Arnold v Midwest Radio Ltd [1998] QSC 60

3/f7CJ /! -!".,,_ ,'Is..) IN THE SUPREME COURT /' No. 80 of 1994 OF QUEENSLAND TOWNSVILLE BETWEEN: MARILYN ABIGAIL ARNOLD Plaintiff AND: MIDWEST RADIO LIMITED Defendant REASONS FOR mDGMENT - CULLINANE 1. DELIVERED THE SEVENTH DAY OF APRIL 1998. In this action, the plaintiff claims damages for personal injuries which she alleges she sustained as a result of the defendant's breach of its duty to her as an employer. The claim is primarily concerned with the defendant's vicarious responsibility for the alleged action of her superior, one Williams which are said to constitute breaches of the defendant's duties towards her. The defendant is also alleged to be in breach of its non-delegable duty to her and a claim is made for breach of statutory duty, The trial of the action took some six days, It is the plaintiff s claim that she suffers serious psychiatric consequences which are permanent and which render her unemployable as a result of events which occurred over a period of a little more than three months whilst she was an employee at the defendant's newspaper, The Townsville Independent News. -- 1 of 35 -- 2 The plaintiff had first been employed at the newspaper in early 1991 as a features coordinator. Her responsibilities are set out in Exhibit 2. She was dismissed from this position by the then manager, Malcolm Johnston. Shortly afterwards Johnston was dismissed and Williams was appointed. It appears that Williams reconsidered the question of the plaintiff's dismissal and concluded that she should be reinstated and this occurred in late August 1991. Williams had commenced as manager of the newspaper a little prior to this. She describes her position as sales manager and features coordinator. Williams describes her position as advertising sales representative mainly responsible for feature advertising: Her tasks included helping other sales representatives achieve their budgets and responsibility for feature advertising. When she recommenced, relations between her and Williams were good. Before turning to the events the subject of these proceedings, it is of some significance to refer to the plaintiff's history. The plaintiff was born on 3 September 1954. She had an unfortunate childhood which involved sexual abuse by her father as a result of which she left home when she was 14. The family had moved around from place to place prior to that. They were living in Melbourne when she left home. She married when she was 15 and a half and had her first child shortly -- 2 of 35 -- 3 before she turned 16 and her second child when she was 18. The marriage failed because of her husband's associations with other women. She went to Perth leaving her children with her husband's family. Initially she did some work pursuant to what she describes as a modelling contract and thereafter was the coordinator of entertainment for a chain of hotels. Through her involvement with the entertainment industry she became a striptease artist. Following that, she was a prostitute in Kalgoorlie for approximately six years. She says that she took this step to obtain some degree of financial security for her children and so as to enable them to have a good edu~ation. Later she went to Ballarat where her mother was then living and obtained employment at a radio station and as the manager of a nightclub. She also at this time joined the Army Reserve. She came to Townsville with her daughter in the mid-80's transferring her membership of the Army Reserve to Townsville where as she says, she performed a good deal of voluntary work for the Army. Colonel Gould who gave evidence, transferred her to headquarters where she was placed in charge of publication of The Northern Warrior. This work had been done prior to this by an officer, whereas the plaintiff was only a private. The nature of this work is described by Colonel Gould and another retired Army officer, Brigadier Mansford, both of whom spoke highly of the plaintiff's capacities and performance. She became a full time member of the Army for some time during which she performed what she describes as the various media related tasks concerning the Army Reserve for North Queensland. She says that some problems developed as a result of the position she found herself in as a -- 3 of 35 -- 4 private performing the work that I have described. The difficulty was, she said, that by carrying out work which had previously been performed by an officer she, as a private, was subject to direction by persons of quite low rank. She explains this as being the basis of the letter which is Exhibit 11. An application was made for a late entry position by Colonel Gould on her behalf in late 1997 which, had it been successful, would have resulted in her being appointed as an officer if! understand matters correctly. This was not successful. The plaintiff left the Army and worked for The North Queensland Herald for some months before it closed down. She describes her position there as features coordinator. She worked then for a short period for Wormald Security as a security officer before commencing with the defendant at The Independent News. The plaintiff ceased work following an incident on 6 December 1991 which will be referred to later. On that day she consulted a doctor and she received psychiatric treatment at the beginning of 1992. She returned to the defendant's office on 20 December 1991 in circumstances which will also be referred to later. She has not worked since 6 December 1991. She was not formally dismissed and she did not return to the defendant. It is common ground that she suffers from a psychiatric condition although there is a dispute between psychiatrists as to what the condition is and what its cause is. On her case the psychiatric condition prevents her from working and is permanent. -- 4 of 35 -- 5 At the time that Williams was engaged by the defendant as the manager, the newspaper was making a loss. He was given firm instructions to take whatever steps were necessary to make the business a profitable one, something which, in the result, he was unsuccessful in achieving prior to his dismissal in mid 1992. It might be anticipated that the need to tum the fortunes of the newspaper around would justify a robust approach to management and that there would be some stress and insecurity caused to members ofthe staff by the need to take such steps. In the course of the trial, I heard evidence from a number of members of the staff during the relevant time including both the plaintiff and Williams. Some of the witnesses had at an earlier time provided statements which were in conflict with the evidence they gave before me. The