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Griffin v Brisbane City Council[2024] QCA 157

Griffin v Brisbane City Council[2024] QCA 157

SUPREME COURT OF QUEENSLAND

CITATION:

Griffin v Brisbane City Council [2024] QCA 157

PARTIES:

TRICIA MARIE GRIFFIN

(appellant)

v

BRISBANE CITY COUNCIL

ABN 72 002 765 795

(respondent)

FILE NO/S:

Appeal No 63 of 2024

DC No 788 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2023] QDC 229 (Richards DCJ)

DELIVERED ON:

Date of Orders: 9 August 2024

Date of Further Orders: 30 August 2024

Date of Publication of Reasons: 30 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

9 August 2024

JUDGES:

Bond, Flanagan and Boddice JJA

ORDERS:

  1. Date of Orders: 9 August 2024
  1. 1.
    The appeal is allowed.
  1. 2.
    The Orders made on 8 December 2023 are set aside.
  1. 3.
    The matter is remitted to Richards DCJ for further reasons, with a further hearing of the parties, in relation to:
  1. (a)
    Findings of fact and law relevant to the foreseeability of a risk of injury pursuant to Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld);
  1. (b)
    Findings of fact and law relevant to the content of the duty of care owed by the respondent to the appellant pursuant to Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld);
  1. (c)
    Findings of fact and law relevant to the breach of duty pursuant to Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld);
  1. (d)
    Findings of fact and law relevant to causation pursuant to Section 305D of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
  1. 4.
    The parties provide further submissions on the question of a costs order to be made in this Court by 23 August 2024.
  1. 5.
    Reasons to be published at a later date.
  1. Date of Further Orders: 30 August 2024
  1. 1.
    The appellant’s cost of the appeal be her costs in District Court proceeding BD 788/20.
  1. 2.
    The respondent bear its own costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS CLEARLY WRONG – PARTICULAR CASES – where during the course of employment of the appellant by the respondent in a call centre, the appellant suffered psychiatric injury as a result of dealing with a particular serial caller – where the appellant sought damages for personal injuries and consequential loss arising from negligence and/or breach of contract by the respondent – where the respondent accepted it owed the appellant a duty to take reasonable precautions against psychiatric injury and where quantum was agreed – where the respondent disputed breach of duty and causation – where the trial judge erred in in failing to decide the issues of disputed liability within the applicable statutory legal framework – where the trial judge erred in dismissing the claim on the basis that the injury sustained was not reasonably foreseeable by the respondent

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305C, s 305D, s 305E

Bersee v State of Victoria (2022) 70 VR 260; [2022] VSCA 231, followed

Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36, cited

Director of Public Prosecutions (Cth) v Hart (No 2) [2005] 2 Qd R 246; [2005] QCA 51, cited

Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182, applied

Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44; [2005] HCA 15, cited

Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12, followed

Shaw v Thomas [2010] NSWCA 169, cited

Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41, cited

Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35, cited

COUNSEL:

S D Anderson for the appellant

B F Charrington KC, with M X Kehoe, for the respondent

SOLICITORS:

Shine Lawyers for the appellant

City Legal – Brisbane City Council for the respondent

  1. [1]
    BOND JA:  On 9 August 2024, during the course of oral argument of the present appeal, it became clear that both parties agreed, correctly, that the fact-finding at trial had miscarried.
  2. [2]
    When this Court intimated that it was not inclined itself to embark upon the process of primary fact-finding not performed at trial, and after a brief adjournment to consider their position, the parties agreed upon, and the Court made, the following orders:
  1. (a)
    The appeal is allowed.
  1. (b)
    The Orders made on 8 December 2023 are set aside.
  1. (c)
    The matter is remitted to Richards DCJ for further reasons, with a further hearing of the parties, in relation to:
  1. (i)
    Findings of fact and law relevant to the foreseeability of a risk of injury pursuant to Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld);
  1. (ii)
    Findings of fact and law relevant to the content of the duty of care owed by the respondent to the appellant pursuant to Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld);
  1. (iii)
    Findings of fact and law relevant to the breach of duty pursuant to Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld);
  1. (iv)
    Findings of fact and law relevant to causation pursuant to Section 305D of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
  1. (d)
    The parties provide further submissions on the question of a costs order to be made in this Court by 23 August 2024.
  1. (e)
    Reasons to be published at a later date.
  1. [3]
    These are my reasons for joining in the making of those orders and, costs submissions having now been received, for concluding that the appropriate costs orders are:
  1. (a)
    The appellant’s cost of the appeal be her costs in District Court proceeding BD 788/20.
  1. (b)
    The respondent bear its own costs of the appeal.

