Dickson & Anor v Creevey [2001] QSC 340

SUPREME COURT OF QUEENSLAND File No S8800 of 1999 [2001] QSC 340 BETWEEN: PETER GREGORY DICKSON First Plaintiff AND: ANN JANETTE DICKSON Second Plaintiff AND: DAN CREEVEY Defendant MOYNIHAN J – REASONS FOR JUDGMENT DELIVERED ON: 18 September 2001 HEARING DATES: 16 July 2001 – 19 July 2001, 30 July 2001, 16 August 2001 ORDER: The plaintiffs’ action is dismissed. CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – WHERE ECONOMIC OR FINANCIAL LOSS – CARELESS ADVICE, STATEMENTS AND NON- DISCLOSURE – PARTICULAR PERSONS AND SITUATIONS – PROFESSIONAL ADVISERS – Where first plaintiff leading hand on work gang developed psychiatric disorder as a result of harassment by co-workers – solicitor failed to advise plaintiffs of opportunity to sue employer – whether solicitor would reasonably advise plaintiffs to sue prior to expiration of limitation period – whether plaintiff would have taken that advice – whether plaintiff would have been successful in that action. Local Government Act 1993 Workplace Health & Safety Act 1989 s 9 AMP v RTA & Anor [2001] NSWCA 186 CON Hawkins v Clayton (1988) 164 CLR 539 FAA Hill v Van Erp (1996 – 1997) 188 CLR 159 FAA Jaensch v Coffey (1983 – 1984) 155 CLR 549 FAA Mt Isa Mines Ltd v Pusey (1971) 125 CLR 383 DIST New South Wales v Seedsman [2000] NSWCA 119 DIST Petch v Customs Excise Commissioners [1993] ICR 789 DIST -- 1 of 10 -- 2 Scott & Ors v Echegaray (1991) Aust Torts R 81-120 FAA Walker v Northumberland County Council [1995] 1 All ER 737 CON Wodrow v Commonwealth of Australia (1993) 45 FCR 52 CON Vozza v Tooth & Co Ltd (1964) 112 CLR 316 FAA COUNSEL: J S Douglas QC with J A McDougall for the plaintiffs. R N Traves for the defendant SOLICITORS: Murphy Schmidt Solicitors for the plaintiffs. McInnes Wilson Lawyers for the defendant. Introduction [1] The plaintiffs sue their former solicitor alleging a lost opportunity to successfully sue the first plaintiff’s employer, the Noosa Council, for breach of the duty it owed him as his employer. The opportunity was lost because the limitations period expired without any action having been commenced. The case was conducted on the basis that it expired on 11 November 1996 and of a hypothetical trial by 5 December 1998. [2] The first plaintiff’s claim is founded on allegations of harassment by his co-workers as a consequence of which he developed a disabling psychiatric disorder. The second plaintiff’s claim is for consequent loss of consortium. The defendant’s retainer [3] There is no issue that the plaintiffs retained the defendant or that the terms of the retainer obliged him to take reasonable care to provide accurate and timely legal advice to protect the plaintiffs’ interest. The defendant however pleads that the retainer was limited to an appeal to an industrial magistrate in respect of a failed attempt to reopen the first plaintiff’s workers compensation claim. [4] The retainer was not as limited as the defendant contends. The plaintiffs attended on the defendant together. It may be accepted that their prime concern was an endeavor to reopen the first plaintiff’s workers compensation claim. The second plaintiff however sought advice about other possible forms of compensation; that she did is supported by two diary notes made by the defendant’s employees. The diary notes refer to telephone conversations with the second plaintiff on 12 January 1996, although one refers, mistakenly, to the month of October and the year 1995. [5] The first note, after dealing with workers compensation issues, refers to investigation of the possibility of a common law claim and records that the defendant was to let the plaintiffs know the outcome of the investigation. The second records the second plaintiff as enquiring what was necessary to establish negligence. She was advised that it was a legal question, consideration had to be given to what the courts regarded as negligent and that the defendant or the staff member would get back to the plaintiffs. This was never done. -- 2 of 10 -- 3 [6] Those being the facts the defendant is in breach of the obligation he owed to the plaintiffs; Hill v Van Erp (1996-1997) 188 CLR 159, Scott & Ors v Echegaray (1991) Aust Torts R 81-120 and Hawkins v Clayton (1988) 164 CLR 539. [7] It is now necessary to consider whether the evidence establishes that the plaintiffs would have successfully sued the Council. That in turn requires something to be said about the plaintiffs and their backgrounds. Background [8] The first plaintiff was born on 1 May 1958 and the second plaintiff on 5 June 1959. They married on 30 January 1986 and have two boys who were 12 and 13 at the date of trial. The boys are educated at home by their mother who was a school teacher