plaintiff, when giving evidence before me appeared to be a somewhat disturbed person. She was inclined to be quite argumentative in cross-examination. I had evidence in the form ofa video and a photograph which I was told gave a fair presentation of her appearance during the relevant time. The evidence suggests she has lost interest in her appearance and this is borne out by a comparison of the video and the photograph with the plaintiff as she presented in Court. Any assessment of her evidence has to take into account her present psychiatric problems. Some degree of reserve is justified in the evaluation of her reliability as a witness. The impression that I have from the evidence is that the plaintiff placed considerable store in having achieved the position that she had with the defendant and before that with the Army, -- 5 of 35 -- 6 something which is understandable in view of some aspects of her background which I have referred to earlier. The evidence also suggests that she gave the appearance whilst at the newspaper of a person of considerable worldliness and presented with something of a hard edge. Whilst she may have conveyed such an appearance, I accept Dr Green's opinion that she had substantial unmet dependency needs from her childhood and adolescence and that she met these by her involvement in the work related activities previously discussed. She was, I am satisfied, particularly vulnerable to anything which threatened her position or resulted in her loss of it. Prior to the period I am concerned with and during it, the plaintiff suffered from migraine " headaches for which she received treatment. Some of the evidence involved an examination of her medical records and it was suggested that she had developed some dependency upon Pethidine. However, the evidence does not justify such a finding and I am satisfied from the evidence of Dr Green that the plaintiff did not have such a dependency. Following the cessation of her employment with the defendant the plaintiff did develop a drug dependency including a dependency on Pethidine. She has been hospitalised for a period at the Mental Health Unit at the Bundaberg General Hospital and she has had ongoing treatment. The plaintiff provided particulars of a number of the allegations which she made about Williams in the statement of claim. It was submitted that in a number of respects the evidence of the plaintiff went beyond the particulars and that this evidence should be excluded. These -- 6 of 35 -- 7 are set out in a document handed to the Court in the course of the defendant's final address. I had reserved consideration of this question leaving the matter until the conclusion of the evidence. In the result the matters raised were canvassed in evidence called on both sides. I think in view ofthe course which the evidence took and in view of the fact that the persons directly involved were called and gave their account of these matters that the appropriate course to take is to grant the application by the plaintiff to amend the particulars to include these allegations. I should add that in respect of some of them the relevant events are not in the overall picture of any real significance and that none of them are decisive. Although I make findings in relation to a number of these the outcome of the plaintiff's claim would have been the same without these findings. The evidence suggests that there were significant animosities amongst members of the staff .of the newspaper with some of these animosities being directed towards Williams and some towards the plaintiff and other members of the staff. Paragraph 7(A) ofthe statement of claim alleges: "A. The Defeiulant breaches its obligations by its servant Williams in: (a) constant and repetitious use offoullanguage directed at the Plaintiff and other employees; (b) constant and repetitious abusive language directed at the Plaintiff and other employees; (c) constant and repetitious abuse of the Plaintiff and other employees; -- 7 of 35 -- 8 (d) making threats to dismiss the Plaintifffrom her employment; (e) knowingly falsely representing to other staff members that the Plaintiff intended to take proceedings for sexual harassment against another staff member; (f) boasting, that he had a reputation for reducing women to tears and that he was proud of it; (g) obstructing the Plaintiff in the peiformance of her duty by: (/) cutting off her access to STD telephone calls thereby making it extremely difficult for the Plaintiff to sell advertising space in a newspaper conducted by the Defendant; (ii) refusing to pay the Plaintiffs car allowance; (iii) refuSing to assist, advise or make decisions when requested to by the Plaintiff; (iv) baselessly criticising, to customers of advertising space in the Defendant's newspaper, the advice given by the Plaintiff to those customers; (v) arrangingfor the Defendant not to pay the Plaintiff commission on advertising space sold by her; (h) refusing to allow the Plaintiff leave of absence to visit the bedside of the dying father of her de facto husband; (I) manifesting an insensitive attitude to the Plaintiff's distress when shortly after the event referred to in particular (v) the Plaintiff's de facto's father died; (j) generally creating an air of tension and frustration at the Defendan~ 's -- 8 of 35 -- 9 workplace; (k) falsely accusing the Plaintiff of criminal activity; (I) enquiring of the Plaintiff whether she could procure someone to murder a person; (m) conducting regular weekly staff meetings at which the said Williams would behave in the fashion referred to in items (a), (b) and (c) above. " The plaintiff's case was that Williams at meetings called on a weekly basis regularly verbally attacked members of the staff including herself in language which might be described as abusive, derogatory and belittling. In addition, the plaintiff referred to a number of specific incidents involving herself and involving others in her presence. One of these occurred on 6 December which was the day that she ceased to work at the newspaper. I heard evidence from a number of witnesses who had been members of the staff of the newspaper during the whole or part of the relevant time or at least in one case, following it. I tum now to the various conduct alleged against Williams. So far as regular weekly meetings are concerned, the evidence from the plaintiff about these was relatively brief and in general terms. The same might be said of some of the other witnesses such as Hartig and Ezzard. However their evidence satisfies me that Williams -- 9 of 35 -- 10 would use abusive language towards members of the staff including, from time to time, the plaintiff. Each of the witnesses gave illustrations of the language used which I understood was intended to be generally r~presentative of what occurred at such meetings. The plaintiff said that Williams would use terms such as "Fucking children, scum bags, toe rags, incompetent." Hartig gave evidence that Williams "called us a bunch of fucking animals and ifwe wanted to act like fucking animals he'd treat us like fucking animals". She said she recalled this being said on a particular occasion. Her evidence went on: "Was that typical ojthe sort oj language he would use at such meetings?