Coyle v Union College[1997] QDC 312

BETWEEN:

AND:

REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 18th day of December 1997

By this action the plaintiff claims damages for personal injury in the form of psychiatric injury alleged to have been caused by the defendant. The defendant operated at the relevant time a residential college for students, and possibly some others, at the University of Queensland, and the plaintiff was employed there as a general hand from about May 1989 (p.24) until June 1993. The evidence was that he last attended for work on 15 June 1993, and the following day was absent from work, on workers' compensation, on the basis of a certificate from his general practitioner Dr Angelos that he was suffering from “anxiety/stress disorder”: Exhibit 21. On 17 June 1993 the defendant offered the plaintiff a redundancy package (Exhibit 11) which the plaintiff accepted on 20 June 1993: Exhibit 22.

Although the plaint alleges that the relevant actions of the defendant occurred during the time the plaintiff was employed by the defendant, the plaintiff in his evidence said that there was nothing which caused him stress at the college prior to the appointment of a new warden on 1 October 1992: p.31, 76, 77..

The plaintiff conducted his own case, although he had been represented by a solicitor until earlier this year, when the solicitor withdrew. The plaintiff was obviously unfamiliar with the requirements of court procedure, and the rules of evidence, and this caused some difficulty with the conduct of the trial, although in the end the critical issues were, so far as I could tell, adequately exposed. The plaintiff gave evidence himself, and called a number of witnesses, including the psychiatrist who had been treating him since June 1993. The defendant also called a number of witnesses, including a psychiatrist who examined the plaintiff for the purposes of a medico-legal report. The trial lasted four days.

Broadly speaking the plaintiff's allegations divided into two categories: he alleged that there was unfair criticism of the work that he was doing at the college, both as to the way in which he was doing it and as to the results expected of him. Secondly, he alleged that he was unfairly treated under a disciplinary regime, in that he was blamed for things he should not have been blamed for.

Unfair criticism of the plaintiff's work

The plaintiff had been employed by the defendant for a number of years when a new warden of the college, Mr Fraser, was appointed in October 1992: p.198. Mr Fraser's appointment followed an investigation by a sub-committee of the college council into the management of the college, and he was appointed as a full-time warden specifically to take control of the management systems and improve them, particularly catering and cleaning: p.139. Mr Innes, the chairman of the college council, thought that after his appointment the quality of food went up and the number of complaints about that and about cleaning went down: p.140. Mr Fraser also thought that the quality of the cleaning improved as a result of the measures he put in place: p.205.

One of these was to employ Mrs Shaw in the position of a full-time cleaning supervisor. She sought to improve the efficiency of the cleaning operation by establishing specific work programs for the cleaners (including the general hands); some examples are Exhibit 12, and see p.236. She was also more active in a supervisory role, and that lead her to form a view that the plaintiff and the other general hand Mr Pintaric were working quite slowly and inefficiently: p.224-5. She said the plaintiff did not clean windows properly (p.234) and put no effort into cleaning floors: p.253. When she criticized their work from time to time Mr Pintaric always seem to listen and take in what was being said, whereas the plaintiff always had an opinion that differed; he was more inclined to argue about what should be done: p.254. He seemed to become angry and argumentative when she made suggestions about how his work should be done: p257-8. On one occasion she lost her temper with the plaintiff, and wagged her finger at him: p.254; she said that she subsequently apologized for this. Nevertheless it was one of the matters that the plaintiff complained about: p.63. Mr Pintaric said that there were various discussions about the work sheets which were produced by Mrs Shaw, and these were generally friendly but they did sometimes become heated: p.146. He thought that he was sometimes asked to do more than he could do in the time: p.167. His comment was that prior to the arrival of Mr Fraser there was a level of apathy within all of the cleaners, but there was a rigorous campaign by Mrs Shaw to get them more intensely activated: p.171. I think that this assessment was perceptive and accurate. His impression was that Mrs Shaw criticized the plaintiff more than himself, and he thought that at times at least her criticism of the plaintiff was nitpicking: p.161.

Some indication of the difference in approach between the plaintiff and Mrs Shaw emerged during his cross-examination of her at page 234 when he was asking about the time allowed for doing the work involved in cleaning the laundry, and referred to the various tasks involved; she responded that the cleaning was being done daily and it was not necessary to do all of these things every day. Her approach was obviously more flexible and result-oriented. Mrs Shaw said that when there was argument about the time it took to do various jobs she would do them herself to show how long it would take: p.236. On the last day the plaintiff worked there she had presented him with a new duty statement, Exhibit 27 (p.226) and said that the following day she would work through it with him in order to demonstrate that it was workable: p.227. It seems that it was the prospect of this demonstration of her superior efficiency as a cleaner that upset him so much he was unable to continue at work. This was obvious to Mr Pintaric: p.164, 173. The plaintiff claimed this last duty statement was just an impossibility: p.44 and see Exhibit 23. So far as I can tell on a comparison with the earlier ones (Exhibit 12) it is not significantly more demanding. There was no independent evidence that the work required by Exhibit 10 was excessive. The plaintiff was so upset by it he was unable to work and went to see his General Practitioner: p.46.

Mr Brosnan, who was deputy warden of the college in 1993, gave evidence that before 1992 there was some dissatisfaction with the cleaning, but there was some improvement after Mr Fraser took over: p.151-2. Mr Hance who had been working there as a painter was quite critical of the cleaning at the time, and said that the plaintiff and Mr Pintaric worked very slowly and inefficiently: p.273-4. I was a bit wary about his evidence, because he seemed to have been in a dispute for some time with the plaintiff about whether the plaintiff's cleaning technique was causing excessive rusting on stair railings, on the basis that he was mopping chemicals onto them which was causing them to corrode. Mr Hance complained that he had been trying for a long time to get the plaintiff to change his mopping technique on stairs (p.275) and I think this may have left him with some ill-will towards the plaintiff (and see p.36 and 45). I therefore treat his evidence with some caution, but overall it does appear to be clearly established that the general standard of cleaning services in the college prior to Mr Fraser's appointment was not very satisfactory, and after his appointment a vigorous effort was made through Mrs Shaw to improve the efficiency and effectiveness of the cleaning services, which involved changing the plaintiff's work and much closer supervision directed to ensuring that he performed effectively and efficiently.