until her marriage to the first plaintiff. [9] The first plaintiff did not do well at school, he was later diagnosed as dyslexic, and left in year 10. He qualified as a plasterer and followed that and other occupations involving physical activity. At the time he met the second plaintiff he was working for the Queensland Water Resources Commission. He was in charge of a drilling crew and with two other employees travelled the State conducting exploratory drilling. The first plaintiff gave up this job when he married because of the travelling involved and in June 1989 he commenced work as a labourer with the Noosa Shire Council. He was subsequently appointed a leading hand and remained employed by the Council until 11 November 1993 when his employment terminated in circumstances that it will be necessary to consider. [10] The second plaintiff was brought up as a Seventh Day Adventist and the first plaintiff became a committed Adventist from the time of the marriage. The plaintiffs in any event have strongly held moral views which are reflected in the way they live. They perceive that many aspects of society conflict with their beliefs. The plaintiffs struck me as decent, honest people, strongly adherent to their moral views and the tenants of the Seventh Day Adventist faith. They ask little other than to be allowed to live their lives in that framework. As a consequence they would from time to time stand out as different in the eyes of others who did not share their beliefs or commitment. [11] The first plaintiff is fairly described as having a vulnerable personality with avoidant, obsessional and dependent traits reflected in low self esteem. He has difficulty in asserting himself and in dealing with hostile or angry feelings and is prone to misinterpret the actions of others. The first plaintiff is prone to become stressed by and have difficulty in dealing with situations which others, without the characteristics I have described, would cope with. If he becomes stressed the first plaintiff withdraws, both physically and mentally into himself rather than seek advice or support or deal directly with the source of the stress. These traits or characteristics of the first plaintiff’s personality were well established when he commenced work with the Noosa Shire Council. They had the consequence that the first plaintiff was not a person of normal fortitude. [12] The first plaintiff qualified in his trade and was in regular employment in that and other fields up to 11 November 1993. While he worked for the Water Supply Commission he was responsible for a three person drilling crew. He was identified -- 3 of 10 -- 4 as suitable to be appointed a leading hand soon after his employment by the Noosa Shire Council. Generally speaking he coped in the various occupations but struggled to do so when other more robust personalities would not have done so. He was supported by a Council officer in the clerical aspects of the leading hand function but generally he kept the struggle he had with those aspects to himself. At the Noosa Shire Council [13] The work gangs of the Noosa Shire Council were a fairly robust working environment where bad language, profanity, potentially offensive nicknames and explicit sexual references were not uncommon. Mens magazines and pinups were displayed in lunch and other areas. There is however no basis for concluding it was worse than any comparable work place. The characteristics of the first plaintiff which I have endeavored to describe led to his standing out somewhat and attracted attention from some of his co-workers who exploited his vulnerabilities. It is pertinent to note here that the first plaintiff perceived resentment by some of his co- workers regarding his appointment to leading hand. [14] I am satisfied that during his employment with the Noosa Shire Council the first plaintiff was subjected to what can compenduously be described as harassment and bullying by a number of his co-workers. Their conduct, in no particular order, involved the use of the nickname “Goofy” in a derogatory way, confronting him about his beliefs with sexual innuendoes or questions about sex, leaving magazines around and displaying pictures which it was known he would find offensive. On a number of occasions the first plaintiff’s manifest response to the offensive conduct led the perpetrators to continue or repeat it. The first plaintiff also worried about and was stressed by what he regarded as the lack of responsibility of co-workers towards their duties and Council property. [15] Offensive conduct of the kind I have described took place across the time of the first plaintiff’s employment with the Council but fluctuated in constancy and intensity. This was probably because