- He would swear at meetings. But that was one that just sort oj - it really stuck in my mind because we didn't deserve that. We weren't abUSing the phone system. He would swear, but then again, there were others of us that swore, too. Did he single out anybody in particular for this sort of comment?- Well, you know, he singled out Mark Timmerman at one stage. I can't recall what that was over. Deanne Weston, he had a go at her a couple of times. Abi, yeah. How often would he have a go at Abi?- Oh, I'd say whenever he could But, then, Abi used to stick up jar herself and he didn't like that. What sort of things would he have a go at Abi over?- Oh, just advertising sort of hadn't come through andjust - I can only sort of recall the advertising sides oj it. -- 10 of 35 -- 11 And when you say he had a go at her, was he critical of her performance?- Well, to sort of say he was critical, I'd have to remember it word by word He was very sarcastic of her performance. See, I can't remember word by word, instant by instant, but I can remember just atmosphere, that sort of thing. All right. What do you mean by 'atmosphere'? What do you remember about the atmosphere?- He used to be sarcastic to Abi. If she tried to speak up or say something, he'd shut her up, put her down, sort of thing, with some sarcastic word Was that a common occurrence?- Well, it happened a bit. It happened a bit. " Later in her evidence:- '~nd you mentioned, I think, one instance where you recall him, you say, using foul language to somebody?-- Yes, that was about the telephones to all of us. To all ofyou?-- Yes. I am not sure --?-- We lost our STD after that. Right. Then you mentioned how he would belittle members of the staff and occasionally praise members of them, I think that's what you said?-- Yes. And I think you suggested Ms. Arnold, who he seemed to particularly tend to belittle; is that right?- Yes. -- 11 of 35 -- /" 12 What about the language that you spoke of earlier, was that commonly used in those meetings?-- No, not really. He seemed - not that I can recall. Just at that time he seemed particularly savage over that. What time are we talking about?- When he went on about the telephones. So, it wasn't the sort of language that was frequently used?- Well, occasionally he might have used the F word, sort of thing, but there is a difference when you use that. You can use it in play or joking and that sort of thing and no offence is taken, but when it's used with a bit of savagery, well, offence is taken. Just follOWing on from His Honour's question, do 1 understand your evidence to be it wasn't so much from your perspective - it wasn't so much the words that Mr. Williams used that was offensive, but the manner in which he used them? - Yes. The manner of voice?- Yes, it was an attack upon us. " In his evidence Ezzard gave the following answers to questions asked in examination-in-chief:- "Are you able to say anything about - was there anything peculiar or unusual about the sort of language Mr Williams would use in the office, particularly in relation to staff!- That was crude and vulgar. It was exceSSively crude and vulgar to what a normal office would have. -- 12 of 35 -- 13 You appreciate - HISHONOUR: Do you mean by that, I am not sure of the way it was expressed or conveyed what he means, do you mean it was beyond what you might expect?- Yes, beyond what you may expect in a standard office. MR. DUTNEY: I was going to say that some people use swear words as adjectives on a regular basis and it passes without comment. Was it that sort of swearing or --- ? - -- Goes beyond that. Can you describe in what way it goes beyond that?- In a fashion that he would use it to put - humiliate and put people down. And what wort of words were used?- "Fuck", "cunt", "bitch", "bastard", "prick", . "pool", "homo", "gay", streams of - if there is a swear word, it's probably used and I've probably heard it from his mouth. Were there some people on the staff who seemed to wear the brunt of this more than others?"- Yes, Abi Arnold and Bonnie Hartig. In what particular way would he use abusive or uncouth language in relation to Abi Arnold?- On numerous occasions he would tell her to got off her fucking butt and go and sell this week's paper. " -- 13 of 35 -- 14 I think it fair to say that Ezzard, in giving this evidence, was not confining his evidence specifically to the meetings. Nigel Lloyd-Jones who was employed as advertising manager shortly after the plaintiff left, refers to an occasion when Williams addressed the advertising staff generally saying "What the fuck is going on here, this is not a fucking circus, it is a newspaper and we've all got fucking jobs to do." According to Lloyd-Jones Williams was red faced at the time that he made these statements. He (Lloyd-Jones) asked Williams to go to Williams' office with him where he told him that he would not continue working there if that behaviour was repeated. I think that this evidence of Williams' behaviour shortly after the period the plaintiff was employed is admissible. There was evidence in the form of statements from two witnesses whose statements were admitted under section 82 of the Evidence Act. These are Exhibits 28 and 29. Whilst care as to be taken in ascribing weight to such statement in the absence of any cross-examination and while in some respects the statements are in general terms and parts of the statement are objectionable, these also it seems to me, provide some support for the plaintiff's allegations. A witness called for the defence, one Timmerman, gave evidence of aggressive and unfair conduct by Williams towards him at one of the meetings and in cross-examination agreed that other members of the staff in his presence had been attacked in abusive and foul language at those meetings. -- 14 of 35 -- 15 Whilst the witness Western called on behalf of the defendant generally sought to convey a positive impression of Williams' conduct, she agreed that he would at meetings, refer to people as "Fucking idiots." Williams denied that he had spoken in such a way to members of the staff at meetings. At p.373 he was asked and said:- "Well, it is said that you used these meetings to belittle people about their performance, criticised them unduly. Do you recall any circumstance of that occurring?