Relevant background

  1. [4]
    The respondent Council operated a call centre at which a large group of its workers dealt with enquiries, complaints and after-hours emergencies the subject of calls to the centre from members of the public.  The largest group of call centre workers worked standard office hours.  A smaller group worked an after-hours shift to 11.00 pm and a smaller group still worked a night shift from 11.00 pm to 5.30 am.
  2. [5]
    The appellant worked in the call centre from 28 July 2008 to 6 March 2017.  Her duties entailed answering and logging incoming telephone calls.  She worked as part of the after-hours team, generally working weekend and night shifts.  During a standard shift she would receive approximately 50-60 incoming calls.  The calls were at times aggressive, inappropriate, disturbing and/or distressing.  Some members of the community called more than others.  Some were abusive and threatening.  Others were regular and persistent.
  3. [6]
    The respondent conducted some training with its call centre workers in the handling of abusive calls, including by training the workers to warn the caller that they could terminate the call if they did not stop the abuse.
  4. [7]
    At trial the respondent admitted that the issue of serial callers was raised at numerous team and staff meetings during the relevant period.  One example of how the issue was addressed was expressed in a memorandum dated 18 September 2015 sent to staff by Mr Hackett, the respondent’s Manager Customer Services, which –
    1. described the management of verbally abusive calls received by the call centre workers as “a serious matter” and one on which the respondent had “zero tolerance”;
    2. reminded staff that actual or perceived threats should be reported so that they could be investigated to determine whether they were of a minor or a major nature;
    3. advised staff that of “some key points to remember when managing any type of incident” including:

“  If the caller makes you feel uncomfortable, upset or distressed due to their language, an incident or near miss report must be lodged.

· EAP is available if the call adversely affects you … .”

  1. [8]
    The “EAP” which Mr Hackett had advised was available if a call adversely affected the worker was a reference to the respondent’s “Employee Assistance Program.”  By that program the respondent made available to its workers free, confidential psychological counselling for help with, amongst other things, “anxiety, stress and depression”; “career”; “communication”; and “conflict”.  Mr Hackett was called by the respondent to give evidence.  His understanding of the EAP was that it was “an anonymous counselling service for employees who are distressed or upset”.
  2. [9]
    Obviously, and as a general proposition, the respondent must be taken to have appreciated the risk that some of the calls with which its call centre workers had to deal could adversely affect the workers in such a way that it was appropriate to have a policy of offering them free psychological counselling for help on topics such as those identified in the previous paragraph.
  3. [10]
    More specifically, the respondent must also be taken to have known that some calls, including from serial callers, had caused anxiety related problems to the appellant and at least to one of its other workers.  Thus:
    1. In 2008 and 2009 the appellant had become distressed consequent upon receipt of a call from someone whose home had been damaged by storm.  She applied for time off and a career break was approved for her, but she did not take it.
    2. On 7 October 2015, the appellant’s colleague, Ms Overall, suffered extreme anxiety as a consequence of receiving a nuisance call from a Mr O'Connor.  He was well-known to the call centre as a serial caller.  Ms Overall reported her anxiety to team leaders and described the effect of the call from Mr O'Connor on her mental health and wellbeing in a “near miss” report.
    3. The appellant also had regular interactions with the serial caller Mr O'Connor.  As time went by she became uncomfortable with those interactions.  On 8 October 2016, she left work before the end of her shift.  The following day she spoke to a supervisor, Ms McMillan.  In that conversation, the appellant broke down, and was crying and shaking, pleading with Ms McMillan that she could not deal with Mr O'Connor anymore.
    4. In December 2016, consequent upon receiving a call from a Mr Trion, the appellant was observed by another staff member to be crying at her desk.  The appellant filed a “near miss” report in respect of that incident.  Mr Trion was known to the respondent as a regular abusive caller.
  4. [11]
    On 5 March 2017, after receiving another call from Mr O'Connor which, amongst other things, raised a complaint which implicitly suggested that he must have been inside the ladies’ toilets at Newstead Park, the appellant broke down.  She ran out the door, drove home and never returned to work with the respondent.  It was not disputed that she had suffered a psychiatric injury during the course of her employment.
  5. [12]
    On 2 July 2018 Mr Hackett wrote a memo to his divisional manager seeking approval to engage the Council’s telecommunication provider to block calls to the call centre from Mr O'Connor and to notify Mr O'Connor of that course.  Amongst other things, that memo advised that in late 2017 at a meeting where call centre workers came together to engage with the leadership team on strategic and operational issues, several workers and team leaders raised concerns regarding the impact of Mr O'Connor’s frequent and lengthy contacts.  He cited the appellant’s case and also the case of another worker who had come forward in January 2018 saying that he regarded Mr O'Connor’s conduct as harassment and stating that he did not feel comfortable dealing with Mr O'Connor anymore.  Mr Hackett recorded his abortive attempts to have any engagement himself with Mr O'Connor.  Approval to block calls was subsequently given and Mr O'Connor’s calls were blocked from mid-2018.  Mr Hackett said that during his 7 years involvement with the call centre, 2 or 3 callers were blocked each year.
  6. [13]
    On 13 March 2020 the appellant commenced a proceeding in the District Court pursuant to which she sought to recover damages for personal injuries and consequential loss arising as a result of the negligence and/or breach of contract of the respondent.
  7. [14]
    Essentially, the appellant’s case was that the respondent owed her a duty to take reasonable care to avoid exposing her to the risk of suffering a psychiatric injury by having to deal with calls of the nature of those she had to deal with.  The appellant said that the respondent had breached its duty to her and that breach of duty had caused her loss.
  8. [15]
    The proceeding was tried before the primary judge on 20, 21, 22 and 27 November 2023.  At trial:
    1. The respondent accepted that “it owed to [the appellant] a duty of care as ordained by sections 305B, 305C and 305D of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”)” and submitted that the “duty was to take reasonable care to avoid the unnecessary risk of foreseeable injury”.
    2. The respondent disputed liability on the basis that the appellant had proved neither breach of duty nor causation.  Its case regarding the former was that it had in fact taken reasonable steps to ensure the safety of the plaintiff, including by developing formal policies and by providing training.  Its case regarding the latter was that the appellant had not proved factual causation in the sense required by the law.
    3. Quantum was agreed between the parties at $251,000 clear of the refund to City WorkCover.
  9. [16]
    The primary judge published her reasons for judgment with commendable promptness on 8 December 2023.  However, the primary judge did not decide either of the issues on which the respondent had disputed liability.  Nor did her Honour make the primary findings of fact which would have enabled those issues to be decided.  Instead, the primary judge dismissed the claim on the sole basis that the injury sustained by the plaintiff was not reasonably foreseeable by the respondent.  The respondent had not submitted that the claim should be dismissed on that basis.
  10. [17]
    For reasons which follow, I conclude that insofar as foreseeability might have been relevant to the issues in contest at the trial, the primary judge’s finding did not address the right questions within the right legal framework.  The primary judge was not justified in dismissing the appellant’s claim on the basis she did.  The fact finding at trial miscarried.
  11. [18]
    Although both sides had advanced written submissions that this Court could nevertheless proceed to determine liability one way or the other and, during the oral argument the respondent maintained that position, as the Court intimated during the oral hearing that submission must be rejected.  The primary focus of an appeal by way of rehearing which raises issue of fact is whether this Court can be satisfied that the decision of the judge below wrongly decided the issue of fact.[1]  As a general proposition, it is not for this Court to perform for the first time substantial tasks of primary fact finding which should have been performed below, but were not.[2]  That is so, not least because the requisite primary fact finding required consideration and evaluation of the evidence of particular witnesses heard by the judge (but not by this Court) but also because proceeding in that way would deny appeal rights to whichever party was disappointed in whatever primary findings of fact which this Court might make.