I think the plaintiff was very resistant to change; he wanted to go on doing things in his own way, because he firmly believed that he knew how things were best done, and because his way of doing things particularly suited him. There was psychiatric evidence that a person with the plaintiff's personality was going to react badly to close supervision: p.269. I think that for this reason the evidence of the plaintiff is not a very reliable indicator of whether there was, objectively, excessive and intrusive supervision of the plaintiff. The only independent evidence supporting such a conclusion was some evidence from Mr Pintaric, but there was also some criticism of his work and he may also not have been entirely objective. My overall assessment of Mrs Shaw in the witness box was that she was someone who was keen to make a good impression as the cleaning supervisor and keen to achieve the sort of results that Mr Fraser was wanting to see, and that she would have reacted to the resistance being shown by the plaintiff to changes in the workplace by engaging in more detailed supervision than would ordinarily be required. I think it is likely that there was some fairly close and detailed supervision of the plaintiff during this period, but I think that that was a consequence of Mrs Shaw's determination to get the plaintiff to work more effectively, in circumstances where the plaintiff was actively resisting any changes to his work processes. I am not persuaded that it was excessive, or unreasonable, or unfair.

The plaintiff also complained that he was asked to do tasks which were impossible, such as removing ingrained stains and scratches from tubs, removing grass stains from windows, removing stains from walls (which was subsequently replaced), and removing from a polished floor a stain which had been there for a long time: p.32-3, p.86. However, I think the criticism the that plaintiff received was for not doing better than he did, for not failing to do something that he could not do; even if a window is clipped and stained, it can still be cleaned to some extent, and the quality of the cleaning can still be assessed, and criticized if inadequate. Mrs Shaw acknowledged that some windows were scratched and in a poor state because of their situation: p.235.

The Cut Foot Incident

One of the disciplinary incidents, which was sometimes referred to as the cut foot incident, occurred on 29 and 30 March 1993. Quite different versions of this incident are given by the plaintiff and Mrs Shaw. The plaintiff's version was that late in the afternoon, about 3.40pm, at a time when the plaintiff was looking forward to knocking off at 4pm, he was with the other general hand, Mr Pentaric, when he was approached by Mrs Shaw who told him that a student had cut her foot on some glass on a particular stairway, and he was to clean it up: p.34. He said he went to the stairway and found a small amount of glass on it which he did clean up. The following day when he arrived at the college he found Mrs Shaw with a broom sweeping up an area around the stairway, cleaning up dirt, leaves, grass etc, and she told him he had not done it properly, to and clean up the glass again: p.34. The plaintiff said he did so. He was subsequently given a written warning by Mrs Shaw, on 30 March 1993: Exhibit 8. This referred to his failure to follow a distinct directive to clean up broken glass from the stairs and walkway on ABC block, and claimed that as a result of this failure he had “caused someone to cut themself”.

Mrs Shaw's version (p.230) was that on the 29 March at about 3.30pm she was told by one of the cleaners that the plaintiff was mopping broken glass off the stairs onto the walkway. She went to the walkway and found the plaintiff there, asked him why he would mop glass off the stairs onto the walkway to which he did not reply, and then asked him to clean it up to which he responded “That's Rod's job. I don't clean the walkway, Rod cleans the walkway.” (p.230) This was a reference to the gardener. Mrs Shaw said she told him that was irrelevant, and that she wanted the glass to be cleaned up now, and she left. She said the next day when she came to work at about 8.30 she met Dennis Brosnan who gave her a note which had something written on it to the effect of: “I have just cut my foot on broken glass, doesn't anyone around here clean up broken glass?” He asked her to look into this and she immediately thought of the previous day's event. While walking towards the relevant stairway she met Brian Hance, the college painter, and then went to the stairway where she found that some of the glass had been cleaned up but there was still a lot there. She got a broom herself and was cleaning up the glass when the plaintiff arrived. She handed him the broom and told him to clean it up and this time to clean it properly. She returned about an hour later and there was still glass there so she cleaned it up herself and took some to the plaintiff and showed him; his reaction was to say disdainfully that she could have got it from anywhere: p.231.

Mr Hance gave evidence which was consistent with the evidence of Mrs Shaw, to the extent that it confirmed the presence of glass on the stairway and walkways, and that he spoke to her about it on that morning: p.277. Mr Brosnan was called by the plaintiff and said that he had no recollection of receiving any written complaint from a student about cutting her foot on glass (p. 148), and thought that he would have remembered it if he had (p. 150), because it would have been unusual, but under cross-examination said that he could not say positively that he had not received a note of the kind described by Mrs Shaw and passed it on to her: p.151. Mr Pentaric said (p. 159) that he was present when the written warning was given to the plaintiff on 30 March 1993 about this incident, but was not asked anything about the events on the previous day. Of course he had no particular reason to remember anything about what occurred on the previous day.

There was one other significant feature of Mr Hance's evidence: he said that when he arrived at work a female student pulled him up and said “I have cut my bloody foot”, indicating where there was glass near the stairs at the ABC entrance; there were two areas of glass, as if it had fallen on each side of one set of stairs: p.275-6. Mr Hance said that he saw the glass there and then went to see Mrs Shaw but met her coming towards that area; he told her of what had occurred and she replied that she knew: p.277. But if this student had just injured her foot when she spoke to Mr Hance, Mrs Shaw would not have been able to know already about this incident; there would not have been time for this student to write a note and get into the hands of Mr Brosnan, who would then be able to pass it on to Mrs Shaw. It seems to me that there are a number of possibilities:

There was one other piece of evidence of the sequence of events: Mr Fraser's recollection was that what was reported to him was that a student had complained about glass being on a stairway; that Mr Coyle had been directed to clean it up and had in fact failed to do so to the satisfaction of the supervisor, so that he asked her to issue a warning and make sure the glass was cleaned up: p.201. This sequence of events is consistent with the sequence given by the plaintiff, although he may not have paid much attention to the significance of this sequence. It is I think worth noting that Mr Fraser's attitude was that what was significant in relation to this incident was the failure to clean up the glass properly after the plaintiff had been asked to do so, not the fact that the student had cut her foot: p.211. That was consistent with Mr Innes's approach (p.145) but I think it is clear from the various letters written subsequently by the plaintiff, and from the evidence of Dr Troup (p.288, 297) that the matter that has been the major concern of the plaintiff was that it was unjust to blame him for the fact that a student cut her foot. A point which he has consistently reiterated is that he was told of the cut foot at the time when he was first asked to clean up the glass (p.42), and therefore the student can not have cut her foot because he failed to respond adequately to that initial instruction: p.72, 73.