- I did not. I did not criticise people in the public area. If I had something that was critical of a stciff member, I would do that privately. I always used those meetings to go through editions of the paper, point out the good bits and bad bits and how we can improve it. Do you ever use foul language during some of those meetings?-- I have - I have used the F word, yes. For instance, would you ever call them ''fucking children" or ''fucking idiot"?- No, I would not. Morons?--No, I would not. " I am satisfied that Williams at such meetings regularly used language of which the examples referred to earlier are in ageneral way illustrative and that this conduct was directed from time to time to the plaintiff. The evidence suggests that she may have been the target of such -- 15 of 35 -- 16 conduct more frequently than others. I do not lose sight of the fact that the use of bad language was not uncommon in exchanges between members of the· staff including the plaintiff In addition the evidence suggests that the plaintiff was inclined to react and return some of the abuse on occasions. However the impression I have been left with is that Williams engaged in this type of conduct towards the plaintiff and others on a fairly frequent basis and that it could properly be described as aggressive, bullying, abusive, belittling and sarcastic, and that it was often expressed in or accompanied by foul language. The plaintiff says that on one occasion she was asked by Williams to find whatever information she could about a man called Doug Nicol who lived at Magnetic Island. It seems from other evidence that Nicol was a former employee of a newspaper at Warmambool of which Williams had at the same time been the manager. There is other evidence which would identifY the period of Williams' employment as the manager of this newspaper as being in the mid to late 80's. Nicol had instituted proceedings against Williams alleging assault which proceedings had apparently been compromised. The plaintiff says that she was led to believe by Williams that the information was required on behalf of another newspaper. Through contacts which she had she was able to provide a good deal of personal detail about this man. According to the plaintiff on doing so Williams asked her if she could procure someone to kill Nicol. The plaintiff says that she was shocked at this and ultimately told a friend who was a police officer about it. Williams acknowledges that he asked the plaintiff to find out whether Nicol was at Magnetic -- 16 of 35 -- 17 Island, something which he says he had received some information about from former colleagues in Melbourne. He says that he asked the plaintiff if she could establish whether he was living there and what he was doing. He said that he knew that the plaintiff had previously worked for a security firm and probably had some contacts which might enable her to obtain this information. He says that his purpose in asking her this was to establish whether what he had heard was correct. His concern was that he might accidentally encounter this person. He denied that he had asked the plaintiff to find someone to kill Nicol. I found the plaintiff's account of this the more convincing. Whatever Williams had in mind - senior counsel for the phiintiff in addresses acknowledged that it was unlikely that he did have any intention to kill Nicol - the plaintiff understood the request as being a serious one and she reacted badly regarding herself as having placed someone at risk by obtaining the information which she had. On occasions Williams would say to people that they were on their second or third warning. This was said to the plaintiff who says that she had not previously received any warning. Further at these meetings employees were encouraged to state any complaint they had about other employees or to make comments about them. The plaintiff says she found this demeaning. Williams says that he based this practice upon what he had been taught about management techniques. On the evidence I have I am not prepared to find that this amounts to a breach of duty towards the Plaintiff. -- 17 of 35 -- 18 I should add that the plaintiff said that she regarded her position as quite safe because of her performance. The plaintiff alleges that on one occasion there was a discussion involving herself and other members of the staff including a Mr. Camplin. In the course of discussion about a feature or an advertisement Camplin made a remark that he "did not like big-breasted women anyway." The plaintiff taking this as having some reference to her but not being offended by it responded with a rude gesture with her finger. She says that she thought this was the end of the matter. However later she says she was called into Williams' office where Camplin was present. She says that Williams then said that she (the plaintiff) had made a sexual harassment complaint to the AJA. According to the plaintiff this was entirely false and considerably embarrassed her in the presence of Camplin and she apologised to him and informed him that it was "a load of bullshif'. The plaintiff says that she was "devastated" by this occurrence. She suggests that Williams must have found out about the remark and the effect of her evidence is that he used it then as a means of creating trouble between her and Camplin. It appears that Williams was aware that Camplin had had a previous complaint of sexual harassment against him in some previous employment. Williams' account is that the plaintiff made the complaint and that as he was obliged to, he set up a meeting with the plaintiff and Camplin and another member of the staff being present. He says that Camplin apologised to the plaintiff and that the plaintiff apologised to Camplin and that that disposed of the matter. -- 18 of 35 -- 19 I did not hear from Camplin on this subject. I accept the plaintiff's evidence that she did not make any complaint. The conclusion then must be that Williams has used this incident as a means of fomenting trouble between the plaintiff and another member of the staff. A tendency on his part to play one member of the staff off against another is referred to in the evidence of some of the witnesses. In reaching the conclusion I have I have not overlooked the particulars provided on this subject. Matters came to a head on 6 December 1991. There had been a meeting which I think it is likely was held on the previous day. The plaintiff and