The applicable legal framework

  1. [19]
    It was common ground that the appellant was a “worker” as defined by that term pursuant to the provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act).
  2. [20]
    Accordingly, the following observations made in Inghams Enterprises Pty Ltd v Kim Yen Tat[3] became apposite:

“The proper starting point for examination of liability issues in a case such as the present is a consideration of the relevant provisions of ss 305B–305E of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

These provisions broadly correspond to ss 9–12 of the Civil Liability Act 2003 (Qld) and are provisions which are largely replicated in a number of statutes in pari materia throughout Australia.  As the High Court observed in Adeels Palace Pty Ltd v Moubarak “[i]f attention is not directed first to [such provisions], there is a serious risk that the inquiries about duty, breach and causation will miscarry”.”

  1. [21]
    Sections 305B–305E of the Act provide as follows:

“Part 8

Civil Liability

  1. Division 1 Interpretation
  1. 305
    Definitions for pt 8
  1. In this part—
  1. duty means any duty giving rise to a claim for damages, including the following—
  1. (a)
    a duty of care in tort;
  1. (b)
    a duty of care under contract that is concurrent and coextensive with a duty of care in tort;
  1. (c)
    another duty under statute or otherwise that is concurrent with a duty of care mentioned in paragraph (a) or (b).
  1. duty of care means a duty to take reasonable care or to exercise reasonable skill (or both duties).

305A

…

  1. Division 2 General standard of care

305B

General Principles

  1. (1)
    A person does not breach a duty to take precautions against a risk of injury to a worker unless—
  1. (a)
    the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
  1. (b)
    the risk was not insignificant; and
  1. (c)
    in the circumstances, a reasonable person in the position of the person would have taken the precautions.
  1. (2)
    In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
  1. (a)
    the probability that the injury would occur if care were not taken;
  1. (b)
    the likely seriousness of the injury;
  1. (c)
    the burden of taking precautions to avoid the risk of injury.

