do with them as they were scum and unskilled people and that if they were any good they wouldn’t be working as a personal carer.’113 [75] As to the incident referred to in September 2009, the plaintiff said a lot of staff had been coming to her for quite a while. Morale was low. She spoke to Harrison on their behalf. Harrison was aggressive in response – ‘Her voice was raised, but even toned.’ 113 Plaintiff 1-55.25 -- 36 of 69 -- 37 – and told the plaintiff to mind her own business and keep away from the scum in the workplace.114 [76] In response to these allegations, Harrison said, ‘I never made such comments about personal carers or any other professional group.’115 As mentioned above, Swann and Reynolds saw no such conduct. Saltmer, another witness who impressed as reliable, mostly worked night shifts but worked two days as trainer. In this role she interacted directly with Harrison. Her observations of Harrison with the plaintiff together were, ‘Professional. I’ve never seen anything unprofessional.’ She did not see a great deal of interaction between Harrison and other employees,116 but what she saw was Harrison speaking quietly, never raising her voice or speaking in a derogatory way.117 On the other hand, Burgess and the witnesses who saw Harrison behave aggressively towards the plaintiff lend considerable support to the plaintiff’s account of Harrison’s conduct. [77] Harrison gave evidence that upon commencing at TriCare and meeting the plaintiff she ‘felt an immediate bond of trust with’ her.118 She was in a difficult situation without appropriate experience. Perhaps she felt unpopular changes were needed; that she felt frustrated at the response to the roster surveys, memos and staff meetings she had organised and that the plaintiff became her repository for invective. A close working subordinate but one whose loyalty was essential. Also, the plaintiff was capable, as I discuss below, of doing things that a fastidious manager with strong ideas about role responsibility and who was working under pressure would find annoying, even stupid. Whatever the psychology, I am persuaded by the plaintiff’s evidence and that of Burgess and other witnesses that it is probable Harrison was disparaging of personal carer staff. It is not probable that Harrison yelled and screamed, although the plaintiff, particularly as her psychological state deteriorated, might have heard it so. It is highly likely Harrison, as she put it, counselled the plaintiff about the boundaries of her role and reminded her she was not a personal carer any more. But I am satisfied her manner of expressing this understandable view was in the harsh terms the plaintiff claims. 114 Plaintiff 1-58 115 Harrison 5-38.35 116 Saltmer 7-6.10 117 Saltmer 6-59.15 118 Harrison 5-7.35 -- 37 of 69 -- 38 [78] I conclude that finding herself repeatedly in the position between Harrison and other staff would have added significantly to the stress the plaintiff experienced in her busy job. Lyndall Prendergast’s complaint – (xiv) [79] The plaintiff’s evidence is that in mid-2009 Harrison told her she had received a complaint from Prendergast concerning another employee, Julie McGrath. When the plaintiff approached Prendergast to find out what was the matter and apologise Prendergast said she had not complained about the plaintiff, but about another employee, Alison Bulkei. Reporting this back to Harrison, the plaintiff was told, ‘just get over yourself …. Nobody likes you here anyway’.119 Prendergast’s recall, at trial, was that when the plaintiff approached her she said she had not complained about the plaintiff, did not know what she was on about and ‘to this day’ did not know.120 [80] Harrison gave evidence as pleaded by the defendant (set out in (xiv) above) and denied the words the plaintiff alleged. [81] That Prendergast told the plaintiff she had not complained does not cause me to doubt Harrison’s evidence of receiving a complaint. As Dr Byth explains, the plaintiff’s interpretation was that Harrison manufactured a false complaint to upset the plaintiff.121 I am not satisfied that the complaint was fabricated by Harrison. Therefore, the only relevant aspect to this material is whether it provides another example of Harrison belittling the plaintiff. Despite my findings against Harrison I have difficulty accepting she would have said something so deliberately demeaning as ‘nobody likes you anyway.’ Harrison’s own evidence, that she regularly cautioned the plaintiff about her role, being independent of the personal carers, was consistent with the plaintiff’s evidence that Harrison would say the other employees were only using her. Even though I accept that part of the plaintiff’s evidence and I have accepted McDonald’s evidence that Harrison called the plaintiff stupid very early in her time at TriCare, I am not satisfied Harrison made the ‘nobody likes you anyway’ remark. It is possibly the plaintiff’s interpretation of the ‘using you’ remark. [82] The Prendergast complaint issue ultimately adds little to the plaintiff’s case. 119 Plaintiff 1-56 120 Prendergast 3-39 121 Byth 3-75.10 -- 38 of 69 -- 39 The journey claim – Pleaded facts (xv) [83] The plaintiff and Harrison both say there was a discussion about whether the plaintiff should prepare the paperwork for an employee to make a claim arising out of a journey to work. The plaintiff said Harrison spoke aggressively and loudly, saying the plaintiff did not know what she was talking about. The event caused the plaintiff to doubt herself. She felt destroyed. She cried. Later, Harrison returned and told the plaintiff to process the claim.122 [84] Harrison said her response was that she was not sure whether such a claim was open and that she would look into it. Harrison said she found out there was such a claim but had no memory of the process thereafter.123 [85] The incident seemed to be of little moment to Harrison but for the plaintiff it was another example of aggressive conduct by Harrison which reduced her self-esteem. Both witnesses probably believe they related the incident accurately. Again, I find the truth lay somewhere in between, but closer to the plaintiff’s account. I think it probable Harrison spoke in a style the plaintiff found aggressive and upsetting, although I do not conclude Harrison actually yelled or ‘got quite loud’. [86] Again, this incident moves the plaintiff’s case very little. The anonymous letter – Pleaded facts (xvii) [87] The plaintiff gave evidence that Harrison came into her room holding a single A4 page letter and said, ‘If I find out who wrote this letter they’ll be sacked on the spot.’ This happened after the occasion on which staff had come to the plaintiff with complaints about Harrison. The plaintiff read the letter. In it, staff were saying they were not happy at point Vernon, morale was low, ‘we’ve written this as a team but we can’t put our names to it for fear of repercussions’. Harrison told the plaintiff the letter came through Clonan. Julia Swann had come in with Harrison. She did not say anything. The incident horrified the plaintiff because it meant a complaint to ‘the people in authority’ would get straight back to Harrison.124 122 Plaintiff 1-59 123 Harrison 5-26 to 5-27 124 Plaintiff 1-60 to 1-61 -- 39 of 69 -- 40 [88] Harrison recalled a letter sent to her from Clonan. She did not keep a copy. She felt personally upset upon reading it.125 She wanted to find out who had written the letter. She could not remember whether she showed the plaintiff the letter. Asked whether she talked to the plaintiff about the letter she said, ‘I probably did. I don’t recall any exact conversation.’ She denied threatening that the writer would be sacked.126 [89] At that stage in the trial (Day 5 - 24 October 2014), no letter had been produced. The trial was adjourned to 30 October 2014 and then to 25 November 2014. On that date, the defendant was granted leave to amend the defence because Clonan had found an anonymously sent letter. It became exhibit 49, attached to an affidavit in which Clonan explained that he limited his earlier searches for a letter, mentioned in paragraph 43 of the statement of claim, to the period when both Harrison and the plaintiff worked for the defendant. This period ended with the plaintiff’s resignation on 12 March 2010. For a different purpose he recently searched his human resources correspondence file for documents relating to Harrison over the whole period of her employment. He found the letter, dated 12 April 2010. The letter runs to a second page. It begins, ‘Following the phone conversation I had with you last week, a group of us have spoken …’ [90] It is unsigned but concludes, ‘Grant, we are not putting our names to this letter due to fear of recrimination by the Facility Manager. Regards Concerned Personal Carers’ [91] Remarkably, Clonan sent the letter by email to Harrison on 28 April 2010. He wrote, ‘Obviously there is no requirement for us to do anything as a result of this letter. People who aren’t prepared to put a name to there (sic) complaint generally don’t have a legitimate gripe.’ 125 ‘I felt gutted.’ 