Hartig had together been to see a doctor. There was a meeting at which Williams demanded to know where they had been and the plaintiff said that she had been at NORQEB. She had in fact been there for the purposes of a feature which was to be published but did not refer to the visit to the doctor. An argument developed between them. On 6 December the plaintiff said she had been informed that her de facto husband's father was close to death and had been asked to go to Maryborough to see him. The plaintiff says that she had some time prior to this made arrangements with Williams' predecessor to go to Maryborough if that became necessary because of his illness. According to the plaintiff, Williams said, "It's out ofthe question. It's too close to Christmas. You're entitled to compassionate leave, however I'm not about to give you any." The plaintiff says that this left her in shock: Her de facto husband's father died two days later. -- 19 of 35 -- 20 The plaintiff on the 6th, consulted a doctor who arranged for her to see Dr Green, a psychiatrist on 16 January 1992. Dr Green provided a report dated 20 January 1992 which is Exhibit l(A). This report was provided to WorkCover. Williams denies that he refused the plaintiff leave to go to Maryborough. He has a recollection of her raising this although he is not certain that it was on the 6th. He says that when she asked he said that, "Of course she could." He also made it clear in evidence that there would have been no impediment to her going as the newspaper was to close down for the Christmas period. His account is that on 6 December he had to confront her about where she had been the previous afternoon and that this led to something in the nature of an argument with the plaintiff accusing him of attacking or harassing her and that as a result he bought another. person, Deanne Western, into the room as a witness. There is some confusion about the events insofar as they concern meetings between the plaintiff and Williams about the two subject matters namely the plaintiff's whereabouts on the 5th and her desire to go to Maryborough because of the pending death of her de facto husband's father. It is not entirely clear whether both of these meetings occurred on the 6th or one occurred on the 5th and one on the 6th. I am however satisfied that the meeting which led to the plaintiff leaving the office for the last time and seeking medical treatment occurred on the 6th and concerned the plaintiff's desire to go to Maryborough and Williams' refusal of it. I generally accept the account which the plaintiff has given about this. Western was called but does not appear to have any recall of being present at a meeting on the plaintiff's last day of work although it would seem she must have been there at one of the -- 20 of 35 -- 21 meetings. The plaintiff was taken by Hartig to a medical centre where she was examined. A certificate was issued placing her on workers' compensation until 20 December 1991. She later received certificates for a much more extended period. I tum now to some of the other matters alleged in the Statement of Claim. The allegation in paragraphs (2)(d) and (2)(f) as particularised are not borne out by the evidence. However there was evidence from the plaintiff of an occasion when Williams called heF· and another employee into. his office and said that of the two of them he could sack the other person and give the plaintiff her job or sack the plaintiff and give the other person the features co-ordinator's job and that "either way one of you could be sacked". I accept the plaintiff's evidence in this regard. So far as the allegations in paragraph 7(g)(i) are concerned, whilst it is clear that steps were taken to limit the plaintiff's access to telephone calls and whilst this I have no doubt made her tasks more difficult I am not prepared to find this went beyond the reasonable prerogative of management. In relation to paragraph 7(A)(g)(ii) whilst I am prepared to accept that Williams did cancel her car allowance at about the time her employment ceased, the evidence suggests that she had been paid what she had been entitled to by way of a car allowance until that time. I accept what the plaintiff says about Williams' peremptory cancellation of the car allowance and the terms he used in informing her of this. -- 21 of 35 -- 22 The plaintiff also gave evidence about a number of incidents involving other members of the staff at which she was present and which she relies upon. These include aggressive and humiliating conduct by Williams towards a co-employee, one Roberts, who is a homosexual. It included abusive language by Williams towards Roberts such as calling him "a poofter" and walking up to Roberts' desk and wiping everything off the top of his desk and throwing. it on the ground saying, "Leave it there. Let the poofter pick it up himself" She also alleges that Williams picked up Roberts' chair and threw it in amongst the staff saying that he did not like "poofters" sitting on his chair. This was not the subject of any particulars but it was canvassed in the evidence. Williams denied this account. The plaintiff says that Roberts made no secret of his sexuality and that she considered him a good salesman and that she was distressed by this treatment of him. According to the plaintiff she stood up for Roberts when Williams proposed to sack him and this resulted in him not being dismissed at that time although he was dismissed at a later time shortly before Christmas. According to her, Williams was critical of her having delayed his sacking until about Christmas resulting in him not having any employment over the Christmas holiday. Williams denies the allegations about Roberts. There is a statement from Roberts which is however, in somewhat general terms and is unsatisfactory. It does not make any reference to the matters that I have just referred to. Nonetheless I was left with the conviction that what the plaintiff said about these matters was -- 22 of 35 -- 23 to be accepted. I also accept the plaintiffs account of the incident involving Sharon Smith and Williams' abuse of her in the plaintiff's presence and the presence of a client. There were other particulars alleged or incidents referred to which I do not however regard as of any real significance or which do not justify a finding in the Plaintiff's favour. I will not refer to all of them but they include the reference to Williams' allegations that persons were not members of the Australian Journalist's Association (the plaintiff says she was not concerned about this asshe·was a member) and the incident involving Mr Ezzard and the wi'iting on the whiteboard. The