The resolution of this matter is very difficult; there was nothing about the evidence of Mrs Shaw which caused me to have any real doubt as to her credibility, and she seemed confident that she was not told about any student suffering an injury until after she had given the instruction to clean up the glass, although she acknowledged that she might have said earlier that someone might cut their foot on it: p.250. There was also the conflict about how she came to give the initial instruction, and whether it was given in the context of the plaintiff mopping glass off the steps while he was cleaning the steps and then being difficult about cleaning up the glass from the walkway where it had fallen. The plaintiff said he was nowhere near the place at the time, but that he was asked to go and do this particular job.

The only contemporaneous document is the written warning dated 30 March 1993 prepared by Mrs Shaw the cleaning manager and given to the plaintiff: Exhibit 8. It is in the following terms:

That is consistent with the evidence of Mrs Shaw, and with the fact that the plaintiff was being blamed for the complaint of someone suffering an injury to the foot as a result. Shortly after the incident, however, on 12 April 1993 the plaintiff wrote a letter to the chairman of the college council, Mr Innes, complaining about the actions of Mr Fraser the warden and Mrs Shaw: Exhibit 5. In that letter a version of the incident is given which is essentially consistent with the plaintiff's evidence, in that the reference to a student suffering an injury was made on the afternoon of 29 March, not on the following morning. At that stage however the plaintiff's complaints were that the disciplinary system which had been instituted by Mr Fraser was not being correctly applied, since Mrs Shaw had proceeded from a first verbal warning to a written warning, instead of to a second verbal warning. Reference was also made to a failure to make allowance for the fact that the student had at least contributed to the injury by being bare foot at the time. There was a request to withdraw the written warning and provide an apology.

In a further letter to Mr Innes on 27 May 1993 (Exhibit 6) the plaintiff indicated that he had realized that the written warning he received was inconsistent with his version of the facts, as it indicated that the injury was suffered after he had failed to comply with the instruction to clean up the glass rather than before. He expressed concern that he was being subjected to a frame-up intended to force him to leave his employment with the college.

Mr Innes did reply to the second letter on 2 June 1993: Exhibit 7. He indicated that the earlier letter had not come to his attention, a matter he confirmed in oral evidence: p. 134. He said the matter would be placed before the next meeting of the council, but expressed the view that it did not matter whether the first and second warnings were verbal or in writing. He also referred to the fact that there had been substantial complaints about the cleaning of the college, and that the warden was expected to make energetic efforts to ensure a good standards of productivity and quality of work were produced by the cleaning staff. On 18 June 1993 the plaintiff made a statement to the Workers' Compensation Board referring to the incident; again the thrust of his complaint is the accusation that the student's foot had been cut after he had been asked to clean up the glass, rather than before.

There is also the consideration that it seems to me that the psychiatric evidence about the plaintiff's condition and his personality is much more consistent with his having reacted to a perception of being wrongly accused of something for which he was not in fact to blame, rather than to being blamed for something that he knew was justified, because things had occurred as described by Mrs Shaw. The plaintiff has consistently said that there was some reference to a student having suffered an injury to the foot on the Monday afternoon when he was told to clean up the glass. Unless he is simply inventing that incident, the possibilities are either that he was told this or that there was some misunderstanding; something was said about for example, the possibility of a student injuring a foot on the broken glass, and he either misheard or misunderstood this as a statement that such an injury had already occurred. In those circumstances he would of course genuinely believe that he had been told that such an injury had occurred, but Mrs Shaw could have no recollection of that.

Both versions cannot be correct, and after careful consideration I think that the plaintiff's version is the more accurate. I think that it is likely that Mrs Shaw's recollection about when she was told about the injury to the student's foot has been confused by the fact that she was told in the morning by Mr Hance about the injury that had just been reported to him, and she therefore has, accurately, a recollection that on that morning she was told about an injury to a student's foot. I think it is clear that the glass was there the previous day, and it is quite possible in a place like this with a number of students walking around that more than one injury could have been suffered. I do not attribute any significance to the absence of any formal advice of injury to the College or documentation of an injury: p.116; any injury would have been quite minor, and if the student was barefoot she was partly to blame herself. Had Mrs Shaw been told the previous afternoon that there was an injury, I think what she would have done is what the plaintiff said she did do; find someone, and it happen to be him, to get the glass cleaned up. I find the account of the plaintiff's mopping glass off the stairs somewhat curious; if he had been discovered doing that, it seems odd that that was not referred to in the written warning, or the account given by Mr Fraser of what was drawn to his attention, since it strikes me as conduct which would in itself deserve some form of reprimand. I acknowledge that it is puzzling that Mrs Shaw gave this evidence if she is in truth simply mistaken about the matter, but I do not think that that is sufficient reason for preferring her evidence to that of the plaintiff. There was no suggestion that the plaintiff's psychiatric state would lead him to imagine or invent things that had not occurred; Dr Troup who has been treating him since the middle of 1993 said that he is a very honest fellow: p.295. It is also clear that he is very focussed on this incident, and obviously it was not of such importance to Mrs Shaw.