305C

Other Principles

  1. In a proceeding relating to liability for a breach of duty—
  1. (a)
    the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
  1. (b)
    the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
  1. (c)
    the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.
  1. Division 3 Causation

305D

General Principles

  1. (1)
    A decision that a breach of duty caused particular injury comprises the following elements—
  1. (a)
    the breach of duty was a necessary condition of the occurrence of the injury (factual causation);
  1. (b)
    it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability).
  1. (2)
    In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.
  1. (3)
    If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach—
  1. (a)
    the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
  1. (b)
    any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
  1. (4)
    For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.

305E

Onus of proof

  1. In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

The proper framing of the questions for determination

  1. [22]
    The appellant’s statement of claim asserted:
  1. “4.
    It was a term, express or otherwise, inter alia of the contract of employment between the Plaintiff and the Defendant and/or it was the duty of care owing to the Plaintiff by the Defendant that the Defendant:
  1. (a)
    Provide workers, including the Plaintiff, with a safe place of work;
  1. (b)
    Provide and maintain a safe and proper system of work for workers, including the Plaintiff, in the performance of work duties;
  1. (c)
    Provide the Plaintiff with proper and adequate instructions on training and safe work practices, policies and procedures;
  1. (d)
    Provide adequate and proper supervision of the workplace and the Plaintiff to ensure that the Plaintiff was not exposed to foreseeable risk of injury in the performance of the Plaintiff's employment;
  1. (e)
    Warn the Plaintiff of any foreseeable risks that the Plaintiff was or may have been exposed to in the course of the Plaintiff's employment;
  1. (f)
    Take all reasonable steps to identify and assess any and all reasonably foreseeable risks of injury to which the Plaintiff was exposed in the performance the Plaintiffs duties, and to take all reasonable steps to eliminate such risk of injury and/or minimise such risk as reasonably possible; and
  1. (g)
    To comply with its obligations under the WHSA and associated Regulations and Codes of Practice.”
  1. [23]
    At common law a duty of care in tort is a duty of a specified person or a person within a specified class, to exercise reasonable care within a specified area of responsibility to avoid specified loss to another person, or to a person within a specified class.[4]
  2. [24]
    Any contended for duty of care must be capable of definition at least by reference to:
    1. the person or persons who owe the duty;
    2. the person or class of persons to whom they owe the duty; and
    3. the kind of risks of harm they must take reasonable care to minimise or avoid.[5]
  3. [25]
    Paragraph 4 of the appellant’s pleading of the nature of the duty of care in tort did not define the relevant duty in this way, in that it failed to clarify the kinds of risks of harm which the appellant contended that the respondent should have taken reasonable care to avoid.  However, it was made clear later in her pleading that the appellant must have been suggesting that the kind of risk of harm was psychiatric injury.
  4. [26]
    It may be observed that the statement of claim pleaded a duty of care in contract and in tort.  As pleaded, the alleged duty in contract was concurrent and co-extensive with the pleaded duty of care in tort.  Accordingly, both types of duty were to be regarded as falling within the definition of “duty” in s 305 of the Act and therefore subject to the operation of ss 305B to 305E.
  5. [27]
    The respondent’s defence denied that the contract of employment contained the alleged terms and otherwise traversed the appellant’s allegation by non-admission.  However, the respondent did plead the following admission which was specifically adopted in the appellant’s reply:

“… the Defendant owed to the Plaintiff a duty of care and says that the content of that duty is defined by Chapter 5, Part 8, Division 2 of the Workers’ Compensation and Rehabilitation Act 2003.”

  1. [28]
    That admission was ambiguous because it too did not address the kind of risks of harm which it was admitted that the respondent should have taken reasonable care to avoid.
  2. [29]
    Notwithstanding that ambiguity, it can at least be said that, on the face of the pleadings, the parties had agreed that the trial was to be conducted on the basis that the existence of some form of duty of care was not in dispute and that the parties agreed that the content of the duty of care was to be determined by the application of the referenced provisions of the Act.
  3. [30]
    On that basis it was unnecessary at trial to determine the existence and scope of the duty of care in tort at common law by the application of the principles discussed in Koehler v Cerebos (Australia) Limited[6], Kozarov v Victoria[7] and Bersee v State of Victoria[8].  Save that, as will become clear, the primary judge appears to have misunderstood the effect of the High Court’s decision in Koehler and that misunderstanding may have informed the way in which the primary judge disposed of the case, it is similarly unnecessary to consider on appeal the application of those common law principles.
  4. [31]
    If the pleaded admission was the only way in which the issues concerning the scope of the respondent’s duty had been narrowed, what then would have been the framework within which the question of scope would have to be determined?
  5. [32]
    Having regard to the terms of s 305B and to the admission made, if –
    1. the risk of injury to the appellant was foreseeable (that is, that it was a risk of which the respondent knew or ought reasonably to have known); and
    2. the risk of injury to the appellant was not insignificant;

then the scope of the respondent’s duty would be to take the precautions against that risk which a reasonable person in the position of the person would have taken.