7-16.45 126 Harrison 5-28 to 5-29 -- 40 of 69 -- 41 [92] Clonan had no file note of a phone call the week before the letter and could not recall having any such discussion. [93] Harrison said she could recall receiving only one letter and she identified Exhibit 49 as the latter she received.127 [94] Clonan said, in evidence, he considered there was no need for action because ‘there was only this anonymous letter which related to rostering issues at a time when there were changes being made to the roster at the facility’.128 [95] The plaintiff submits there must have been two letters. Odd though it may be that a letter could be lost, the plaintiff submits the defendant ‘had a problem with maintaining records’ and ‘seems to have lost documents which Ms Harrison thought were important regarding the investigation of Ms Eaton’s workers compensation claim.’ 129 Here the plaintiff refers to Exhibit 50, which includes an email from Harrison attaching memos she gave evidence about, that she wrote during the course of the plaintiff’s employment. The memos were designed to assist the plaintiff and to reduce her workload. These included a memo to reduce staff going to the plaintiff about roster and hours changes; a memo regarding casual staff availability diaries which were to assist the plaintiff with information flows for payroll and rostering; a memo regarding the role and authority of the administrative assistant with respect to rosters which was written at the plaintiff’s request as part of a plan to divert staff away from her; a memo about confidentiality and privacy about providing references; a memo regarding administrative office hours which Harrison wrote aiming to give the plaintiff better space to do payroll and rosters. The point being, these documents were not produced by the defendant. [96] The defendant submits there was only one anonymous complaint letter, and a finding that there were two requires the rejection of Clonan’s evidence that there was only one. It was not put to Clonan his evidence in that regard was false. Mr Mellick submits ‘either the plaintiff is lying about the issue or, upon hearing about the anonymous letter from former co-workers the receipt of the letter has by reason of her impaired psychiatric state become part of her version of events.’ 127 Harrison 7-16 128 Clonan 7-108.10 129 Plaintiff’s written submissions paragraph 38 -- 41 of 69 -- 42 [97] Whatever the psychology, I cannot accept, on the balance of probabilities, that there was an anonymous letter sent by staff other than the one produced late in the trial by Clonan. That is, I do not accept the plaintiff’s evidence of a discussion with Harrison about a letter. The only letter was sent after the plaintiff resigned. Although this finding reflects poorly on the plaintiff’s reliability, the manner in which the letter was admittedly received and dealt with by the defendant’s officers, Clonan and Harrison, reflects poorly on the defendant’s corporate culture and Harrison’s leadership style. This is the only relevance of the evidence of a letter. Checking the payroll – Pleaded Facts (xix) [98] The Administration Assistant position description includes as a task, ‘Manages payroll functions in conjunction with payroll services’.130 The plaintiff said she did the payroll for the centre and it went to the payroll department at central office131 but in the last couple of months, Harrison decided it was her role to approve the payroll. She became intimidating and aggressive about any error. She would say, ‘I expect better than this from you. I don’t ever want to see this happen again.’ She screamed at the plaintiff one day when there was ‘a 0.25 of an hour’ error.132 The unreasonableness in Harrison’s manner of raising the mistake made the plaintiff feel worthless and hopeless.133 [99] The FM position description includes the task, ‘Is accountable for all payroll and accounting functions’.134 Harrison said she accepted the plaintiff’s advice that she, Harrison need not check the payroll before it was sent. Burt after talking to other FMs decided she should check the payroll. This would bring to her any complaints about pay which, until then, the plaintiff received.135 Harrison denied she wold raise a concern about an error of a quarter of an hour. ‘I mean. You always expect to find errors in payroll, particularly that system, which is manual transcription.’136 [100] Harrison’s evidence is of the reasonable response. But I doubt it reflects the reality of the workplace in 2009/2010, given the diminishing assessment Harrison seems to 130 Exhibits 35 and 36 131 Plaintiff 1-62.45 132 Plaintiff 1-63 133 Plaintiff 1-64.10-20 134 Exhibit 40 135 Harrison 5-12 to 5-13 136 Harrison 7-88.35 -- 42 of 69 -- 43 have made of the plaintiff’s competence. It is more likely the small error was picked up and remarked upon, probably sharply so. Again, Harrison might not have spoken as aggressively as the plaintiff claims, but I accept that the plaintiff describes the way she experienced the exchange. The food supervisor incident – Pleaded Facts (xx) [101] The plaintiff’s account of this incident is as follows. Prendergast, the food supervisor, was on stress leave. There was a recruitment process. It came down to two people and Harrison had trouble choosing between them but one was employed. The successful candidate came for a couple of days’ orientation and then did not come back. Harrison was not at work that day. She was at home and contactable by email. The plaintiff contacted the second choice candidate and did not offer her the job but told her to come in the next day ‘and spend the day and also have a chat to Jane Harrison about the position’. She also put the conversation this way: ‘and to – to work in the kitchen, but – and then to liaise with Jane Harrison about the position.’ Later, the plaintiff put it this way, ‘I said, “Come in to orientate, and to see Ms Harrison tomorrow.”’137 The plaintiff sent Harrison an email reporting what she had done. A reply came saying she would meet the plaintiff in the morning and ‘how dare you … I can’t believe you’ve done this’. The next morning she came in and abused the plaintiff about it. She screamed, ‘how dare you?’ She abused the plaintiff so much the plaintiff broke down and offered to resign. Harrison said she would be reporting this to the human resources section. ‘You will hear that they are coming in two weeks.’138 [102] After two weeks of anxiety and no word on the matter from Harrison, the plaintiff inquired. Harrison had done nothing about it. She said, ‘It’s worked out that you made a great decision so just get over yourself and stop worrying about it.’139 [103] Harrison’s account of the incident is as follows. She was “off-site” the day the new person stopped coming in. The plaintiff sent her an email to tell her the news but Harrison did not remember the details. (The email was not produced in evidence.) Harrison wanted the plaintiff to arrange for her to talk to the next in line. The plaintiff contacted the second person on the list ‘and offered them a buddy shift to start the 137 Plaintiff 2-92.35 138 Plaintiff 1-64 to 1-65 139 Plaintiff 1-66.5-25 -- 43 of 69 -- 44 process.’ She knew this from an email. She then told the plaintiff she would have to talk to her the next day. [104] The next day she told the plaintiff that she had, in a de facto way, actually appointed the person, without a delegation to do so and that this was a quite serious departure from acceptable behaviour. The plaintiff did not seem to get the point. She became upset, shaky and teary and asked whether Harrison wanted her to resign. Harrison said, no but she would consult with HR about it and there could be a further process. [105] Harrison appointed the person and decided not to take the matter further.140 She did not yell at the plaintiff or tell her, later, to get over herself. [106] Harrison said she had seen the plaintiff shake several times. The plaintiff had a tremor in her hands. Harrison said the plaintiff was highly emotional and would regularly approach Harrison teary and shaking after speaking at length with family members.141 [107] The plaintiff conceded during cross-examination that she should have spoken to Harrison before inviting the next candidate in. That action would have put the employer in a difficult position had the candidate been unsuitable. It was open to Harrison to be annoyed about the action. It was a step outside the plaintiff’s role. If the threat of disciplinary action was called for the failure to inform the plaintiff as soon as she had decided against the action was not reasonable. It may be that this incident had a strong effect on the plaintiff. If so, it must be that the effect was caused in part by her own sense that she had made a mistake. Harrison’s response might have been excessive - this is difficult to judge from a distance, but Harrison’s response seems like a strong over-reaction and the reference to disciplinary process would be frightening. It is likely that Harrison used the accusative words, ‘how are you?’ Yet I also accept that the plaintiff’s action required some response. The complaint is about the manner of the response and seems well-founded. But it is difficult to process incidents such as this into a case of bullying or intimidation. [108] Mr Mellick, for the defendant, referred in his written submissions to New South Wales v Paige [2002] NSWCA 335; 60 NSWLR 371 at [78] where Spigelman CJ said ‘the body of case law with respect to “a safe system of work” has been, so far as I’m aware, exclusively concerned with the conduct of tasks for which an employee is 140 Harrison 5-35 to 5-36 141 Harrison 5-37.10 -- 44 of 69 -- 45 engaged.’ His Honour considered that the suggestion that the concept of “system of work” extended to matters concerning the incidents of the contract of employments, such as disciplinary procedures, was novel. [109] If, by reference to Paige and cases in which was followed, Mr Mellick submits that incidents such as the kitchen supervisor incident do not give rise to a duty of care because Harrison’s relevant conduct was part of disciplinary process, I do not accept the submission. As it turned out, Harrison took no steps towards a disciplinary action. It was the manner in which she dealt with the plaintiff’s acts outside of her position description which the plaintiff complains of. 11 March 2010 – the phone call – Pleaded Facts (xxiii) [110] The evidence of the protagonists was broadly consistent with the pleaded facts set out above at (xxiii). On 11 March, about 8.30 am, before Harrison arrived and while the clinical manager was out taking her child to school, the telephone rang. It was the doctor of an elderly unwell resident. He asked to speak to the FM. Neither the FM nor clinical manager were available. The doctor asked the plaintiff to give a message to the clinical manager, that the patient’s husband was not to come to the nursing home to remove his wife. The doctor’s message was that ‘if the husband attempted to take her out of the facility he should not be allowed to do so.’142 About half an hour later, when Harrison arrived, the plaintiff gave her this message. Harrison ‘just screamed at me’, ‘who do you think you are to take that message?’ The plaintiff tried to explain but Harrison stormed out. [111] The plaintiff gave evidence that it was usual for her to answer the phone and take messages, including from doctors. She knew the patient, the husband and their daughter.143 [112] The plaintiff said she broke down. She telephoned Harrison, said she could ‘not take this anymore’ and needed to go for a while. Harrison told her to take the rest of the day off and they would speak in the morning. The plaintiff went to her doctor that day. 142 Harrison 7-50.30 – as put by Ms Anderson to Harrison, which Harrison accepted 143 Plaintiff 1-74.35 to 1-75.20 -- 45 of 69 -- 46 [113] Harrison’s view of the day was as follows. The plaintiff told her she had been contacted by a doctor. His concern was that the husband of a patient, who was in the secure unit and did not have capacity, was going to come to the facility to discharge the patient. Harrison asked whether the plaintiff referred the call to the clinical manager. The plaintiff explained the clinical manager was not there. Harrison gained the impression the plaintiff had managed the situation herself. To Harrison, the plaintiff did not seem to understand the need to immediately transfer the doctor to a clinical person, an RN or EN.144 Harrison explained in evidence that this was a matter of care and security of a resident. ‘There was a whole background to that that I obviously won’t go into.’ She thought the doctor and a nurse would work out a strategy to deal with the situation should the family come in which would take into account resident and staff safety. Harrison told the plaintiff she should have referred the call because a team leader needed to make the decision. She left the plaintiff and went to her office. [114] Harrison was frustrated because this was the repetition of the plaintiff exceeding boundaries and failing to follow protocols. Under cross-examination, she said it was not about passing on a message – there needed to be ‘a broader discussion about our obligations’. ‘The husband has an enduring power of attorney.’145 [115] Harrison’s complaint was that the plaintiff’s role was to put the doctor through to a clinician, not to decide to take a message.146 [116] She said the plaintiff rang her and sounded hysterical. The plaintiff said ‘I can’t do it anymore.’ Harrison suggested the plaintiff take the rest of the day off and maybe see her doctor.147 [117] A mere reading of this narrative does not deliver the impact the event had on the plaintiff and Harrison. For both of them it was the straw that broke the camel’s back. For the plaintiff it marked the exhaustion of her capacity to cope with the manner in which Harrison had dealt with her. For Harrison it was the moment she decided the plaintiff required performance management or to leave the organisation should she offer to resign. 144 Harrison 5-41 145 Harrison 7-51.40 146 Harrison 7-53.15 147 Harrison 5-41 -- 46 of 69 -- 47 [118] There is no evidence about what happened with the patient and her family. It is impossible to assess the validity of Harrison’s concerns except to comment that they sound like reasonable management concerns. But if the doctor requested only that the plaintiff take a message it seems harsh to criticise the plaintiff for doing so. That seemed to be Swann’s view.148 Not much time elapsed between the phone call and Harrison’s arrival. The whole incident only became a problem because both the FM and CM were absent. But all of these are management issues. I am satisfied Harrison’s response was harsh and distressing to the plaintiff but Harrison had reason to be exasperated with the plaintiff if there were indeed protocols in place dealing with the situation. The relevant question is whether the incident, alone or considered as part of a course of conduct, breached the employer’s duty to the plaintiff and caused the plaintiff’s serious mental illness. [119] I find it very difficult to conclude so. The plaintiff does not complain, in this incident, of belittling conduct or personal abuse. The plaintiff pleads: ‘Harrison became angry and then walked from the room without further acknowledging the plaintiff.’149 In evidence, this became the allegation that Harrison screamed at the plaintiff. I have already noted that I do not accept Harrison screamed but it is likely she spoke in a stern tone and perhaps the plaintiff experienced it like a scream. [120] The New Zealand flag incident is another example of action by the plaintiff that might have been seen to be unsuitable which, on her account of it, produced an unreasonably harsh response from Harrison. It is unlikely the plaintiff would make up the incident – I accept there was an incident where the plaintiff put the flag in the office and it is possible that Harrison removed it. It is the kind of incident which the plaintiff would remember but that Harrison would have no reason to recall. I give it no further consideration. 12 March 2010 meeting – Pleaded facts (xxiv) [121] On 12 March 2010, the plaintiff and Harrison met, with a cleaner, Rob Fischer, present as a witness. This is another event which the plaintiff and Harrison approached from their own points of view and experienced accordingly. Having spent the rest of 11 March 2010 crying and visiting her doctor, the plaintiff arrived at 148 Swann 8-64.25-40 149 Amended statement of Claim paragraph 68 -- 47 of 69 -- 48 work on 12 March to see an email from Harrison requesting a meeting at 9 am. Another email from Harrison to central office, copied to the plaintiff, read ‘Cease her remote access immediately.’150 Before going to the meeting she typed a resignation letter.151 [122] Harrison, on 11 March, contacted senior managers and, I infer, discussed her next actions. She wrote a directions letter and arranged for Fischer to be her witness at the meeting she planned for the morning. Her object was to go through the letter and, if the plaintiff agreed, they would start a performance management process. If the plaintiff offered to resign, she would accept the resignation.152 Removing the plaintiff’s remote access was to be part of the performance management process.153 [123] There was argument at the meeting about whether Fischer should be there as witness. I need not canvass it. He stayed and took notes which he used, on 25 March 2010, to write an email to O’Brien. That became exhibit 48. Relevantly, it includes:154 Jane began the discussion in a calm manner, commenting to Robyn on her work practices and explaining the problems she saw in things Robyn had done. Robyn quickly became upset and had a very negative attitude towards Jane, accusing her of talking to her “Like she was a piece of shit”. Jane asked me to take note of the comment and remaining calm and responsive to the situation she continued the meeting. Robyn then demanded that I take note of what she had to say. I listened in an attempt to remember what she was saying but before she finished She offered Jane a written resignation, which she had prepared sometime before the meeting. [124] The plaintiff’s evidence was that the first matter Harrison raised was the food supervisor incident. The plaintiff protested that the incident resolved well but Harrison said, ‘I don’t care. This is what I’m telling you.’155 Next Harrison brought up an incident where the plaintiff gave a personal reference about an ex-employee. Harrison said, ‘How dare you give a work reference?’156 By this stage the plaintiff felt ‘absolutely broken.’ Harrison’s tone was ‘very nasty’. The plaintiff was sobbing 150 Plaintiff 1-76.10 151 Plaintiff 1-80.5 - because she was ‘terrified of the email I had received.’ 2-38.30 152 Harrison 5-43.5 153 Harrison 5-44.20 154 I have edited it slightly to correct grammar etc 155 Plaintiff 1-77.35 156 Plaintiff 1-79.25 -- 48 of 69 -- 49 and said she could not work there anymore. She said, ‘I think I need to resign.’ Harrison said, ‘I want your resignation.’ The plaintiff went back to her office and brought the resignation letter to Harrison, who said, ‘you’ve been TriCared out’ and ‘you’ve had too much stress.’ Harrison also said, next week I was going to give you some help.’157 [125] Harrison’s evidence about the meeting was that she started by showing the ‘directives letter’ and going through it.158 The plaintiff spoke about her struggle to let go of what she perceived as being part of the facility manager’s role.159 At some point the plaintiff asked whether Harrison wanted her to resign. Harrison said that was up to her. The plaintiff left and then brought back her resignation letter which Harrison accepted. Then the plaintiff became upset and said, ‘Does it really have to come to this?’160 Harrison said she felt great empathy for the plaintiff but still had to go through proper processes. She gave the plaintiff time to gather her things and eventually walked to the car park with her and hugged her good-bye. [126] The plaintiff denied seeing the directives letter. She also denied Harrison walked to her car and hugged her, saying Harrison walked her to the gate from where she walked down the road to her car. [127] Fisher’s view of the meeting was that Harrison asked the plaintiff questions about her job, things she had not been doing. He could not recall the words exchanged but said the plaintiff became upset and it all then happened quickly. His email report of the meeting did not specifically mention the directives letter but it is consistent with Harrison’s account that she produced the letter. [128] It seems to me there is little in dispute about what occurred at the meeting. It is likely that Harrison used the letter but the plaintiff was in such a state that she did not notice it. I seriously doubt Harrison and the plaintiff hugged at the car but that need not be resolved to decide the claim. [129] I have not canvassed the evidence concerning the plaintiff’s giving a reference about an ex-employee. It is enough to say that she did; she thought there was no reason not 157 Plaintiff 1-81.5 158 Harrison 5-45.5 159 Harrison 5-46.20 160 Harrison 5-47.10 -- 49 of 69 -- 50 to because it was a personal reference; yet the plaintiff assumed that the person was inquiring about the ex-employee ‘because they were going to employ her’!161 It probably breached a protocol and she should not have given it. Except that it was raised by Harrison at the 12 March 2010 meeting it has little bearing on the resolution of the issues in the trial. It does not advance the plaintiff’s case. [130] Pleaded facts (xxv) concerns a general complaint about Harrison’s conduct over a twelve month period from April 2009 to March 2010. As to the ‘belittling’ comments, the plaintiff said they were constant.162 On several occasions the plaintiff said Harrison used the terms, ‘get over it’.163 I have referred throughout this traversing of the evidence to many such examples. And as set out above, the plaintiff called witnesses who confirmed various aspects of the alleged behaviour. On the other hand, the defendant called witnesses whose observations were quite different – Reynolds, Swann, Saltmer. It is not necessary to find that every interaction between Harrison and the plaintiff was harassing. I am satisfied Harrison regularly conducted herself in an unreasonable manner towards the plaintiff. I have generally accepted the plaintiff’s evidence but stopped short of accepting that Harrison made the statement, ‘nobody likes you anyway.’ I have set out the reasoning above under the heading - The arrival of Harrison. The duty of care [131] The plaintiff’s claim is in negligence and breach of the employment contract.164 In Tame v The State of New South Wales (2001) 211 CLR 317, Gleeson CJ said that, in the law of negligence, carelessness involves: ‘a failure to protect the interests of someone with whose interests a defendant ought to be concerned. A definition of the ambit of a person's proper concern for others is necessary for a decision about whether a defendant's conduct amounts to actionable negligence. The essential concept in the process of definition is reasonableness. What is the extent of concern for the interests of others which it is reasonable to require as a matter of legal obligation, breach of which will sound in damages? [8] … 161 Plaintiff 3-14 162 Plaintiff 2-41.15 163 Plaintiff 2-84.25; 1-38.40; 1-45.40 – ‘her favourite saying’; 1-46.35; 1-58.25 164 Counsel for the defendant, Mr Mellick, while pointing out that the claim is endorsed only for damages and loss consequent on the negligence of the defendant, the defendant takes no point with the pleading alleging breach of the contract of employment as the employer’s duty in tort is co-extensive with the duty implied in the contract i.e. the content is the same. -- 50 of 69 -- 51 A necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed. …… It is important that “reasonable foreseeability” should be understood and applied with due regard to the consideration that, in the context of an issue as to duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated. [12]’ [132] An employer owes an employee a duty to take all reasonable steps to provide a safe system of work. That includes a duty to take reasonable steps to avoid a risk of psychiatric injury to an employee. It is a threshold issue – whether the relevant duty was engaged by the reasonable foreseeability of psychiatric injury to the plaintiff. [133] The High Court, in Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44, considered the content of an employer’s duty of care in a case where it is claimed the duty obliged the employer to avoid a risk of psychiatric injury to an employee by altering the work expected of the employee. That is not precisely the present case but it is still useful to note the opinion of McHugh Gummow Hayne and Heydon JJ that in such a case the duty owed requires consideration of the obligations arising under the contract of employment, equity and statute. At [33] their Honours said: ‘The central inquiry remains whether, in all the circumstances, the risk of a plaintiff .... sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.’ [134] Their Honours were not attracted by the proposition that “all employers must now recognise that all employees are at risk of psychiatric injury from stress at work.” (222 CLR 44 at 57 [34]) but went on to say, at [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. That is why, in Hatton165, the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.’ [135] In their written submissions, counsel for both the plaintiff and defendant addressed the question whether the ‘person of normal fortitude’ test applied in determining the content of the duty of care owed. In Tame, Gleeson CJ said: ‘Furthermore, there may be something about the vulnerability or susceptibility of a particular plaintiff that makes it unreasonable to require a person to have 165 [2002] 2 All ER 1 -- 51 of 69 -- 52 in contemplation the kind, or perhaps the degree, of injury suffered. In the context of remoteness of damage, it is established that a tortfeasor must take a victim as the victim is found; but we are presently concerned with whether there is a duty of care, and whether a tort has been committed. Putting to one side cases where a defendant knows, or ought to know, of the peculiar susceptibility of a plaintiff, the law has established what Brennan J described in Jaensch v Coffey166 as “an objective criterion of duty”. The variety of degrees of susceptibility to emotional disturbance and psychiatric illness has led courts to refer to “a normal standard of susceptibility” as one of a number of “general guidelines” in judging reasonable foreseeability. This does not mean that judges suffer from the delusion that there is a “normal” person with whose emotional and psychological qualities those of any other person may readily be compared. It is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm. Such people might include those who, unknown to a defendant, are already psychologically disturbed. That idea is valid and remains relevant, even though “normal fortitude” cannot be regarded as a separate and definitive test of liability.’ [136] Gummow and Kirby JJ, at [197], explained that the concept that a plaintiff has no action unless he or she be an individual of normal fortitude was said to derive from the speech of Lord Wright in Bourhill v Young [1943] AC 92. Gummow and Kirby JJ went on to say: ‘…. it is made plain in that passage that the attention to the notional person of “normal fortitude” is the application of a hypothetical standard that assists the assessment of the reasonable foreseeability of harm, not an independent pre-condition or bar to recovery. [197] …….. it does not follow that it is a pre-condition to recovery in any action for negligently inflicted psychiatric harm that the plaintiff be a person of “normal” emotional or psychological fortitude or, if peculiarly susceptible, that the defendant know or ought to have known of that susceptibility. [199] ….. because the criterion is an objective one, what is postulated is a general (and contemporary) standard of susceptibility. It is in that context that references in judgments of this Court to hypothetical “ordinary” or “reasonable” standards of susceptibility to psychiatric harm are to be understood. [200] However, the concept of “normal fortitude” should not distract attention from the central inquiry, which 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. [201]’ 166 (1984) 155 CLR 549 -- 52 of 69 -- 53 [137] Callinan J. said, in Koehlor v Cerebos at [55] that foreseeability ‘is not to be assessed by reference to a notional person of normal fortitude, but on the basis of the impression created by, and the other overt or foreseeable sensitivities of, the actual person affected.’ [138] The plaintiff’s case is not that she was vulnerable or in a special position that the defendant should have been aware of. [139] The plaintiff was not a manager or team leader. But she occupied a position between other staff and Harrison and between families of patients and Harrison. She had been a personal carer – and was obviously very experienced and admired in that role. She became the go-to person for staff, perhaps when they should have gone to management. Harrison said, ‘we talked about boundaries around her role and about recognising that it’s difficult to work with your friends sometimes but she’s not a PC any more.’ (5-23.10) [140] In comparison with, say, the clinical manager, or a team leader such as Prendergast, the position of the plaintiff carried with it the risk of vulnerability on her part. [141] On the other hand, the plaintiff presented as very well experienced and qualified for the position. The plaintiff’s evidence, tendered to prove her substantial capacity as a reasonable and reliable worker, and to contradict a defence that she has long suffered a generalised anxiety disorder, or at least to reduce the relevance of any such disorder, also provides the defendant with the argument that the plaintiff’s agreement to undertake her role, and the representations of fitness for the role express and implied in her application material, undermine the contention that it ought to have appreciated that the performance of her duties posed a risk to her psychiatric health. [142] There was some evidence to the effect that the plaintiff visibly deteriorated over the term of Harrison’s management. This evidence was divided along party lines. i) The plaintiff said that in September 2009 around the time she reported complaints from other staff to Harrison, Harrison’s response upset her so much she started to cry. She told Harrison she felt intimidated and felt bad when being spoken to like that. Harrison just said ‘I’ll speak how I like, just get over it.’167 167 Plaintiff 1-58.35 -- 53 of 69 -- 54 ii) The plaintiff said Harrison’s conduct with respect to the journey claim also made her cry. At that time she felt destroyed.168 iii) On the occasion of the kitchen supervisor incident, the plaintiff said that Harrison abused her so much that she broke down and asked whether she should resign.169 iv) On 11 March 2010, the phone call from the doctor, the plaintiff said she broke down after Harrison spoke to her. The plaintiff required the day off and went in to her doctor.170 v) Prendergast said that the plaintiff seemed a lot more stressed after Harrison became the facility manager.171 vi) Thompson said that when she was a personal carer the plaintiff was happy-go- lucky and very outgoing. After she became secretary it was harder to see her. When asked whether he noticed a difference after Harrison had become the facility manager Thompson said that the plaintiff was a very sad and depressed lady.172 vii) Lorraine Friedrich was a long-time friend of the plaintiff. Over the years they had mainly kept in touch by telephone. She gave evidence in detail of the plaintiff’s disposition over the years. She had shared many of the plaintiff’s experiences over the years. For example, she spoke of the plaintiff in 2002 having to deal with her son’s drug addiction. Friedrich said the plaintiff was a strong woman and coped with all of those things. However, at the beginning of 2010, the plaintiff was reporting to Friedrich how stressful her work was. The plaintiff sounded depressed. She was not her former bright and bubbly self.173 viii) Carberry said that after the arrival of Harrison, the plaintiff, as time went on, became withdrawn. He saw her crying.174 168 Plaintiff 1-59.45 169 Plaintiff 1-65.40 170 Plaintiff 1-75 171 Prendergast 3-44.40 172 Thompson 3-109 to 110 173 Friedrich 4-5 to 4-6 174 Carberry 4-22.30 -- 54 of 69 -- 55 ix) I have already referred to the evidence of Morris. She saw the plaintiff upset after an incident she witnessed between Harrison and plaintiff.175 x) The plaintiff’s husband, Dennis Eaton, gave evidence. Relevantly, he gave evidence that at one stage, probably in 2009, problems were starting to arise with the plaintiff. For the first time she commented that she did not want to go to work. He did not know what was wrong with her but suspected a mental problem of some sort. By the time she resigned in 2010 ‘she was a complete mess’.176 xi) Harrison gave evidence about the plaintiff’s emotional state, including that she was emotional and teary. Harrison’s evidence was that the emotional state was evenly laid out across the whole period of her involvement with the plaintiff.177 On one occasion, Harrison saw the plaintiff emotional and teary after a long phone call with a friend of a resident.178 Harrison denied that the plaintiff told her that the way she spoke made the plaintiff feel bad.179 When asked whether the plaintiff was a cheerful person, Harrison said ‘when she wasn’t upset. It seemed to vary quite a lot.’180 Harrison seemed to have an appreciation that the plaintiff tended to become emotionally upset. As to the meeting of 12 March 2010, she said ‘this directive’s letter was around putting some boundaries around Robyn’s work habits so that she didn’t find herself in such a distressed state.’181 xii) Belanszky gave evidence that he did not see the plaintiff cry or in an unhappy state.182 xiii) Saltmer did not think the plaintiff was overly emotional.183 xiv) Reynolds commented that the plaintiff could ‘stress over things pretty easily and become flustered’. Reynolds continued that the plaintiff could become 175 Morris 4-37 176 Eaton 4-57 to 4-58 177 Harrison 5-62 178 Harrison 5-23.40 179 Harrison 5-62 180 Harrison 7-23 181 Harrison 7-57 182 Belanszky 5-28 183 Saltmer 7-5.15 -- 55 of 69 -- 56 frustrated quite easily. She said the plaintiff was always quite fiery, ‘she wasn’t one of the quieter ones of us.’184 xv) Swann noticed the plaintiff had a nervous disposition. She noticed the plaintiff had a shake of her hands.185 She said that the nervousness that she saw seemed the same for the whole time that she was there.186 Towards the end of the plaintiff’s employment, she was telling Swann that she felt more stressed about her work.187 [143] On balance, this evidence supports a finding that the plaintiff’s apparent psychological state deteriorated during the period she was under the management of Harrison. [144] There seems to be no dispute that the plaintiff, certainly between April 2009 and March 2010, complained about her workload.188 [145] The plaintiff gave evidence that she told Harrison the latter’s conduct was affecting her feelings. The plaintiff said that when Harrison first spoke to her in a harsh and nasty way she said to her, ‘Jane you’re making me feel really bad the way you’re speaking to me. I feel bad’. Harrison simply told her she would speak however she liked and told the plaintiff to get over herself.189 This might have been as early as May 2009. I have already mentioned the occasion in about September 2009 when the plaintiff told Harrison she was feeling intimidated by Harrison’s conduct. Harrison denied these complaints were made to her and whereas I favour the view that the plaintiff made the complaints to her, it is likely Harrison did not hear them as the plaintiff meant them to be heard, or that Harrison simply has forgotten. Harrison gave evidence of the plaintiff that ‘asking if she was in trouble was a fairly routine part of her behaviour in the workplace from the get-go.’190 Earlier during cross-examination, Harrison was asked, ‘so you’re saying that there were times in the course of her employment that she raised with you this question of whether she was in trouble or not?’ Harrison replied, ‘she would – when we talked about an issue that, you know, I 184 Reynolds 8-25.25 to 35 185 Swann 8-54.20 186 Swann 8-57.30 and 8-70.20 187 Swann 8-62.5 and 8-71.10 188 Harrison 7-87.40 189 Plaintiff 1-39.10 190 Harrison 7-98.15 -- 56 of 69 -- 57 might not have agreed with how she handled it or vice versa, then out of the blue she would say am I in trouble or do you want me to resign?’191 [146] As to whether complaints were made to others in the defendant’s management structure, the plaintiff said during cross-examination she had spoken to several persons. She named some but said she could not remember.192 She said she used the expression, ‘I was getting a very hard time.’193 The more the cross-examiner asked, the more information came out. The plaintiff said she spoke to Belanszky, Jill Patience and O’Brien. It was put to her she had not made these claims before. A document produced by the plaintiff’s counsel apparently included the allegation that the plaintiff spoke to O’Brien about Harrison’s treatment of her on 18 March 2010, that is, after her resignation.194 The result seems to have been that no written complaint was made while the plaintiff was employed by the defendant. I refer to these matters only for completeness because, as Ms Anderson writes in the plaintiff’s written submissions, the plaintiff does not claim to have reported Harrison’s behaviour to her superiors. The plaintiff’s evidence was she believed a complaint had been made (the anonymous letter) and that any complaint was futile.195 Similarly, Mr Mellick, in his written submissions, writes the plaintiff has not pleaded nor set out to prove that the defendant was on notice in respect of the conduct of Harrison. In this regard, he distinguishes the present case from Wolters v The University of the Sunshine Coast [2012] QSC 298.196 [147] The defendant’s duty, as pleaded in paragraph three of the amended statement of claim, was to exercise reasonable care for the plaintiff’s health and safety in her employment by not unnecessarily exposing her to risk of psychiatric injury. The plaintiff relies on the conduct of Harrison and its effect on her in combination with the workload issues to prove a breach of the duty. The plaintiff argues that looking forward, it was reasonably foreseeable the plaintiff would suffer a recognisable psychiatric injury as a result of the pleaded events. 