If the plaintiff was told about the injury to a student's foot when he was first told to clean up the glass, that injury must have occurred before any failure on his part to clean up that glass and therefore he can not be responsible for that injury. However, there was the complaint by a student to Mr Hance on the following morning. It is possible that that was a fresh complaint in respect of the old injury, although I think it more probable that it was a complaint about a recent second injury. Unless there had been further glass spread in this area after the plaintiff cleaned up the first lot, and the plaintiff did not suggest that in his evidence, the presence of glass in that area on the following morning must demonstrate that the plaintiff had not cleaned up all the broken glass the previous day. Indeed I did not understand the plaintiff's evidence to be to the effect that there was no glass there the following morning; rather he sought to play down its amount and significance: p. 111. The evidence of the plaintiff as to where the glass was (p. 107-8) is consistent with the evidence of Mr Hance as to where it was the next day (p.276), allowing for some cleaning up. If the student did cut her foot the following morning there is I think rather more justification in saying that that injury did occur because of a failure on the part of the plaintiff to clean up more thoroughly the previous day, and if there was a complaint of an injury to Mr Hance that morning, which was passed on to Mrs Shaw, she could thereafter reasonably conclude that a student had suffered an injury that morning because of the plaintiff's failure to comply thoroughly with her instruction on the previous day. On this basis therefore she was justified in stating in the written warning that the position of the college had been prejudiced, and that an injury had been suffered apparently because of the failure to clean up the glass the previous day.

The possibility of a second injury does not seemed to have occurred to the plaintiff, and the matter was never thoroughly investigated by anyone on behalf of the defendant, because its attitude was that the real point was that the plaintiff had failed to carry out the instruction to clean up the glass, not that the student had been injured, and once the plaintiff had accepted the redundancy package there was no longer any point in pursuing the matter. The plaintiff was therefore left with what was from his point of view a justified grievance, that it seemed that he was being blamed for an injury that could not have been his responsibility because it had occurred before he had been told to clean up the glass, when in fact there was a later injury, or what was thought to be a later injury, and the allegation was, from the point of view of the defendant, justified.

It does not matter whether Mrs Shaw was given the note by Mr Brosnan the previous afternoon, or simply told about the matter by a student or by someone else; she may well have been told by one of the cleaner's that a student had hurt her foot, and then given the note about the same incident the following morning. It is quite possible that a student who cut her foot would complain to one of the cleaners, and later drop off a note at the office. Mrs Shaw said (p.255) that she thought that the note was actually slipped under the office door. That would be consistent with the student's cutting her foot in the afternoon, complaining to one of the cleaners, going and writing a note and slipping it under the office door where it was found by Mr Brosnan the following morning and passed on to Mrs Shaw.

The position therefore is that the plaintiff has thought that he was being wrongly blamed for an injury to a student on the 29 March before he was asked to clean up the glass. I find that there was such an incident on that day, the plaintiff was told about it when he was first asked to clean up the glass, and that incident was on the evidence before me in no way attributable to him. However I find that there was either a further injury suffered on the morning of the 30th, or a further complaint of an injury on that morning which could reasonably lead the defendant's employees to conclude that an injury had been suffered on that morning, and that it was reasonable for Mrs Shaw and Mr Fraser to conclude that any injury suffered on the morning of the 30th occurred because the plaintiff had failed to clean up the glass properly on the previous afternoon. It was therefore not unreasonable to issue the written warning in Exhibit 8.

Other disciplinary issues

The plaintiff had previously been given a written warning about comments made to another employee about her losing her job because she would be replaced by student labour, something which apparently left her quite upset: p.229, Exhibit 3. It refers to the plaintiff having done this maliciously; Mrs Shaw that she regarded his action as malicious because she had earlier told him not to do it: p.247. According to Mrs Shaw the employee concerned was quite upset; I accept that that was the case, and in those circumstances I think that if the plaintiff's conduct had been repeated and resulted in the other employee becoming quite upset she was justified in issuing a formal warning to the plaintiff even if the plaintiff had not been acting out of a deliberate desire to cause distress, but had been making what was intended to be a light-hearted remark: p.34A. What matters in those circumstances is whether the other employee was really upset by his remarks; if she was then it was necessary and reasonable for the defendant to take appropriate steps to discourage the plaintiff from continuing such conduct, even if this merely meant bringing home to him the inappropriateness of such humour. It may well have been just misconceived humour on his part; there was evidence from a number of witnesses, including Mrs Shaw (p.224) that the plaintiff had a good sense of humour, and was a happy person: see also p.130, 153, 178.

Another incident which was the subject of a further warning, although it was subsequently withdrawn, was an occasion when the plaintiff had thrown a number of wooden shelves over a balcony. He said that he found these near a rubbish bin and proceeded on the basis that they were rubbish: p.37; Mr Hance who was attracted by the noise thought that it was obvious that it was good wood: p.275. Mr Fraser said that when he was told about the incident he thought it should have been obvious that the wood was college property and was useable: p.217-8. He regarded the plaintiff's action as akin to vandalism: p.201. Originally a warning was issued, but it was withdrawn after consideration about the procedures not being appropriate: p.202.

I am prepared to accept that the plaintiff honestly thought that the shelves were rubbish, but there was some safety consideration about disposing of them by throwing them over the balcony, even if that was a method used at times for other things (and even if Mr Pintaric was keeping a look out as the plaintiff said: p.37), and there was also the consideration that the plaintiff ought to have realized that there was at least a possibility that they were not rubbish, and should not have acted in a way which effectively destroyed them without making enquiries. Whether this was deliberate or simply thoughtlessness on the plaintiff's part, it was it seems to me inappropriate behaviour and the defendant did not act unreasonably in criticizing such conduct.

Other matters

The plaintiff also referred to some other occasions when he had problems with the administration of the college. There was evidence (p.31) about an occasion when the plaintiff suffered an injury at work when he was assisting Mr Pintaric to move a refrigerator from the top floor of the college, using a trolley which had been cut down (p.28, Exhibit 2) so that it was difficult for Mr Pintaric to use it to move a full size fridge: p.157. That was the subject of separate litigation which has been compromised (p.19), and its only relevance for present purposes is that it shows that the plaintiff was someone who had previously been in conflict with the defendant over health and safety at work considerations. In my opinion it is not otherwise relevant to the matters in issue in this action.

There was another occasion when the plaintiff complained that a rubbish compactor was unsafe, and after some investigation by an independent authority changes were made to it: p.54, p.156. This does illustrate the propensity for the plaintiff to stand up for what he believed was right, and in fact his stand proved to be justified on that occasion. I am not persuaded that any subsequence conduct on the part of any of the representatives of the defendant was prompted by resentment of this or a desire to punish him for his attitude.