plaintiffs claim is primarily based upon Williams' conduct towards her. However she claims also to have been adversely affected by Williams' conduct towards other members of the staffin her presence both at meetings and on the occasions that I have just referred to. It seems to me that in a case like this where the evidence establishes a course of conduct generally towards her and other members of the staff, that she is entitled to rely upon such incidents even though they were not directed towards her personally. The plaintiff says that the conduct of Williams seriously affected her emotionally and there is evidence that her state did deteriorate during this time. This comes from a number of witnesses who said that they observed her to break into tears on occasions. Williams says that he noticed some deterioration in her which he ascribed to her difficulty in performing her tasks. -- 23 of 35 -- 24 I am satisfied that during this time that as a result of Williams , treatment of her, the plaintiff's emotional state did deteriorate. This was observed both by workmates and her daughter and de facto husband. Furthermore she had increasing problems with migraine headaches. On 6 December following the incidents which I have described, she required medical treatment and shortly after that received psychiatric treatment. Before turning to the psychiatric evidence I should refer to some aspects of the evidence in which I do not accept the account given by the plaintiff. I am satisfied that when on 20 December the plaintiff and her de facto husband and another male friend returned threats were made by the plaintiff s de facto husband to Williams and that a threat was also made to Mrs· . . Cundy, an employee. The discussion, I am satisfied, was heated on both sides. .The next··· matter concerns evidence that the plaintiff changed the top part of her clothing in the office in the presence of both male and female members of the staff. I am satisfied this did occur.. 1 am also satisfied that her dress on some occasions was inappropriate as described by some witnesses. According to Dr Green, the plaintiff was suffering a major depressive disorder when he saw her in early 1992. At the trial it was Dr Green's opinion that the plaintiff now suffers a personality disorder with marked dependency, phobic anxiety and panic and that a very important factor in this is the dependent component of her personality. There is no evidence which suggests that the plaintiff required psychiatric help before this notwithstanding a fairly difficult earlier life and it is Dr Green's view that whilst she had a vulnerable personality she was not severely predisposed to psychiatric disorder or breakdown. -- 24 of 35 -- 25 He expresses the view that the major factor in precipitating her psychiatric condition was her treatment by Williams at the defendant's newspaper and that given the time that the condition has subsisted for, it is likely to be permanent although there may be some relatively modest improvement. He does not think that the plaintiff is likely to be able to return to the workforce. Dr Alcorn on the other hand, whilst initially expressing the view that the plaintiff suffers from a borderline personality disorder, altered his opinion having read the transcript of evidence and having been present while some evidence was given. His opinion at trial was that she suffers a histrionic personality disorder. His-view was that if she had been subjected to the sort oftfeatment she alleged this could have precipitated such a condition but this should with treatment have resolved itself in the period of some 12 to 18 monthsJollowing its development. He thought that she should have been able to return at least to part time work by that time. He did not think that she had a particularly dependent character although he thought there may have been some dependent features of it. The effect of his report which is Exhibit 31 (B) was that the events of the workplace could be construed as only a moderate stressor in the context of "her turbulent and distressing life and psychiatric and substance using symptomatology." As I understand his opinion he does not regard the events which she alleges occurred in the course of her employment as playing any role in her present condition. -- 25 of 35 -- 26 Dr Alcorn plainly had proceeded upon the basis that the plaintiff had exhibited some drug seeking behaviour and some dependency upon drugs. I do not accept that this is borne out by the evidence and I think: it fair to say that Dr Alcorn ultimately acknowledged that this was so. Similarly Dr Alcorn thought that the plaintiff had exhibited a lack of motivation in seeking work but the evidence satisfies me that she has made many applications for jobs. I accept the evidence of Dr Green as to the plaintiffs condition, its cause and its future. I find this more convincing that Dr Alcorn's opinion which is based upon some assumptions as to- the plaintiff s personality and history prior to the time I am concerned with, at least some of which are not in my view borne out by the evidence. I have already referred to Dr Alcom'-s acceptance that an examination of the records does not support a finding of a drug seeking or . drug dependent behaviour and similarly I am not satisfied that the evidence establishes that she was a person who found it difficult to obey orders or take directions. Both Dr Alcorn and Dr Green expressed the view that an average person - that is not one with any particular vulnerability - would be at risk of suffering adverse psychiatric consequences if subjected to the behaviour that I have found occurred. Dr Green refers to th~ development of emotional problems such as anxiety and apprehension and said that for a person to be subjected to this sort of treatment on a prolonged basis would be likely to result in what would be diagnosed as an anxiety disorder which might evolve into a depressive disorder associated with continuing symptoms of anxiety. It was Dr Alcorn's view that a normal individual might develop an adjustment disorder although some individuals might go on to develop a major depressive disorder. -- 26 of 35 -- 27 I am inclined to think: that even in the absence of such evidence the Court would be entitled to conclude that a person might develop some psychological or psychiatric harm in such circumstances. However the evidence of the two psychiatrists makes this abundantly clear. The defendant, once the foreseeability of some harm or injury of this kind is foreseeable, will be responsible for the consequences to the plaintiff (assuming the other elements of the cause of action are made out), notwithstanding