191 Harrison 7-56.32 192 Plaintiff 2-18.25 193 Plaintiff 2-10.25 194 Plaintiff 2-26.5 195 Plaintiff’s written submissions paragraph 102 196 And [2013] QCA 228 -- 57 of 69 -- 58 [148] As set out above, I have made limited findings in favour of the plaintiff with respect to her workload and the conduct of Harrison. These matters are relevant to the assessment of the content of any duty owed by the defendant. [149] I am not satisfied the plaintiff has proved that, in the circumstances that I have found, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable. [150] It is insufficient for the plaintiff to rely on any notice that Harrison might have had of the plaintiff’s distress. Harrison was not, even on the plaintiff’s case, the mind of the defendant. I am not saying that I am satisfied Harrison personally appreciated or ought to have in the circumstances appreciated the reasonably foreseeable risk of the plaintiff sustaining a recognisable psychiatric illness. As I have recently noted, the plaintiff does not claim to have reported Harrison’s conduct to Harrison’s superiors. There may well be a case where that is not fatal to a plaintiff’s claim. But the plaintiff was in Hervey Bay with easy contact to Brisbane. The evidence shows the regularity with which staff from head office attended Point Vernon and the availability by email the plaintiff had with senior officers such as O’Brien and Clonan. [151] The circumstances relevant to the assessment of the foreseeability of the reasonable risk of serious psychiatric injury also include the plaintiff’s presentation of her qualifications and experience for the position, the requirements of the position, the putting in place of an apparently well qualified manager, and the plaintiff’s complaints to anyone who would listen about the workload issues. In my view, the claim must fail because the relevant duty was not engaged by the reasonable foreseeability of psychiatric injury to the plaintiff. Breach of duty [152] On the question of breach of duty, Spigelman CJ said, in Nationwide News P/L v Naidu and Anor [2007] NSWCA 377; (2007) Aust Torts Reports ¶81-928: ‘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. -- 58 of 69 -- 59 An employer can be liable for negligence because of a failure to protect an employee against bullying and harassment. However, the existence of such conduct does not determine the issue of breach of duty. As Hayne J put it in Tame supra at [296]: [A] plaintiff will not recover damages for an injury which psychiatric opinion recognises as a psychiatric injury by demonstrating only that such an injury was reasonably foreseeable and that the defendant’s negligence was a cause of the injury which the plaintiff sustained.’ [153] In Hegerty v Queensland Ambulance Service [2007] QCA 366, Keane JA said at [47], ‘“litigious hindsight" must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law's insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee's mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard.’ [154] The plaintiff pleads the defendant has breached its duty of care in two ways. The first is that the defendant is vicariously liable for Harrison’s conduct. Alternatively, the defendant committed 14 failures, as follows, a) failed to undertake any or any reasonable or timely process of risk assessment of the plaintiff’s work environment/culture and duties of the kind set forth in the Risk Management Code of Practice 2007 once the plaintiff told her supervisors of the considerable stress she was experiencing; b) failed to implement and enforce a Workplace Harassment Prevention Policy of the kind described in Part 8.1 of the Prevention of Workplace Harassment Code of Practice 2004; c) failed to implement a complaint handling system of the kind described in Part 8.2 of the Prevention of Workplace Harassment Code of Practice 2004, providing for both informal and formal complaint handling procedures; d) failed to implement and enforce a procedure for training and education of the kind described in Part 8.4 of the Prevention of Workplace Harassment Code of Practice 2004, which process ought to have, inter alia, provided training and education to workers, including to Harrison, to allow those persons to become more conscious of their behaviour and to gain a more accurate knowledge of what did and did not constitute workplace harassment in the circumstance; e) failed to implement and enforce a system of monitoring and reviewing of workers’ behaviours, as recommended in Part 9 of the Prevention of Workplace Harassment Code of Practice 2004, which system would have allowed the defendant to review the behaviour of Harrison and would have highlighted the conduct set forth at paragraphs 32 to 77 herein; -- 59 of 69 -- 60 f) failed to subject its staff members, including Harrison, to such scrutiny, observation and surveillance as would have obviated the bullying and harassment upon the plaintiff; g) caused, permitted and/or required the plaintiff to undertake, or alternatively, to continue to undertake work hours which were excessive and beyond the defendant’s contract of employment with the plaintiff in circumstances where the defendant knew, or ought to have known because of the plaintiff’s complaints of stress, of the risk of injury to the plaintiff in the circumstances; h) failed, despite repeated requests by the plaintiff, to implement any or any reasonable process, for the monitoring of her workload and client demands, which process would have alerted the defendant to the foreseeable risk of injury to which the plaintiff was exposed in the circumstances of her work; i) failed, despite repeated requests by the plaintiff, to implement any or any reasonable process, for the monitoring of the plaintiff’s personal workload and demands and an intervention policy, which should have included both formal and informal contact procedures, and which processes would have alerted the defendant to the foreseeable risk of injury to which the plaintiff was exposed in the circumstances of her work; j) failed to heed and/or take reasonable action in relation to the complaints and requests made by the plaintiff, in relation to her workload and client demands, in circumstances where such reasonable action ought to have effectively reduced the workload being undertaken by the plaintiff; k) failed to implement any or any reasonable and appropriate system of investigation into complaints of excessive workload in circumstances where, on numerous and ongoing occasions, it was alerted to these issues by the plaintiff and others; l) failed to provide the plaintiff with access to supplementary skilled staff resources for critical periods where such failure caused the plaintiff’s workload to remain excessive and beyond the level dictated by the contract of employments; m) failed to provide the plaintiff with access to staff with the requisite skill set to perform the requirements of their own role in circumstances where it was reasonably foreseeable that the plaintiff, in her role as an administration assistant, would be required to provide extensive assistance and/or to undertake further work in order to cover for the skills deficits; n) failed, in the premises of the facts in each of the preceding sub-paragraphs, to provide for the plaintiff a safe system of work. [155] ‘An employer is vicariously liable for a tort or other actionable wrong committed by an employee in the course of employment’: Beazley JA in Nationwide News P/L v Naidu and Anor [2007] NSWCA 377; (2007) Aust Torts Reports ¶81-928 at [240] referring to Deatons Proprietary Limited v Flew (1949) 79 CLR 370 at 379; State of New South Wales v Lepore (2003) 212 CLR 511. The plaintiff has not pleaded what -- 60 of 69 -- 61 tort Harrison committed that the defendant is vicariously liable for. It is not pleaded, nor do I understand the plaintiff’s argument to be, that Harrison was negligent. The plaintiff alleges, in paragraphs 77-80 of the amended statement of claim (Pleaded Facts (xxv – xxvii) above) that Harrison deliberately conducted herself in a way that would amount to workplace harassment. The claim against the defendant is brought in negligence. Harrison’s intentional wrongdoing is relevant only if the plaintiff draws a clear connection between that conduct and the negligence of the defendant. [156] The plaintiff, in written submissions, refers to Nationwide News P/L v Naidu as an example of a company held liable for the actions of its officer even when the actions breached the company’s policies provided the acts were performed in the scope of employment. That is not controversial197, but in my view, Nationwide News P/L v Naidu does not support the plaintiff’s vicarious liability pleading and argument. In that case, the trial judge held Nationwide News “liable in negligence” but the reasoning was directed to a finding of vicarious liability for an intentional tort.198 [157] Mr Mellick argues that the first five particulars of negligence are irrelevant because the standards of codes are not the standards of the common law. Ms Anderson replies that a determination of what is reasonable care is one of fact. The question is whether the defendant has failed to take reasonable care to avoid foreseeable injury.199 So, a failure to implement codes shows a lack of reasonableness. In Leighton Contractors P/L v Fox (2009) 240 CLR 1 at [49], the whole court said, ‘While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed … into a duty of care at common law.’ [158] The particulars reflect the plaintiff’s case that the defendant breached its duty of care by failing to appropriately respond to her workload and by failing to identify and address Harrison’s conduct. As to workload, the submission is that no risk analysis was ever undertaken to determine whether the plaintiff’s workload issues posed a risk of psychiatric injury. As to Harrison’s conduct, the plaintiff does not claim to have told the defendant about Harrison’s conduct but says the defendant did not have in 197 New South Wales v Lapore (2003) 212 CLR 511 198 Nationwide News P/L v Naidu and Anor [2007] NSWCA 377 Basten JA at [387]; Spigelman CJ said, at [68], ‘His Honour made all of the findings of primary fact required to establish the tort but refrained from concluding that the cause of action had been made out.’ 199 Wyong Shire Council v Shirt (1980) 146 CLR 40 -- 61 of 69 -- 62 place a system to monitor and review Harrison. The inference the plaintiff seeks to have drawn is that ‘had the defendant put in place a system to appropriately monitor the behaviour of Harrison they would have been aware of the breaches of the workplace harassment code’200 and its own policies201. [159] I repeat that I am not satisfied the plaintiff has demonstrated the reasonable foreseeability of a serious psychiatric illness in the plaintiff’s workload and Harrison’s conduct such as to engage the duty of care the defendant owed its employees. The plaintiff must fail on the question of breach on the same ground. But leaving that aside, a number of matters raised in the evidence tend against a finding of breach of duty. [160] I have set out evidence as to overt emotional behaviour of the plaintiff. Whereas these might have been signs suggesting an adverse effect on the plaintiff’s mind, Harrison’s evidence of the plaintiff’s habit of asking whether she was in trouble and should resign rang true. What is required is foreseeability of a recognised psychiatric illness. This evidence does not, in my opinion, reach the level of possibility of psychiatric illness which would require the employer to intervene. [161] Again, Spigelman CJ in Nationwide News P/L v Naidu, at [60]: ‘An employer… [is] not, in my opinion, required to have in place systems of inquiry and/or response, to manifestations of mental disturbance in order to determine whether or not the disturbance is work related and, if so, to remedy the situation.’ [162] The defendant demonstrated systems in place to guard against a breach of duty. These included the matters set out in the staff handbook202 and the Workplace Harassment203 Policy. The plaintiff had, as I have noted above, ease of communication with managers in Brisbane, and an apparently good relationship with them. [163] It was not suggested care was not taken in the appointment of Harrison. She was apparently well qualified. She was on probation for a period and, although she could not remember precisely, she vaguely recalled, at counsel’s suggestion, that she was reviewed at four to six weeks and at 12 to 14 weeks.204 The evidence suggested there 200 Plaintiff’s written submissions, paragraph 103 201 Plaintiff’s written submissions paragraph 36 202 Exhibit 19 203 Exhibit 34 204 Exhibit 44 -- 62 of 69 -- 63 were regular visits to the facility by Brisbane based managers. It is not clear from the plaintiff’s submissions what system should have been put in place to monitor Harrison’s conduct which would have revealed behaviour in breach of the workplace harassment code or the employer’s duty to the plaintiff. [164] It is tolerably clear Harrison put in place several measures to help the plaintiff rein in her workload and to allow her to work in a more disciplined way with fewer interruptions. I have mentioned the various memos Harrison promulgated – they are not in evidence but Ms Anderson pointed Harrison to an email in which she referred to them205 and I do not understand the plaintiff to have denied these actions by Harrison. Harrison and the plaintiff met to discuss the plaintiff’s workload and list her duties. I have also commented that some of the measures tried, such as the sharing of the roster preparation load, did not alleviate the plaintiff’s load. And some of the overload was, as I have found, due to the plaintiff’s inability to, for example, spend less time with prospective clients and families. It might not be that she once took three hours to guide people through the facility, but regularly taking one hour or more was inconsistent with the experiences of others.206 Organisationally, a single administration assistant supported all but one of the other facilities the defendant operated. [165] I am not satisfied that, had the defendant’s duty of care to the plaintiff been engaged by the risk of reasonably foreseeable psychiatric injury, the defendant has been shown to be in breach. Causation and the medical evidence [166] The plaintiff claims that the combination of her workload during the time Harrison was manager and Harrison’s conduct towards her caused personal injury in the form of a psychiatric injury.207 Because of my findings with respect to duty of care and breach of duty it is unnecessary to spend much time on the question of causation. Having said that, I am satisfied on the balance of probabilities that the combination of the two stressors brought about psychiatric illness. 205 Exhibit 51 206 ‘Half an hour tops’ – Swann 8-51.45 207 Amended statement of claim paragraph 82 -- 63 of 69 -- 64 [167] With respect to causation, Mr Mellick makes a detailed attack on plaintiff’s case because of the variations in the histories each psychiatrist received, in writing from the plaintiff’s solicitors208 and orally from the plaintiff and the statement of claim and a statutory declaration made in February 2012. Mr Mellick referred to Midwest Radio Ltd v Arnold [1999] QCA 20. In that case, there was a very real possibility that the medical witness whose opinion was accepted based his opinions partly on matters that were rejected by the trial judge in making his findings, or on evidence which the judge did not in the end accept. McPherson and Williams JJA held the plaintiff failed at trial to establish her cause of action. The proposition is that the plaintiff must fail for the same reason. [168] I have made findings that certain alleged incidents did not occur (the anonymous complaint letter), or did not occur as the plaintiff described them or occurred but without the sting the plaintiff claims she suffered from the incident. Where the doctor’s opinion is based in part of such an incident, is the opinion of no value? [169] Ultimately, I feel comfortable drawing, from the psychiatric opinion, certain conclusions while taking into account the variations in base facts. This is because of the nature of the findings I have made inconsistent with the plaintiff’s account to the doctors. So, for example, although I am not satisfied Harrison said, ‘well, nobody likes you anyway’ that need not reduce the effect on the plaintiff of the incident during which she alleged Harrison said those words. It is the effect on the plaintiff that the psychiatrists have the expertise to evaluate. [170] If this approach seems contrary to the reasoning in Arnold, it may be defensible on the basis that it is a practical approach. It does not seem realistic or reasonable in a case such as the present, where many particulars of conduct over a long period of time are relied on for their cumulative effect, for the expert to offer an infinitely calibrated set of opinions furnished according to the possible combinations of accepted facts. The alternative would be for the trial judge to make findings of fact before the opinion evidence is called. And that does not seem workable. [171] In any case, given my findings on duty of care and breach, for the moment at least, this section of these reasons is not determinative of the outcome. 208 Exhibits 30 and 31 -- 64 of 69 -- 65 [172] Professor Whiteford and Dr Byth both examined the plaintiff several times and have given several reports. [173] Professor Whiteford saw the plaintiff first, on 7 October 2010. Based on the history she gave him and his examination of her, Professor Whiteford considered she had clinically significant depression. His diagnosis was Adjustment Disorder with mixed anxiety and depressed mood. From the information available to him, workplace stressors were significant in the onset of the disorder. No significant non-work stressors were reported. Because of her good “premorbid personality” it would be expected that the plaintiff would recover, particularly with the help of cognitive therapy. [174] Eventually Dr Whiteford changed his opinion. After he was provided with a full medical history of the plaintiff and after the plaintiff’s condition deteriorated, in a report dated 18 March 2013, Professor Whiteford said, ‘With respect to a pre-existing disorder, it is clear Ms Eaton has a significant past psychiatric history, with fluctuating anxiety and depression documented in her medical records in 2002, 2004, 2005, 2008 and 2009 (prior to May 2009). I believe Ms Eaton’s pre-existing anxiety disorder was exacerbated by work stressors between May 2009 and March 2010. As Ms Eaton was able to work despite the treatment she needed for her anxiety symptoms it is unlikely that her level of pre-existing impairment (before May 2009) was more than 5 per cent.’ [175] At trial Professor Whiteford’s diagnosis was that the plaintiff suffered an anxiety disorder and a depressive disorder. Asked whether the depressive disorder arose from the events that occurred in the workplace in 2009 to 2010, he said, ‘that seemed to be the trigger for its onset.’209 Dr Byth’s diagnosis was that the plaintiff suffered from major depression with prominent associated anxiety and agitation. The anxiety and agitation components were worse in November 2013 than they were in August 2012. [176] Professor Whiteford considered that once the litigation was over, especially if Ms Eaton moved from Hervey Bay, she would have a significant chance of improvement in her symptoms and impairment. Dr Byth did not agree with that opinion. Dr Byth considered the plaintiff would be unwell wherever she lived. Dr Whiteford’s opinion is consistent with the observations of the plaintiff’s husband and the plaintiff’s evidence of her fear of encountering Harrison should she go out at 209 Whiteford, 4-98.15 -- 65 of 69 -- 66 Hervey Bay. Mr Eaton said the plaintiff was living a fairly reclusive life at Hervey Bay. When the couple came to Brisbane, he said she was quite good. They would go out for walks and ‘get something to eat, no worries’.210 [177] Both doctors consider it unlikely the plaintiff will work again. [178] The primary dispute between the doctors was whether the plaintiff had a pre-existing generalised anxiety disorder. I have referred to Dr Whiteford’s notes of the plaintiff’s medical history. The plaintiff did not disclose any psychiatric history to Dr Whiteford when he first examined her. Even at trial she denied relevant psychiatric history on the basis that she had been prescribed antidepressants and anti-anxiety medication to treat symptoms of menopause and had never felt as he has since the events relevant to the trial. [179] Dr Byth did not accept the plaintiff had been suffering from generalised anxiety disorder, although he thought the plaintiff had intermittent, mild anxiety and depression that was treated intermittently. Dr Byth pointed out that the plaintiff was still working throughout all of the periods of the earlier medication and was still functioning socially. Dr Byth thought there were probably minor psychiatric presentations which would not warrant a diagnosis of an anxiety disorder or a depressive condition.211 [180] Professor Whiteford was of the view that the pre-existing anxiety condition was still existing and the depressive disorder appeared to have started after the problems the plaintiff encountered at work and have fluctuated but have continued since. The last time he saw the plaintiff, Professor Whiteford formed the view that she had a major depressive disorder sufficient to require her to be hospitalised and the condition was much more severe than what he had observed when he first examined her in 2010.212 [181] Dr Byth said that if the plaintiff had a pre-existing condition at all it was barely noticeable to her and not noticeable to the people she was working and living with. In those circumstances it must have been very mild. Dr Byth was of the view that the particular drug being prescribed was popular if not overprescribed by GPs because of its lack of side effects. His suggestion seems to be that it is not safe to infer a diagnosis 210 D N Eaton, 4-61.2 211 Byth, 3-80.45-3-81.15 212 Whiteford, 4-103.20 -- 66 of 69 -- 67 of generalised anxiety disorder because of the particular drug prescribed, although prescribed repeatedly.213 [182] Professor Whiteford allowed the possibility that the records might indicate that a doctor had noted psychological stress but interpreted it as a mental disorder and prescribed the medication. His view was that the medical records did not show a course of treatment for merely psychological stress as opposed to a treatment for a recognised psychological disorder because ‘there was more than one script by more than one doctor and one doctor wrote “reactive depression”.’214 [183] Whether this difference of opinion matters depends on the issue in question. It might have been thought relevant to the question of foreseeability. As is plain from my reasons given, I found it unnecessary to turn to the psychiatric evidence in order to decide that issue. Nor does the difference of opinion seem to affect the question of causation. Dr Byth would say the plaintiff’s present condition is wholly attributable to the circumstances of employment of which she complains. Professor Whiteford would say that the plaintiff suffers from major depression which is likely to have been triggered by the workplace experience of the plaintiff while she also suffers from a pre-existing generalised anxiety disorder. [184] One view on the plaintiff’s medical history is that, if the plaintiff has not suffered a generalised anxiety disorder, she has nonetheless several times during her life, and for sometimes lengthy periods, been prescribed antidepressant medication. It is reasonable to infer, menopausal symptoms aside, that she has suffered depression before. It may be well be inferred that she was always likely to suffer it again in the future. In the end, I see no practical consequences for the purposes of this litigation of the doctors’ differing opinions. [185] The remaining question is whether the facts upon which the opinions were given are so substantially different from the findings I have made in favour of the plaintiff that the doctors’ opinions do not support a conclusion that the plaintiff’s experience in the workplace under the management of Harrison caused her present condition. There are some facts referred to by Dr Whiteford in his first report, dated 5 November 2010, which I have not found. For example, I do not accept the plaintiff was telephoned 15 213 Byth, 3-87.15-45 214 Whiteford, 4-108.5-30 -- 67 of 69 -- 68 to 20 times a day by the facility while she was on sick leave for her gall bladder operation because the assertion is not supported by either Harrison or Saltmer. I have nonetheless found the plaintiff was working under excess demands. In the letters sent to Dr Byth, there are certain facts I have not found, for example that Harrison said to the plaintiff, ‘Nobody likes you.’ I notice that in Exhibit 30 the plaintiff presents the view she still presented at trial with respect to giving a reference to a potential employer of an ex-employee. The particular episode as described in the letter does not include violent or intimidating language on the part of Harrison. That is, I think it reasonable to proceed on the basis that Dr Byth formed his opinion without particular reference to that incident. [186] With the benefit of the opinions of the doctors, filtered as I have discussed above, I am satisfied that it is safe to conclude the plaintiff’s consistently excessive workload and the conduct of Harrison as I have found them to be caused the plaintiff’s current psychiatric condition. In reaching this conclusion it take into account all of the evidence, particularly including the evidence of the course of the plaintiff’s psychological state and its deterioration during the period of Harrison’s management of the facility. Quantum [187] The defendant has accepted the plaintiff’s expenses (Special damages) set out in Exhibit 17 without proof. The parties have agreed on a notional net after tax income for the purposes of assessing past and future economic loss and rates of interest. There are three substantial differences in the proposed schedules of damages. In each case I accept the defendant’s submission. [188] The plaintiff seeks $60,000 for general damages. The defendant submits $50,000 taking into account the evidence of potential improvement in the plaintiff’s condition once the litigation is completed. I agree, given the evidence to that effect by the psychiatrists and the evidence of Mr Eaton of the plaintiff’s improvement when not at Hervey Bay. The defendant also refers to the award of $50,000 given to the plaintiff in Wolters v University of the Sunshine Coast. [189] The plaintiff’s suggested award for past economic loss includes no discount for vulnerabilities and contingencies. I agree the award should be discounted. -- 68 of 69 -- 69 [190] The plaintiff claim for loss of future earning capacity over 6 years, that is until the plaintiff is 67 years old. The defendant submits a more realistic future working term is 4 years. The defendant also submits the award for future loss should be discounted by 35% instead of 15% as sought by the plaintiff. [191] I agree with the defendant’s schedule of proposed damages which I attach to these reasons. Had the plaintiff succeeded the appropriate award of damages would be $435,583.98. [192] The parties propose, and I agree, to receive submissions as to costs in writing by 10 July 2015. -- 69 of 69 --