The plaintiff also became concerned ultimately that he had been the victim of an attempt to force him out of his job so as to make room for Mrs Shaw's son to take over the position. He referred to the fact that the letter offering a “redundancy” to him indicated that Mr Fraser had made his position surplus to requirements, yet it was subsequently filled by Mr Shaw (p.50, p.163). I think in the circumstances the defendant was happy enough to respond positively to the suggestion from the plaintiff (p.50) that he would accept a redundancy package, as he did when it was offered, and that may have lead Mr Fraser to dress up the letter of offer a little; what actually seems to have happened is that the two general hand positions were reclassified as cleaning positions, but there was no actual reduction in the number of employees: p.202,212. One of the “new” cleaning positions was offered to Mr Pintaric and accepted by him (p. 167); the other was originally offered to Mr Lind, who was a cleaner at the college at the time, but he refused the job preferring to stay with his existing position: p. 194. It was only after that offer was made and refused that a similar offer was made to Mrs Shaw's son (who was also then working as a cleaner at the College), and accepted. I suppose it is possible that Mr Lind's preference would have been known to Mrs Shaw, but the possibility that the offer was made simply as a means of providing cover, in the expectation that it would be refused, seems at best unlikely. I think the offer to Mr Lind was genuine, and it demonstrates that the plaintiff was not got rid of in order to give Mrs Shaw's son a better job. In so far as the plaintiff was disposed to draw an inference of nepotism from these circumstances, I think that was quite unjustified, although it might have seemed more plausible to the plaintiff if he did not know of the making of the offer to Mr Lind. The suggestion of nepotism was investigated by Mr Innes, who rejected it empathically: p. 143. It does appear to me however that the plaintiff's unjustified concerns on this account were a significant factor contributing to the development of his psychiatric condition: p. 184, and see Exhibit 28 p.2.

On other issue which arose in the course of the trial was as to a mediation discussion in August 1993 with Mr Fraser and Mrs Shaw. It does not appear that that discussion resulted in anything useful by way of agreement: Exhibit 18. An issue arose as to whether evidence of what was said at that discussion was to be excluded on the grounds that it was said “without prejudice” and for the purpose of attempting a settlement. There is I think a strong presumption that anything said at the mediation is intended to be within the public interest privilege excluding from evidence statements made in an endeavour to settle a dispute. This applies whether or not the communications were expressly made “without prejudice”, the ultimate test being whether they were genuinely negotiations to comprise an existing dispute: Quad Consulting Pty Ltd v. David R Bleakley & Associates Pty Ltd (1990) 27 FCR 86 at 89. Nevertheless the use of the expression “without prejudice” is a convenient label indicating an intention to invoke the privilege. Mr Fraser thought that this expression had been used (p.218) but in any case his evidence at page 204 was that the intention of the meeting was to put the dispute on the table and to come to some agreement between the parties, so that it was a meeting which was within the scope of the priviledge. The only purpose for which it was sought to give this evidence was as an admission against the defendant, and the evidence is not available for that purpose, although it might have been available for other purposes had it been relevant to them: Harrington v. Lowe (1996) 70 ALJR 495 at 501. I think therefore that Mr Hoare's objection to this material should be sustained.

Applicable law

The law in relation to liability for psychiatric injury has always been much more limited and restrictive than the law in relation to liability of physical injury. It has been traditionally considered in the context of liability for “nervous shock”, because the area where it is most clearly established is in a situation where a person suffers psychiatric injuries as a result of fear of personal injury, or from witnessing accidental physical injury to another. In the leading Australian case a claim for nervous shock was allowed where the plaintiff had developed a psychiatric illness characterized by anxiety and depression because of what she saw and heard at the hospital to which her husband was admitted with serious injuries caused by the negligent driving of the defendant: Jaensch v. Coffey (1984) 155 CLR 549. In that case previous limitations of physical and temporal proximity were rejected, but some limitations were retained. It is clear that some element of proximity was required; mere foreseeability of harm was not regarded as sufficient.

The judgments also indicate that injury for nervous shock is not recoverable unless an ordinary person of normal fortitude in the position of the plaintiff would have suffered some shock. This was assumed without deciding by Gibbs CJ (p.556) but Brennan J at page 568 expressly approved such a limitation:

His Honour went on to note that persons of a particular class might be foreseen to have some heightened susceptibility, which would explain why such injury to parents or spouses is more readily foreseeable as a result of physical injury caused to another. Deane J at page 604 said that a duty will not arise unless the risk specifically of psychiatric injury was reasonably foreseeable, and went on to refer to another limitation on the ordinary test of reasonable foreseeability:

His Honour was inclined to see these elements as restrictions on the requisite proximity of relationship. At p.610 His Honour noted, apparently as a relevant consideration to the issue of foreseeability, that the plaintiff was found to be a person of normal fortitude. Dawson J also approved the notion that nervous shock must not only be reasonably foreseeable, it must also fall within bounds as a matter of policy: p.613.

The problem that the courts have had to grapple with is caused by the operation in this area of the so called “egg shell skull” rule, sometimes expressed by the statement that the defendant takes the plaintiff as he finds him. This has been recognised for some time as a matter of some difficulty in the area of psychiatric injury: see Mount Isa Mines Ltd v. Pusey (1970) 125 CLR 383 at 406 per Windeyer J. The approach normally adopted appears to be that, once some psychiatric injury is foreseeable for a “normal” or average person, the fact that a particular plaintiff's reaction is more severe because of some susceptibility is regarded as a matter going only to damages and not barring recovery.

That sort of limitation will work reasonably well when dealing with a psychiatric injury secondary to some other event or phenomenon which can be seen to be wrongful or harmful, as in the usual nervous shock case where there is actual physical injury to someone else or where the psychiatric injury is secondary to some physical injury. It is more difficult in a case where the psychiatric injury is said to have been caused by some act or omission of the defendant which not only did not cause any physical injury to anyone, but was of such a nature that it could not have caused such an injury. Whether the limitation referred to by Deane J, that it must have been sustained as a result of the death injury or peril of someone other than the defendant, represents a binding limitation, so far as I have been able to ascertain it represents an accurate descriptive classification of the reported cases in Australia. All the cases where the plaintiff has recovered would appear to fall within that class; cases where the plaintiff has alleged psychiatric injury as a result of conduct of the defendant which did not injure or imperil anyone appear all to have failed.