  1. [33]
    In other words, if the issues had not been further narrowed, the trial judge’s enquiry would be, first, into s 305B(1)(a) and (b) and, second, into s 305B(1)(c).  As to the former inquiry, two further points should be made.  First, in assessing the question of foreseeability for the purposes of s 305B(1)(a), what is relevant is the foreseeability of the risk of injury of the general kind of that which occurred.  The precise manner in which the appellant received her injuries does not have to be foreseeable,[9]  Second, the s 305B(1)(b) statutory statement of “not insignificant” in lieu of the common law formulation of “not far-fetched or fanciful” was designed to produce “some slight increase” in the degree of probability required by the common law formulation.[10]  However the common law formulation has been oft described as “undemanding”.
  2. [34]
    In this case the questions for the judge were in fact narrowed further by an acceptance by the respondent of the kind of risks of harm which the respondent should have taken reasonable care to avoid.  Senior Counsel for the respondent advised this Court that:

“The starting point is to reassert that the [respondent] in this appeal and at the trial admitted the existence of a duty, including a duty to take reasonable precautions against psychiatric injury.”

  1. [35]
    Such a concession carries with it an inherent proposition about foreseeability because, as Gleeson CJ observed in Tame v New South Wales[11], a necessary 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.  Consistently with that proposition, Senior Counsel for the respondent informed this Court that the respondent did not advance at trial a submission that the risk of psychiatric injury to the appellant was not foreseeable or that the risk was not “not insignificant”.
  2. [36]
    Accordingly, as already recorded, the questions for the primary judge at trial were narrowed to breach and causation.
  3. [37]
    The issue of breach required the primary judge to consider, whether in all the circumstances the respondent failed to take the precautions against the risk of psychiatric injury to the appellant which a reasonable person in the position of the respondent would have taken.  In assessing that question, issues in relation to foreseeability would still retain relevance because they would inform what a reasonable person in the position of the respondent would have done.  This was made plain in Inghams Enterprises Pty Ltd v Kim Yen Tat:[12]

“The learned primary judge approached the question of breach by stating that the following passage in Wyong Shire Council v Shirt remained relevant:

... The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

That his Honour made no specific reference to s 305B is not critical, because the Wyong Shire Council v Shirt calculus is in fact reflected in s 305B(2). However, it is appropriate to note that the source of the applicable law is the statute, not the common law.”

  1. [38]
    The issue of causation also required the primary judge to engage with the statutory provisions.  This point was also made in Inghams Enterprises Pty Ltd v Kim Yen Tat, the applicant in that case having run a similar argument to that which the respondent advanced at trial in the present case.[13]  The primary judge would be required to engage with –
    1. the statutory provisions, which require an approach to causation different to that which is the subject of the common law;[14]
    2. the evidence of the relevant witnesses, including Mr Hackett; and
    3. the respondent’s argument at trial that the appellant had not proved her injury would have been avoided had the alleged breaches of duty not occurred.

The fact-finding below miscarried.

  1. [39]
    As has been mentioned, the primary judge did not engage with breach or causation in the way required by the statute.
  2. [40]
    Rather, the way in which the primary judge framed and answered the finding on which she determined the case appeared in the final three paragraphs of her Honour’s reasons, as follows:[15]

“I accept that the stress caused by working at the call centre triggered the injury suffered by the plaintiff. The question is whether that injury was reasonably foreseeable. In Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at 57 it was noted:

“It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers are at risk of psychiatric injury from stress at work ....

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.”

Whether the defendant could reasonably foresee the injury depends in part on the signs from the employee concerned. In this case the plaintiff had taken one afternoon off work in October 2016 and the day after that she was finding the calls from Wes O'Connor hard to handle. She had been treated for a major depressive disorder in 2009 but the defendant had responded to that by arranging counselling and treatment for her and following the medical advice in terms of arranging reduced hours for her. The reduced hours continued at her request which was on her application in an effort to maintain a work/life balance in 2009. She was not missing work regularly, she was not failing in her work duties. She was one of the best consultants that the defendant employed and regularly received positive work reviews. She took on extra shifts when asked. She handled the calls from O'Connor calmly so that anyone listening and giving feedback would not have realised her inner turmoil. The fact that Kellie Overall was distressed by a call did not necessarily reflect on Ms Griffin‘s ability to cope anymore than Mr Taylor‘s ability to brush off persistent and abusive calls. Aside from the meeting with Kerrie McMillan there was little by way of external signs to signpost the internal turmoil the plaintiff was feeling.