of the activity of particular individuals the first plaintiff came into contact with; it is difficult to conclude with any certainty the role if any that interventions by supervisory staff played in this pattern. [16] The first plaintiff’s response to the conduct I have mentioned was to withdraw. This response served to draw attention to his vulnerability and encouraged some of the perpetrators to persist in the offensive conduct. He did not attempt to deal himself with the perpetrators in circumstances where he had the authority of a leading hand or seek assistance from his superiors. Indeed after his wife took up with the Council on his behalf following the events of 11 November 1993, the first plaintiff was upset and adamant that he could not go back to face his co-workers, which did not do. [17] As I have said I accept the first plaintiff as an essentially honest witness but not necessarily completely reliable. He may, for example, in retrospect give some events more significance than they had at the time. I have kept this in mind in evaluating his evidence. On the other hand it is likely that a number of the defendants of the first plaintiff’s co-workers who gave evidence in the defence case downplayed events to minimise their own involvement. That having been said I -- 4 of 10 -- 5 accept that Olander, Robert Buchanan, Burell, Hodgeson and Huth who were not involved in official misconduct did not notice anything untoward. [18] After the first plaintiff had been working at the Noosa Shire Council for a couple of years his wife began to notice that on occasion he manifested signs of stress when he came home from work. He showed signs of frustration or anger for example slamming doors and was withdrawn. In fact on occasions he would leave the house and sit in the shed or in the scrub for hours and eventually come inside to communicate with her about his problems with his co-workers. The plaintiffs looked to sell their property and move away but had not implemented this proposal at 11 November 1993. The proposal probably was in part a consequence of the first plaintiff’s increasing stress caused by the bullying and harassment I have referred to. [19] From time to time the first plaintiff’s treatment by his co-workers attracted the attention and intervention of a supervisor. The plaintiffs sought to tender an affidavit by Mr Ian Buchanan, a retired senior foreman employed by the Noosa Council without calling him. The defendant objected. It is clear that Mr Buchanan, who was 73 years old and in poor health, did not wish to give evidence. The plaintiffs were unable to effect service of a subpoena and he declined an opportunity to give evidence by telephone. The evidence it was sought to lead from him was to the effect that he observed that on occasions a co-worker had a “bit of a go” at the first plaintiff who appeared to take the incident seriously. Mr Buchanan had instructed the men to desist. It isn’t clear how often it happened, whether he did anything else about the conduct or how seriously he regarded it. He gave this information to the Council in the context of a worker’s compensation claim by the first plaintiff after 11 November 1993. Mr Buchanan’s evidence about offensive conduct is reflected in other evidence. This does not add much, if anything, to other evidence and its weight suffers because of lack of detail and because it is untested. Other supervisors who gave evidence did not have occasion to intervene as Mr Buchanan did, but there is no occasion to consider, should they have felt the situation warranted it, that they would not have. [20] Mr Buchanan’s untested evidence, in my view, contributes nothing to issues about what the Council may have known or what system was or ought to have been in place bearing on the harassment and bullying of the first plaintiff. Subject to the considerations I have canvassed I am prepared to admit it; its lack of detail and weight have had the consequence that it has not played a significant role in my decision. 11 November 1993 and its aftermath [21] I am satisfied that the first plaintiff was devastated as a consequence of a confrontation on 11 November 1993 with the witness Riley, who the first plaintiff described as thrusting a brickies trowel in the direction of the his groin and using offensive language. [22] The first plaintiff came home from work appearing to his wife to have aged dramatically, he was very upset and eventually gave his wife an account of what occurred. He insisted on going to work the next day. His wife contacted WorkCover, a Minister (Member of Parliament) and the Council. When he learned -- 5 of 10 -- 6 that night that she had made these approaches the first plaintiff was extremely upset that she had