There are plenty of cases where a person who has suffered psychiatric injury secondary to some physical injury has recovered damages in relation to the psychiatric injury, and there are cases of post-traumatic stress disorder suffered in the course of employment: one example is State of Queensland v. Keeys (Appeal No.10233/96, Court of Appeal, 5.8.97, unreported), where the argument on appeal turned solely on the question of causation. In that case the plaintiff was shot at and almost injured by a sniper's bullet; the bullet passed through part of his uniform, but there was no physical injury. The sudden realization, a few minutes after it had occurred, that the bullet had come so close to injuring him caused the plaintiff to suffer a psychiatric illness in the form of post-traumatic stress disorder. On trial I approached the relevant duty simply as one to prevent injury from the actions of a sniper, where the breach of duty alleged was a failure to respond appropriately to a warning given to the defendant employer, and the matter proceeded essentially on the basis that if the defendant would have been liable if the plaintiff had suffered a physical injury by being shot it was liable for the psychiatric injury suffered through being shot at and missed. This aspect of the matter was not considered by the Court of Appeal.

There are however other cases where it has been held that the duty owed to an employee extends to a duty to avoid psychiatric injury, at least in circumstances where that results from peril to that or another employee. In Jaensch Deane J said at p.597 that Mount Isa Mines Ltd v. Pusey (1970) 125 CLR 383 may support a general proposition that an employer is liable for damages in respect of nervous shock sustained by an employee at his place of employment in circumstances where the employer has failed to take reasonable steps to avoid a reasonably foreseeable risk of injury in that form. I proceed on the basis that that proposition is correct, and that “injury in that form” means psychiatric injury.

The only report of an appellate decision I have been able to find in Australia dealing with a claim by an employee for psychiatric injury caused by the way he was treated by the employer, rather than by some identifiable shock, is Wodrow v. Commonwealth of Australia (1993) 45 FCR 52, Aust. Torts Reps. #81-260. In that case a public servant working in a particular section was having problems in that section and was transferred to another section with a view to reducing the stress he was suffering. However in the other section he behaved in an unsatisfactory way and was issued in the ordinary course with a threat of disciplinary action for failure to comply with a written directive. This prompted a stress related psychological reaction which rendered him unfit for work. His action succeeded at trial - (1991) 105 FLR 278 - on the ground that in view of the history of the plaintiff's behaviour psychological harm from the relevant minute was reasonably foreseeable, and issuing it constituted an unreasonable failure to take care for the safety of the plaintiff. On appeal however that finding was overturned and judgment entered for the defendant.

Two members of the Full Court (Gallop and Ryan JJ) said that an action for negligence could succeed notwithstanding that the harm suffered was purely psychological, and to determine whether there was a duty the question was whether harm to the plaintiff of the kind suffered had been reasonably foreseeable. Reference was made to the analysis of the “egg shell skull” rule in the judgment of Jordan CJ in Levi v. Colgate Palmolive Pty Ltd (1941) 41 SR (NSW) 48, who said that an abnormal physical condition may give rise to two classes of question:

His Honour answered the first question in the affirmative, and the second in the negative. Their Honours expressed the view that this discussion of the law applied equally to psychiatric abnormality. Their Honours, after referring to Mount Isa Mines Ltd v. Pusey (supra) at page 406 and Jaensch v. Coffey (supra) at page 568, concluded:

Their Honours referred to the evidence and continued:

That was enough to show that there was no duty owed to the plaintiff, but the court went on to consider the issues of causation and breach of duty. With regard to causation, the view was expressed that the cause of the subsequent reaction was the plaintiff's obsessional personality.

I have a little difficulty in reconciling that approach with the analysis of causation in the High Court in March v. Stramere (1991) 171 CLR 506. I thought that the effect of that decision was that causation could be satisfied by an event which merely triggered a deterioration of a pre-existing physical condition. A plaintiff may have significant arthritic degeneration of the spine which is asymptomatic but which could easily be made symptomatic by trauma. If the plaintiff suffers trauma through the negligence of the defendant, and that makes the spine symptomatic, I have regarded that as being a sufficient legal cause of the subsequent painful spine, even if the amount of trauma required to trigger the symptoms was not very great and there was a high probability that even apart from the accident in question something else would have made the spine symptomatic anyway in due course. This later consideration is a matter to be accommodated by making a discount in the damages because what has been lost is the chance of avoiding a symptomatic spine. It is not immediately obvious to me why the same approach would not apply to a negligent event which triggers a psychological reaction in a susceptible personality; there is causation in respect of the reaction, but the susceptibility to such a reaction would mean that a large deduction should be made when assessing the chance of avoiding such a reaction. Of course the underlying susceptible personality is not a compensible condition.

On the question of whether the defendant's conduct was reasonable, their Honours reviewed the evidence and concluded that “it was entirely reasonable to direct the plaintiff in plain words to comply with the instruction previously given in writing, and to warn him that failure to do so would amount to a breach of discipline. Any other course would impair the effective functioning of a service founded on discipline. The defendant had a responsibility (no doubt from the plaintiff's prospective a “conflicting responsibility” as mentioned by Mason CJ in the passage just cited [from Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47]) to maintain discipline and, when confronted with petulant, insubordinate behaviour by one of its officers, to do so by reminding the officer of his liability to disciplinary action.” Their Honours therefore found that on this basis also the plaintiff's case failed.

Although reference is made in that passage to a service founded on discipline, which is particularly appropriate to the public service, the ordinary relationship of employer and employee is one which is characterized by a capacity on the part of the employer to control the employee; indeed in cases where there is doubt as to the existence of that relationship the classic test, although not the only relevant consideration, is whether there is control or at least a capacity for control. In that sense therefore a capacity to enforce control by some means of discipline is a necessary element of any relationship of employer and employee. The existence of a duty of care to avoid harm to other employees by, where appropriate, limiting or restraining behaviour of a particular employee is merely an example of why this is important. In my opinion the approach adopted by their Honours is not specific to the public service, but is relevant to any relationship of employer and employee. Their Honours' point was that the existence of a duty of care to avoid psychiatric injury, even if one arises in the particular circumstances of the case, can not justify subverting reasonable procedures to maintain discipline where it is reasonable to activate them. That is put as the application of the ordinary rules for determining whether there has been a breach of an employer's duty; it seems to me however that it might also be justified as a public policy limitation on the scope of liability for psychiatric injury.