The defendant had a system of training and notifications which was generally sufficient. The plaintiff had indicated that she was finding dealing with Wes O'Connor stressful but she seemed otherwise to be coping well at work and operating at full capacity. She was not obviously floundering until she left work on 5 March 2017. In those circumstances I find that the injury sustained by the plaintiff was not reasonably foreseeable by the defendant.”

  1. [41]
    Based on that finding, the primary judge dismissed the claim.
  2. [42]
    This was an error for a number of reasons.
  3. [43]
    First, the existence of the relevant duty of care was not in dispute.  Implicit in that position was the acceptance of reasonable foreseeability of the kind of injury that had been suffered by the appellant.  Moreover, and as I have explained, the respondent had not submitted that the risk of psychiatric injury to the appellant was not foreseeable or that the risk was not “not insignificant”.
  4. [44]
    Second, and in any event, if ss 305B(1)(a) and (b) had truly been in issue, the proper framing of issues concerning foreseeability was that explained at [32] and [33] above.  The statutory inquiry had to be into the foreseeability of the risk of injury of the general kind of that which occurred, not into whether the particular psychiatric injury suffered by the appellant was foreseeable.  Her Honour does not appear to have enquired into the right issues even if, contrary to the previous paragraph, they should have been regarded to be in dispute.
  5. [45]
    Third, if ss 305B(1)(a) and (b), had truly been in issue, and if, contrary to the previous paragraph, her Honour should be regarded to have intended her finding to be understood as directed to those issues, then I would regard the finding to be “inconsistent with facts incontrovertibly established by the evidence” or one which was “glaringly improbable” or “contrary to compelling inferences.”  The evidence before the primary judge plainly supported findings favourable to the appellant on the proper statutory enquiry into foreseeability.  That conclusion is obvious from what I have recorded at [5] to [10] above.
  6. [46]
    Fourth, the primary judge appears to have thought that Koehler supported the general proposition that reasonable foreseeability of the particular psychiatric injury suffered by an employee is the sine qua non of any liability on the part of an employer for psychiatric injury.  But that is not the law, either under the statute or at common law.  Unfortunately, it seems that her Honour’s attention was not drawn either to Kozarov v Victoria or to Bersee v State of Victoria in which that misunderstanding of the effect of Koehler is explained.  It suffices to quote from the observations of the Court of Appeal in Bersee v State of Victoria (emphasis added):[16]

“Kozarov reinforces the point that questions of foreseeability, which are relevant to the existence and scope of a duty of care, breach of duty, or remoteness of damage, are fact and context specific. In some cases, psychiatric injury will be a reasonably foreseeable consequence of the performance of work and in others it will not be. In Koehler, the High Court referred to what an employer might reasonably assume about the ability to perform the work safely, and in Kozarov the Court concluded that the assumption was irrelevant in the face of the incontrovertible evidence as to risk.

Properly understood, Koehler and Kozarov are at opposite ends of a single spectrum and do not represent a divergence in principle. In Koehler, the plaintiff was performing work of a relatively routine nature that she had agreed to perform. In order to establish that psychiatric injury was a reasonably foreseeable consequence of performing the work it was necessary to take into account what the parties had agreed under the contract of employment. A generalised understanding that workplace stress can lead to injury was insufficient, in the absence of ‘evident signs’ by the particular employee. In Kozarov, the employer had acknowledged that vicarious trauma and therefore psychiatric injury were an obvious consequence of exposure to trauma, and a search for evident signs in the plaintiff was unnecessary to establish the relevant duty of care.

Kozarov makes plain that evident signs of distress or vulnerability on the part of a plaintiff are not a precondition that must be satisfied before psychiatric injury can be found to be reasonably foreseeable and are not a legal criterion for liability. Rather, they provide a means by which reasonable foreseeability may be established on the facts, and in some cases, the absence of them may mean that the employer would have no reason to suspect that psychiatric injury is on the cards for the particular employee or class of employees.”

  1. [47]
    Having regard to those errors, the only available conclusion is that the basis on which the primary judge dismissed the appellant’s claim was wrong.  The order made by the primary judge must be set aside.

What orders should now be made?

  1. [48]
    The primary judge did make some findings which were relevant to breach, in that in some particular respects she accepted the evidence of the appellant over other witnesses, but she did not decide breach or causation or engage with the evidence within the applicable statutory framework relevant to those questions.  Indeed, her Honour did not engage at all with the evidence adduced at trial from Mr Hackett, the author of the memo quoted at [7] above.  His evidence was obviously relevant to any consideration of the question of breach.
  2. [49]
    For reasons already advanced, these questions and the findings of fact relevant to enable them to be addressed properly should not be addressed for the first time in the Court of Appeal.  That is why I joined with the orders remitting the proceeding back to the primary judge.  After giving the parties the further opportunity to be heard, the primary judge must address the parties arguments concerning breach and causation within the framework of the law referenced at [37] and [38] above.