involved others and that his co-workers would find out and did not return to work. [23] The first plaintiff saw Dr Dearnaley a general practitioner on the following Monday. Doctor Dearnaley assessed him as suffering from depression as a consequence of harassment at work. He noted that he seemed to have lost all self confidence and self esteem. Doctor Dearnaley referred him to Dr Bourke, a psychiatrist, who saw him on 4 June 1996 and on a number of subsequent occasions. Doctor Bourke diagnosed a prolonged adjustment disorder with resolving depression, low self confidence, anger and dyslexia. As a consequence of a consultation of 25 May 1997, Dr Bourke recognised “a confirmation of what [the second plaintiff]” had already told her; the first plaintiff was “stressed beyond his capacity to deal with it”. The first plaintiff was referred to Dr Douglas Scott, a consultant psychiatrist, who assessed him on 22 August 1995 and saw him again subsequently on a number of occasions. Doctor Scott diagnosed the first plaintiff as suffering from a stress related depressive illness which was “more than an adjustment disorder with anxiety and depressed mood”. [24] Doctor Scott recommended antidepressants but the first plaintiff declined to persist with them. The plaintiffs did not support the use of drugs and preferred a natural medicine approach. In a report of 19 September after a review of 15 September 1995, Dr Scott was of the view that the first plaintiff’s grievance with the Worker’s Compensation Board had become “a focus in his life”. An assessment by a clinical psychologist for the Worker’s Compensation Board, after interviews on 9 and 16 December 1993, found that the first plaintiff was distressed and anxious and extremely fearful at the prospect of being subjected to similar stresses in the future to those he underwent. He was diagnosed as clinically depressed and suffering from debilitating anxiety and moderately dyslexic. [25] I accept the plaintiffs’ evidence of the first plaintiff’s despair and depression. He contemplated and attempted suicide on a number of occasions. One can only admire the second plaintiff for the support she provided him. [26] In my view the incident of 11 November 1993 was the straw which broke the back of a vulnerable personality. As a consequence the first plaintiff now suffers from chronic generalised anxiety and depression, he exhibits avoidant, obsessional and dependent traits. There are some differences between the experts as to the characterisation of the plaintiff’s condition but I am satisfied he has a long term recognised psychiatric disorder; cf Mt Isa Mines Ltd v Pusey (1971) 125 CLR 383 per Windeyer J at 408. [27] The harassment and bullying that the plaintiff suffered at work was a significant, probably the most significant, contributor to the first plaintiff’s condition. I think it is likely however that other stresses were operating on his personality. Specific stresses provide a focus for his general anxiety and he is stressed by things which would not stress others who do not share his personality traits. He was struggling with the clerical aspects of his job, he was concerned about his health (he had a lung operation in 1991) and a leaky dam. [28] The first plaintiff’s prognosis for the future is uncertain. He may benefit from drug -- 6 of 10 -- 7 and other therapies if he is prepared to utilise them. He does some work assisting his wife in the working of a gerbera farm which they (largely her) have been developing. He can carry out simple tasks in circumstances where he has little else competing for his attention. He may improve but his prospects on the open labour market would appear to be dubious. Would the plaintiffs have successfully sued the Noosa Council? [29] In practical terms whether or not the plaintiffs would have successfully sued the Noosa Council depended on their receiving and accepting legal advice which they regarded as offering them sufficient prospects of success to justify taking action. It would have been a joint decision, noting that the first plaintiff was reliant on the second in matters of this kind. [30] The question which now arises is what would a competent solicitor have reasonably advised the plaintiffs of as to their prospects prior to the expiration of the limitation period on 11 November 1996. There was no evidence called bearing directly on that issue of what a reasonably competent solicitor would have advised. The case was conducted on the basis that that was for me to determine on my assessment of the evidence as it stands; cf Scott & Ors v Echegaray (supra). [31] Broadly speaking in circumstances such as arise in this case the Council was under a duty to exercise reasonable care to avoid unnecessary