The third member of the court in Wodrow, Spender J, expressly agreed with the reasons of the majority, but added some short reasons of his own in which he expressed the view that there was no evidence that the defendant was on notice of what could occur to the plaintiff from a direct threat of disciplinary action, and that the nature of the employer's duty of care towards the plaintiff was not altered by the circumstance that he was “prone to regard every instruction as no more than an occasion to engage in rancorous disputation.” He was also of the view that there was no unreasonable conduct in issuing the relevant minutes.

I have also looked at Gillespie v. Commonwealth of Australia (1993) Aust. Torts Reps. # 81-217 and Miller v. The Royal Durwood Hospital Board of Management (1992) Aust. Torts Reps. # 81-175. In each case the plaintiff alleged that the defendant's treatment had resulted in psychiatric injury and that the defendant was liable in negligence as a consequence, and in each case the plaintiff failed; and neither is there any detailed discussion of principle.

I should mention two more recent cases, although both of them are more conventional cases of nervous shock. In Page v. Smith [1996] AC 155 the plaintiff was driving a car which was involved in a collision with the defendant due to the negligence of the defendant. The plaintiff suffered no physical injury but suffered an exacerbation of a pre-existing syndrome described in various ways including as chronic fatigue syndrome, and it was found that as a result he would be permanently unlikely to be able to engage in employment. The House of Lords by majority of three to two held that once it was established that the defendant was under a duty of care to avoid causing personal injury to the plaintiff it did not matter whether the injury in fact sustained was physical, psychiatric or both. Interestingly the dissenting Judges supported the position adopted by the High Court of Australia in Jaensch v. Coffey (supra). The leading judgment is that of Lord Lloyd of Berwick, who noted a distinction between spectators or bystanders, who were secondary victims of the defendant's negligence, and participants, persons within the range of foreseeable physical injury, who were the primary victims. Foreseeability of psychiatric injury was regarded as a critical ingredient when the plaintiff was a secondary victim; where the plaintiff was the primary victim it was not appropriate to draw a distinction between physical and psychiatric injury.

With regard to secondary victims, there were additional control mechanisms introduced as a matter of policy to limit the number of potential plaintiff's; foreseeability of injury by shock was not enough, there was also a requirement for a degree of proximity, in time and space, or relationship with a primary victim. In addition foreseeability of injury by shock to a person of normal fortitude was regarded as a control mechanism for a secondary victim. In the case of a primary victim however it was said that this requirement did not apply, because there was no difference between an egg shell skull and an egg shell personality. His Lordship did not advert to the distinction drawn by Jordan CJ in Levi (supra). His Lordship criticized and rejected the approach of Deane J in Jaensch v. Coffey (supra); he did not regard it as a correct view of the law.

The other members of the majority delivered short concurring judgments. Lord Ackner expressed some support for an alternative view that foreseeability of injury by nervous shock to a person of normal fortitude was in any event established in that case, as arising in circumstances where the respondent suddenly without warning drove across the path of the appellant thereby making inevitable what must have been a frightening collision. His Lordship regarded the risk of injury by nervous shock as clearly foreseeable. That is an issue on which I think the views of a jury would be interesting. Lord Browne-Wilkinson criticized the use of the term “nervous shock”, and referred to advances by medical science in the understanding of psychiatric illness, and its physical causes. He also referred to the “egg shell personality”.

This decision has been the subject of some thoughtful analysis in an article by Trindale in (1996) 112 LQR 22. It is also referred to in the judgment in the Court of Appeal in FAI General Insurance Co. Ltd v. Curtin (Appeal No.2078/96, 8.8.97, unreported). The Chief Justice at page 7, after referring to Wyong Shire Council v. Shirt (supra), Jaensch v. Coffey (supra) and Wodrow v. The Commonwealth (supra), without any disapproval, noted “The English approach appears to be different: see Page v. Smith.” However a number of passages from the decision were cited by Lee J, with apparent approval, and without any express recognition of the conflict between that decision and matters of principle laid down by the High Court.

Curtin was rather like Page v. Smith, in that it involved the plaintiff who could be characterized as a primary victim of the defendant's negligence, but whose injuries were essentially psychiatric; she also suffered a jarring and a scrape to the back of her knee, and damaged her motor vehicle, but did not claim in respect of either of these. The plaintiff had been driving along the Logan motorway when her engine stopped. As a result she appears to have lost control of the vehicle, which pulled to the right and came to a halt in a diagonal position substantially on the incorrect side of the road. It was dark, the headlights and taillights were on, she put on the hazard lights, and attempted without success to restart the engine. A passerby stopped, and with his assistance the plaintiff was attempting to move the car off the road when another vehicle approached fast. The plaintiff and the helper made a run for it, and the other vehicle collided with the car causing it to slide across the road towards the plaintiff. It came to a halt two feet from her legs, and caused her shock and extreme fear of personal injury or death. Shortly afterwards she fainted. She subsequently developed psychiatric problems, identified as post-traumatic stress disorder, chronic fatigue syndrome, and depression.

A number of issues arose, including the question of whether damage by way of nervous shock was reasonably foreseeable, and whether there was any relevant policy limitation on recovery for psychiatric injury. The plaintiff was close to her vehicle at the time of the collision, and it was said that personal injury of some kind was foreseeable. Lee J. said at page 35: “It is difficult to readily understand why there should be some limitation beyond those imposed by ordinary tort principles on the existence of a duty of care in the case of a “primary” victim, albeit a bystander who is narrowly missed by a negligent driver and who suffers a severe shock resulting from intense fear to his or her person and a consequential recognizable psychiatric illness, when a duty of care has readily been held to exist in the case of a secondary “victim” who is not under personal threat to his or her person and may not even observe the negligent conduct.” Reference was made to the question of proximity, and His Honour concluded that the plaintiff had established the relevant relationship of proximity. His Honour said it was difficult to see why a distinction should be drawn between physical and psychiatric injury, but in any case it ought to be reasonably foreseeable that a plaintiff who was narrowly missed as a result of negligent driving might suffer a severe shock and a consequential psychiatric illness. “Such a possibility is not speculative, fanciful or remote. An illness of this type would be “shock induced”, which satisfies the diagnostic criteria for post-traumatic disorder on which the plaintiff's claim is based.” A reference was made to some suggested limitations on recovery, and, on the question of whether a person of ordinary fortitude would regard a near miss as involving no more than a transient fright or alarm; he referred to the proposition that a negligent defendant takes the victim as he finds him, and that any previous disposition goes to damage rather the duty of care; again the distinction drawn by Jordan CJ in Levi (supra) was not referred to. The third member of the court, Fryberg J, agreed generally with Lee J on the questions of liability and contributory negligence, but said that he agreed with the Chief Justice on questions of causation and proximity.