Costs orders

  1. [50]
    It remains to address the question of costs.
  2. [51]
    For her part, the appellant submitted that the orders which the appellant obtained reflect her success on the appeal.  Costs should follow the event unless there is some disentitling conduct on her part (and there is not), so the appellant submitted she should obtain an order that the respondent pay her costs of the appeal.
  3. [52]
    For its part the respondent submits that it was neither party’s fault that the matter needed to be remitted to the primary judge for final determination of the issues raised in the trial.  It submitted that no party has achieved substantive success.  It submitted that the case was not an appropriate one for a costs order in favour of, or against, either party.  Accordingly, it submitted that the proper order was that each party’s costs of the appeal be costs in the proceeding below.
  4. [53]
    In order to overturn the orders made by the primary judge the appellant had no option but to appeal; the respondent opposed the appeal and sought to uphold the orders made by the primary judge; and, accordingly, there is substantive merit in the appellant’s argument that she has succeeded in the event.  Accordingly, I reject the respondent’s submission that no party has achieved substantive success.  On the other hand, there is some substance in the respondent’s point that the question of either party’s ultimate success in the trial has not yet been resolved, and in those circumstances, the respondent should not be required to pay the appellant’s costs of the appeal when it might yet turn out that the appellant fails at trial.
  5. [54]
    I think the proper resolution of the competing positions, doing justice as between the parties, is to formulate an order which exposes the respondent to having to pay the appellant’s costs of the appeal in the event that the appellant succeeds at trial, but which does not expose the appellant to the respondent’s costs of the appeal in the event that the appellant loses at trial.  On the analysis I have made the respondent should not have sought to uphold the primary judge’s order dismissing the appellant’s claim but should from the outset have co-operated in obtaining orders from this Court which enabled the final resolution of the issues at trial in accordance with the law.  The price the respondent pays for having sought and failed to uphold the primary judge’s orders on appeal is that it should bear its own costs of the appeal, in any event.
  6. [55]
    Accordingly, I would order:
    1. The appellant’s cost of the appeal be her costs in District Court proceeding BD 788/20.
    2. The respondent bear its own costs of the appeal.
  7. [56]
    FLANAGAN JA:  I agree with Bond JA.
  8. [57]
    BODDICE JA:  I agree with Bond JA.

Footnotes

[1] Director of Public Prosecutions (Cth) v Hart (No 2) [2005] 2 Qd R 246; [2005] QCA 51, 260 [28].

[2]  This is not to deny the possibility that in a particular case, this Court might have power to do so.

[3] Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182 at [27]-[28] per Bond J (Gotterson and Morrison JJA agreeing).

[4] Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185 at 169 per Gageler J (as his Honour then was).

[5]  Compare Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487 per Brennan J; Swick Nominees Pty Ltd v Leroi International Inc (No 2) (2015) 48 WAR 376 at [115]-[116], [282] per Buss JA.

[6]  (2005) 222 CLR 44; [2005] HCA 15.

[7]  (2022) 273 CLR 115; [2022] HCA 12.

[8]  (2022) 70 VR 260; [2022] VSCA 231.

[9] Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182 at [31] and footnote [6] per Bond J (Gotterson and Morrison JJA agreeing), citing Shaw v Thomas [2010] NSWCA 169 at [43] per Macfarlan JA (Beazley and Tobias JJA agreeing).

[10] Shaw v Thomas [2010] NSWCA 169 at [43] per Macfarlan JA (Beazley and Tobias JJA agreeing); Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 at 333 [26] per Fraser JA (White JA and Mullins J agreeing); Manca v Teys Australia Beenleigh Pty Ltd [2024] QCA 60 at [148] per Applegarth J (Bowskill CJ and Fraser AJA agreeing).

[11] Tame v New South Wales (2002) 211 CLR 317.

[12] Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182 at [35]-[36] per Bond J (Gotterson and Morrison JJA agreeing).

[13] Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182 at [50] per Bond J (Gotterson and Morrison JJA agreeing).

[14]  See Strong v Woolworths Ltd (2012) 246 CLR 182 at [18]-[27], cited in a similar context by Jackson J in Stokes v House With No Steps [2016] QSC 79 at [142]; see also The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103 at [38]-[41].

[15] Griffin v Brisbane City Council [2023] QDC 229 at [71]-[73] per Richards DCJ.