foreseeable risk of injury in the form of a recognisable psychiatric illness; New South Wales v Seedsman [2000] NSWCA 119, Jaensch v Coffey (1983-1984) 155 CLR 549. This contemplates a plaintiff establishing that a defendant unreasonably failed to take measures which would have protected the plaintiff without unduly impeding the accomplishment of the work; Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319. The Council was also obliged by s 9 of the Workplace Health and Safety Act 1989 to ensure the health and safety at work of all its employees. Although these are separate causes of action the distinction is of little consequence for present purposes. [32] In my view the evidence does not sustain a conclusion that the Council, through its officers, was or ought to have been aware that the first plaintiff was being subjected to conduct which carried a real risk of precipitating a psychiatric condition; cf Petch v Customs Excise Commissioners [1993] ICR 789 per Dillon LJ at 796. Nor am I satisfied that the Council ought to have appreciated that the first plaintiff was at a greater risk of stress induced mental illness than a leading hand would normally be; Walker v Northumberland County Council [1995] 1 All ER at 737 at 775, Wodrow v Commonwealth of Australia (1993) 45 FCR 52. In this context it should be noted that the work of a leading hand was not inherently stressful in the sense, for example, of the work of the police officer dealing with child sex abuse cases in New South Wales v Seedsman (supra). [33] The evidence indicates that the late 80’s and early 90’s were a time of change in the attitude and obligations of employers with respect to sexual harassment, discrimination, workplace bullying and harassment. Paul Francis Coffey was an Executive Assistant employed by the Noosa Council in 1993 and later became Manager Human Resources. He had worked in the human resource management field since 1978. He gave evidence that workplace bullying and harassment were -- 7 of 10 -- 8 not matters of great concern prior to the early 90’s, but in the second half of the 90’s became quite topical. [34] The Noosa Council did not adopt anti-discrimination and sexual harassment policies until August 1996. This was as a consequence of regulations brought down in 1995 under the Local Government Act 1993. I do not regard the harassment and bullying of the first plaintiff as falling into either of these categories. In 2000, in the context of enterprise agreement negotiations the Council adopted bullying, harassment and victimisation policies. There is no evidence as to the position with respect to other Councils and the adoption of such policies of the kind referred to and hence no basis for concluding that the Noosa Council was other than typical. The making of regulation and the use of the enterprise bargaining context tend to suggest that it may have been fairly typical. [35] The plaintiffs called Dr Ian Lowe, a doctor specialising in occupational medicine. Doctor Lowe’s evidence was fairly long on assertion and rather short on detail. He referred to a series of articles published by Mendelson in 1990 in The Journal of Occupational Health and Safety Australia and New Zealand which I think he construed too generously. He did not give evidence of comparable organisations which had in place at the relevant time policies and procedures of a kind which it could be said the Noosa Council ought to have had in place. The evidence in my view does not sustain the conclusion that the Noosa Council ought to have had in place policies against bullying and harassment of the kind to which the first plaintiff was subjected in November 1993 or prior to that date. [36] The award at the relevant time provided for complaints by employees to an immediate supervisor and it seems that it was appreciated by Council employees that that course was open. Had the first plaintiff raised the unacceptable conduct with a supervisor, there is no occasion to doubt his concerns would not have been taken seriously and addressed. Had he exerted his authority as a leading hand to deal with it there is no occasion to doubt that he would have not been appropriately supported by his supervisor. As I have already said however, the first plaintiff was adverse to taking either of those steps particularly if it would involve his co- workers becoming aware that he was upset and had complained. [37] It follows from what I have been saying that in my view there were formidable obstacles in the path of the plaintiffs establishing that the Noosa Council was in breach of the duty it owed to the first plaintiff. It should be noted that although important credibility issues have by and large been resolved in the plaintiff’s favour, that a