that there may be particular consequences to the individual concerned, which are greater than would be expected in someone without that person's special wlnerability. Although it was suggested in submissions on behalf of the defendant that no action was permissible in respect of psychiatric injuries alone in the absence of some frank bodily injury I am satisfied that psychiatric injury is sufficient to satisfy the element of damage in a cause of action of this kind. See Bunyan v. Jordan (1937) 57 CLR 1 at p. 16, Mount Isa Mines Ltd v. Pusey (1970-71) 125 CLR 383. Wodrow v. Commonwealth ofAustralia (1992) Aust Torts Reports 62, 711 at 62, 727 and Gillespie v. Commonwealth of Australia 104 ACTR 3 at p. 4. I was referred to a number of cases in which actions had been brought by employees claiming to have suffered psychological or psychiatric damage as a result of being unnecessarily exposed to stressful situations in the course of their employment. Each of these is, it seems to me, no more than an illustration of the general principles which apply to an action brought by an employee against an employer for a breach ofthe latter's duty to the former. The duty of an employer to an employee is to take reasonable care to avoid injury to the -- 27 of 35 -- 28 •employee. An employer who unreasonably exposes the plaintiff to a foreseeable risk of injury will commit a breach of that duty of care. An employer has a non-delegable duty to provide a safe system of work for an employee. Whilst it might readily be accepted that Williams as the defendant's manager and the person in charge of the members of the defendant's staff, was entitled to use a strong hand in transforming the newspaper from a loss making concern to a profitable one, his treatment of the plaintiff on the facts as I have found could not be justified by the most generous assessment of the parameters within which a reasonable managerial prerogative might be exercised in the circumstances which he faced, and amount to a breach of the duty owed to the plaintiff as an employee for which the defendant is vicariously responsible. I am satisfied that the Plaintiff's condition is causally related to such breach. Furthermore, it seems to me that the plaintiff is entitled to succeed upon the basis of the failure by the defendant to provide a safe system of work. No attempt was made by the defendant to place any evidence before the Court as to the existence of any system which might have ensured that employees were not subjected to treatment of the kind I have found occurred. It is one thing to give a manager a free hand to convert a business to a profitable one from a loss . making one. It is another to fail to take reasonable steps to ensure that employees are not subjected to such treatment. The evidence in this case satisfies me that the plaintiff is entitled to succeed on the basis of a failure to implement such a system and that this failure was a -- 28 of 35 -- 29 substantive cause of the development of the plaintiff's psychiatric condition. Finally there is a claim for breach of statutory duty based upon the provisions ofS.9 of the Workplace Health and Safety Act 1989 as amended. The effect of Rogers v. Brambles Australia Limited Unreported Judgment: CCA Qld App. No 189/95 (B.11.96) seems to be that a plaintiff establishes a cause of action upon proof of a breach of section G9 of the Act unless the employer establishes that there were no practicable means of avoiding the injuries. In the present case, the plaintiff, I have found, sustained psychiatric injury in the course of her employment with the defendant and the evidence does not establish that there were no practicable steps open to the defendant to avoid such injury. Before leaving the question of liability there are two matters which should be mentioned. Firstly as I have already said, I think: the plaintiff is entitled to rely not only upon the conduct directed towards her but also other conduct of Williams which was directed at others in her presence. In am wrong about this, I consider that the plaintiff would still have been entitled to succeed as in my view, the conduct of Williams towards her, particularly at the meetings to which I have referred but also generally, must be regarded as a substantive cause of her psychiatric condition. The second matter concerns a submission that the defendant could not be vicariously responsible for the incident in which Williams asked her to find someone to kill the man Nicol. I accept that the defendant cannot be vicariously responsible for this conduct. However it seems to me that it is another matter to conclude that this conduct would not have been -- 29 of 35 -- 30 obviated by the implementation and enforcement of a proper system of management in so far as it concerned dealings with employees. Finally, I should add that even in the absence of my having accepted this evidence, or if, accepting it, it is put to one side, I would have concluded that the plaintiff's psychiatric condition had been substantially caused by the general conduct of Williams to which I have just referred. Turning to the question of damages, the plaintiff is now 43. She has as a consequence of what occurred largely lost interest in life. She has had a substantial destruction of her capacity to enjoy life. She is currently living at Bundaberg Sometimes she lives with Miss Trani, a young woman with whom she was closely associated in Ballarat. Miss Trani regarded her as a mother figure in her earlier years. Sometimes she lives in a house nearby. Miss Trani keeps an eye on her and attends to some of her needs. The plaintiff has been staying with her daughter who lives at Townsville whilst she has been here for the purposes of the trial and these tasks have fallen to her daughter during that time. I assess the plaintiff's general damages in the sum of $65,000.00. Of this I ascribe some $30,000.00 to the past. I allow interest at the rate of2% per annum for 6.25 years producing a sum of $3,750.00. Details of the plaintiff's work history appear in the evidence. Her tax returns were tendered as exhibits. After leaving Kalgoorlie the plaintiff obtained employment at a radio station and night club. For sometim(;'l after her arrival in Townsville she received ~ widow's pension together with some income as a member of the Army Reserve. She was a full-time member of the Army for about 7 months. From then until December 1991 she had worked for Wormald -- 30 of 35 -- 31 Limited, Magnetic Press Pty. Ltd., and the defendant. The documents which have been tendered do not show precisely the periods during which she was employed in each of these positions. However it can be