[16] Bersee v State of Victoria (2022) 70 VR 260 at [87]-[89] per Beach, Niall and Macaulay JJA.

Close

Editorial Notes

  • Published Case Name:

    Griffin v Brisbane City Council

  • Shortened Case Name:

    Griffin v Brisbane City Council

  • MNC:

    [2024] QCA 157

  • Court:

    QCA

  • Judge(s):

    Bond JA, Flanagan JA, Boddice JA

  • Date:

    30 Aug 2024

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC788/20 (No citation)08 Dec 2023Proceeding against employer in negligence and/or contract for damages for personal injuries and consequential loss; claim dismissed: Richards DCJ.
Appeal Determined (QCA)CA63/24 (No citation)09 Aug 2024Appeal allowed, orders below set aside, matter remitted for further hearing and reasons: Bond, Flanagan and Boddice JJA.
Appeal Determined (QCA)[2024] QCA 15730 Aug 2024Reasons for orders of 9 Aug and costs orders: Bond JA (Flanagan and Boddice JJA agreeing).

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Bersee v State of Victoria [2022] VSCA 231
2 citations
Jump To
Cite 1 - [2022] VSCA 231
Cite 2 - [2022] VSCA 231
Brookfield Multiplex Ltd v Owners Corporation Strata Plan (2014) 254 CLR 185
2 citations
Jump To
Cite 1 - (2014) 254 CLR 185
Cite 2 - (2014) 254 CLR 185
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36
1 citation
Jump To
Cite 1 - [2014] HCA 36
Corporation of the Synod of the Diocese of Brisbane v Greenway[2018] 1 Qd R 344; [2017] QCA 103
1 citation
Jump To
Cite 1 - [2017] QCA 103
Director of Public Prosecutions (Cth) v Hart[2005] 2 Qd R 246; [2005] QCA 51
4 citations
Jump To
Cite 1 - [2005] QCA 51
Cite 2 - [2005] QCA 51
Cite 3 - [2005] 2 Qd R 246
Cite 4 - [2005] 2 Qd R 246
Griffin v Brisbane City Council [2023] QDC 229
2 citations
Jump To
Cite 1 - [2023] QDC 229
Cite 2 - [2023] QDC 229
Inghams Enterprises Pty Ltd v Tat [2018] QCA 182
5 citations
Jump To
Cite 1 - [2018] QCA 182
Cite 2 - [2018] QCA 182
Cite 3 - [2018] QCA 182
Cite 4 - [2018] QCA 182
Cite 5 - [2018] QCA 182
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
3 citations
Jump To
Cite 1 - (2005) 222 CLR 44
Cite 2 - (2005) 222 CLR 44
Cite 3 - (2005) 222 CLR 44
Koehler v Cerebos Australia Ltd [2005] HCA 15
2 citations
Jump To
Cite 1 - [2005] HCA 15
Cite 2 - [2005] HCA 15
Kozarov v Victoria [2022] HCA 12
2 citations
Jump To
Cite 1 - [2022] HCA 12
Cite 2 - [2022] HCA 12
Manca v Teys Australia Beenleigh Pty Ltd [2024] QCA 60
1 citation
Jump To
Cite 1 - [2024] QCA 60
Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd[2013] 1 Qd R 319; [2012] QCA 315
1 citation
Jump To
Cite 1 - [2013] 1 Qd R 319
Shaw v Thomas [2010] NSWCA 169
3 citations
Jump To
Cite 1 - [2010] NSWCA 169
Cite 2 - [2010] NSWCA 169
Cite 3 - [2010] NSWCA 169
Stokes v House With No Steps [2016] QSC 79
1 citation
Jump To
Cite 1 - [2016] QSC 79
Strong v Woolworths Ltd (2012) 246 CLR 182
1 citation
Jump To
Cite 1 - (2012) 246 CLR 182
Sutherland Shire Council v Heyman (1985) 157 CLR 424
2 citations
Jump To
Cite 1 - (1985) 157 CLR 424
Cite 2 - (1985) 157 CLR 424
Sutherland Shire Council v Heyman [1985] HCA 41
1 citation
Jump To
Cite 1 - [1985] HCA 41
Swick Nominees Pty Ltd v Leroi International Inc (No 2) (2015) 48 WAR 376
1 citation
Jump To
Cite 1 - (2015) 48 WAR 376
Tame v New South Wales (2002) 211 CLR 317
2 citations
Jump To
Cite 1 - (2002) 211 CLR 317
Cite 2 - (2002) 211 CLR 317
Tame v State of New South Wales [2002] HCA 35
1 citation
Jump To
Cite 1 - [2002] HCA 35

Cases Citing

Case NameFull CitationFrequency
Springfree Trampoline Australia Pty Ltd v Forostenko [2024] QCA 255 1 citation
1

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