competent solicitor would have taken into account that outcome is not inevitable. [38] As I have said, whether or not the plaintiffs would have sued depended on their receiving and accepting legal advice which they regarded as offering them sufficient prospects of success to justify taking that course. The plaintiffs in their evidence, perfectly understandably, had difficulty in addressing the hypothetical question of how they would have acted in deciding whether or not to sue prior to November 1993. Their evidence was in my view fairly equivocal. [39] The first plaintiff did not know if he would have sued if advised he had a “weak but arguable case”. “You would have to know how good a chance you had”. He would -- 8 of 10 -- 9 probably not have sued if advised he “would probably lose . . but might win”. The situation that he had a reasonable case but couldn’t be guaranteed a win, would have to pay his own solicitors only if he won and the other side $30,000-$40,000 if he lost was put. He answered “I may have taken it up. It would have to be at the time to understand that, but I may have taken it up”. The second plaintiff said it would depend on “the confidence of the solicitor . . .if we had reasonable prospects I believe we would have gone ahead”. “Reasonable was at least better than 75-80 percent chance”. Less than that she was at best equivocal. [40] I am unable to satisfy myself that they would have received advice leading them to decide to sue. It is conventional but imprecise and artificial to characterise such advice in terms of the percentage prospects of success. I doubt that a competent solicitor could reasonably had advised the plaintiffs that these were better than being of the order of 40-50 percent and that the plaintiffs having been so advised would have sued. [41] As I understand it that is the end of the matter but it is appropriate that I deal with some other aspects of the case lest I be wrong in the conclusion that I have arrived at. [42] Assuming no offensive conduct by co-workers of the kind that precipitated the first plaintiff’s leaving the Noosa Shire Council he would have in all probability have continued in that or other comparable employment. [43] The calculation of the plaintiff’s damages, as distinct from his entitlement are largely uncontroversial and are the subject of schedules handed up with the written submissions on behalf of the plaintiff. These submit for a 15 percent discount to allow for contingencies. That in my view does not sufficiently reflect that, what I have described as the plaintiff’s fragile personality, put him at risk from the ordinary stresses of life. These may have led to his development of a debilitating psychological condition in any event which would have reduced his earning capacity. On the view I take of the evidence this was quite a significant risk and a 15 percent discount on that consideration alone may be a little conservative. The other major contingency requiring a discount is the necessity to allow for the fact that the plaintiffs may not have succeeded in their action had they brought it. It will be apparent from what I have already said that in my view this would operate as a major discounting factor. [44] The plaintiff’s earning capacity is substantially and terminally impaired. I think it will in the future be exercised in terms of providing some assistance in the gerbra farm. I accept the second plaintiff’s evidence in respect of this enterprise and its future. [45] The consequence of the first plaintiff’s condition have had a major adverse impact on the quality of the relationship between the first and second plaintiff as husband and wife, which is in my view somewhat understated by the second plaintiff’s evidence at p 162 of the transcript. [46] The defendant contends that the first plaintiff has failed to mitigate his damages by not taking anti-depressant medication. I accept the evidence of the plaintiffs’ that he ceased taking the medication because they perceive that there was a relationship -- 9 of 10 -- 10 between taking the medication and suicidal behaviour, and that this view was not unreasonable in the circumstances. [47] Finally I am not prepared to conclude that the defendant has made out a case of contributory negligence. [48] After these reasons were prepared but before their delivery counsel drew my attention to and made written submissions concerning the decision of the New South Wales Court of Appeal in AMP v RTA & Anor [2001] NSWCA 186 (decided on 2 August 2001). Having reviewed the submissions and the case I do not consider it necessary to depart from the conclusions reached in this judgment or the reasons supporting them. [49] Accordingly, the plaintiffs’action is dismissed. -- 10 of 10 --