accepted she was in employment generally during those periods. However she cannot be regarded as having been continuously in employment since her arrival in Townsville. It is obvious from the evidence I heard that employment in newspapers such as The Townsville Independent News is somewhat precarious. Many of the witnesses or persons referred to in evidence were dismissed or had resigned. None of the witnesses who gave evidence before me was still employed there. Moreover there has to be taken into account, the possibility that the plaintiff's vulnerability may have resulted in the onset of such a condition in other circumstances although I accept Dr Green's opinion that she was not highly wlnerable. I have evidence of her income with the defendant and calculations based on pay rates applicable to country newspapers. I allow loss of earnings, including loss of superannuation entitlement until the present, in the sum of$75,000.00. I allow interest on the difference between this amount and the total sum received by way ofincome substitution (workers' compensation payments and social security payments) which total $14,127.00 at 5% per annum for 6.25 years. This produces an amount of$19,022.00. Similar considerations apply in the assessment of future economic loss. In addition the ordinary vicissitudes and contingencies must be allowed for. -- 31 of 35 -- 32 Although there is likely to be some improvement in her present condition, she will not return to the workforce. I allow for future economic loss the sum of $160,000.00 including loss of superannuation entitlement. The plaintiff has required considerable care and assistance. Her relationship with her de facto husband broke up at about the time she was overcoming her dependency on narcotic drugs which had been prescribed for her in the course of her treatment following the events I am concerned with. Since that time as I have already mentioned, the burden of this has fallen on others, particularly Miss Trani. I accept that the plaintiff requires the type of care and assistance which Miss Purse, an occupational therapist referred to in evidence. She needs someone to keep an eye on her and assistance with particular tasks. Some discount for contingencies has to be applied to the figure claimed. It was accepted that an appropriate rate per hour was $8.00. Doing the best I can, I allow past care and assistance in the sum of$120,000.00 I allow interest at the rate of2% per annum on this sum for 6.25 years producing an amount of $15,000.00. As far as the future is concerned, the plaintiff will continue to require ongoing assistance of about the present order although some allowance has to be made for the improvement which Dr Green thinks will occur. As well, the other factors to which I have already referred have to -- 32 of 35 -- 33 be taken into account. I allow for future care and assistance the sum of $100,000.00. Special damages representing sums paid by the Workers' Compensation Board amount to $5,599.23 and a sum of $2,339.84 payable to the Commonwealth Rehabilitation Service. There are claims for medical, pharmaceutical and travelling expenses. Unfortunately, so far as the medical expenses are concerned, all that I have are the details of her total medical expenses over the relevant period. No attempt was made to extricate the relevant expenditures from the Medicare schedules (which do not of themselves identify what the treatment was for) and this being so, notwithstanding that I am satisfied she must have incurred significant expenditures, any attempt to assess that account would be a guess. See Ray Teese Pty Ltd v. Syntex Australia Ltd (1998) lQd R 104. I therefore decline to make any allowance under this head. So far as pharmaceutical expenses are concerned, I allow the sum claimed of $1 ,215.00. So far as the travelling expenses are concerned, it appears that the plaintiff travels from where she lives at Bundaberg to Maryborough for these purposes. I have not had any evidence that would suggest why this would be necessary or reasonable and accordingly I make no allowance for this. I allow the sum of$610.00 for travelling expems~s whilst in Townsville. The Fox v. Wood component is $2,202.80. So far as future medication and pharmaceutical expenses are concerned, I think it is reasonable to allow the amount claimed of$I,387.00 which represents some $2.50 per week for only some 15 years and the sum of$I,387.00 for future medical expenses which is similarly calculated. -- 33 of 35 -- 34 Again for the reasons that I have already indicated I do not make any allowance for future travelling expenses. A claim was advanced for aggravated and exemplary damages. Assuming such a claim is open (see Lamb v. Cotogno (1997-98) 164 CLR 1) the position has to be considered as between the plaintiff and the defendant and not as between the plaintiff and Williams. There is evidence that the plaintiff and Miss Hartig contacted a director of the defendant, Colman, and complained about Williams and the effect his conduct was having on some of the staff The difficulty about this is that the evidence does not permit a finn conclusion to be .' drawn as to just when this occurred and in particular whether: it occurred at a time which might have provided an opportunity for the directors of the defendant to investigate the matter and take remedial action which might have affected the course of events. Furthennore, the plaintiff relied upon evidence of difficulties between Williams who was then the manager of a newspaper in Warrnambool and the workers at the newspaper which resulted in a complaint being made to the ultimate controllers of the newspaper through a parent company in Melbourne. It is suggested that had appropriate inquiries been made about Williams before he was engaged by the defendant to manage The Townsville Independent News, his history of conduct generating complaint by those who he was in charge of would have been known: However, an examination of the evidence ofMr Gibson who was called on this subject and that of Williams suggest that these difficulties arose in the course of a fairly painful period of technological change at the newspaper and I am not convinced that any investigation would necessarily have warranted the defendant forming a judgment averse to -- 34 of 35 -- 35 Williams' capacity to manage employees. In the result I am not persuaded that it is appropriate to award damages beyond compensatory damages. From the total of$572,512.87 has to be deducted the amount of $23,292.04 paid by WorkCover. There will be judgment for the Plaintiff against the Defendant in the sum of $549,220.83 with costs to be taxed. -- 35 of 35 --