Whether a person who is driving a motor vehicle in a manner which endangers the life and limb of persons foreseeably present on or about the highway might also be said to engender a foreseeable risk of psychiatric injury to anyone who is endangered but not physically injured probably really depends on the standard of foreseeability, and the question of how unlikely something has to become before it becomes not reasonably unforeseeable. The approach some Judges adopt to foreseeability seems to be that if something is possible then it is foreseeable, no matter how unlikely it may be to occur. It seems to me, with respect, that if the concept of foreseeability is to retain any meaning and content it must operate as some form of limitation; a test which is always met is not a test at all. There must be a category of events which, although possible, are sufficiently unlikely that they would not be thought of as within the range of possible consequences by an ordinary reasonable person contemplating the situation which prevailed at the relevant time, without the benefit of hindsight: Mount Isa Mines Ltd v. Pusey (supra) at p.398 per Windeyer J.

For the purposes of this case however I am not concerned with a situation where a person who is exposed to the risk of physical injury suffers only psychiatric injury, the situation discussed in Page v. Smith and FAI v. Curtin; I am concerned with a situation where the only relevant possibility is of psychiatric injury, and in those circumstances the question necessarily must be whether psychiatric injury was reasonably foreseeable. The only reference to Wodrow in FAI v. Curtin, in the judgment of the Chief Justice, is without expression of disapproval, and it is the only decision of an appellate court in Australia dealing with the matter which does arise in the present case. It is in my opinion highly persuasive and I should follow it. On the question of whether the test needs to be satisfied by reference to a consideration of the ordinary person, in the absence of knowledge of some special susceptibility on the part of a plaintiff, I consider that those issues are resolved in the way indicated in Wodrow by the decision of the High Court in Jaensch v. Coffey, by which I am bound. In the present case therefore the plaintiff must show, in order to establish that there was a duty to take reasonable care to avoid causing psychiatric injury to him, that either:

If a duty arises, that leaves the question of whether the duty was breached, and causation.

Psychiatric evidence

There was evidence both orally and in the form of reports from a psychiatrist, Dr Troup, who had been treating the plaintiff since June 1993. There was also evidence called by the defendant from Dr Varghese, who gave a report (Exhibit 28) - dated 22 July 1996, and gave oral evidence. Dr Troup said she thought the plaintiff's stress on presentation was directly related to the situation at work, and that as at 1 December 1994 the plaintiff had an adjustment disorder with features of depression and anxiety which rendered him unemployable: Exhibit 1. In oral evidence Dr Troup said that the plaintiff's depression had improved, although his preoccupation with the lack of justice that he perceived occurring had increased: p.289.

Dr Troup had written an earlier report to the Workers' Compensation Board on 20 July 1993 (Exhibit 29) which gave what proved to be an unduly optimistic prognosis, and on 22 September 1993 had written to the plaintiff's GP indicating that the plaintiff was now feeling well and that he had resolved the situation and was going to put the issue behind him: Exhibit 30. She explained this on the basis that she thought when she wrote that that she had persuaded him not to take legal action, a course which she had advocated because she thought it would make it harder to treat his condition: p.293. Dr Troup did not say, either in her reports or in any oral evidence, that either the plaintiff's condition or any psychiatric injury was reasonably foreseeable, or indeed possible, in a person of normal susceptibility in the circumstances confronting the plaintiff. She gave evidence that the plaintiff had an obsessive compulsive personality, particularly obsessiveness, with perhaps not much compulsiveness: p.294, and see p.291. She did not regard it as a personality disorder as such. She thought the plaintiff had been after June 1994 suffering an adjustment disorder, that is the development of emotional behaviour or behaviourial systems in response to identifiable stressors or stresses. The symptoms were clinically significant as evidenced by either marked distress, that is in excess of what would be expected from the exposure to a stressor, or significant impairment in social or occupational functioning. Her evidence does not support the proposition that psychiatric illness was reasonably foreseeable to a person of normal susceptibility in these circumstances; rather her evidence is that the plaintiff's reaction is a consequence of his obsessive personality, leading to an obsessive determination to clear his name: p.296.

Dr Varghese was of the opinion the plaintiff had suffered a major depressive illnes in the past, as a result of his having a rare cancer removed from the back of his head in January 1992 (p.25), but that it had improved although there was an exacerbation of symptoms associated with the difficulties at work in mid 1993. By the time he examined the plaintiff in mid 1996 he thought the plaintiff was not suffering from depression or any other mental illness, was not suffering from post-traumatic disorder, and there was no permanent partial impairment of his earning capacity: Exhibit 28. Dr Varghese also thought the plaintiff had an obsessional personality, and he was constantly pre-occupied with his sense of being wronged and wanting restitution: p.266. He thought that it was not unlikely that, as a result of this personality, the plaintiff could suffer depression if required to change the way he was working: p.267. He also said that someone with an obsessional personality can decompensate into depression with often very trivial stresses, and that a person who gets depressed can begin to experience the environment as stressful even though the environment is the same as it was before they were depressed: p.267. There was no evidence from him that any of the things that happened to the plaintiff might foreseeably, or could, cause psychiatric injury of some kind to a person of normal susceptibility: indeed the evidence that someone who has an obsessional personality can decompensate with very trivial stresses suggests that all sorts of things which would have no effect on a person of normal susceptibility could cause someone with the plaintiff's personality a severe reaction. That is I think evidence tending to show that psychiatric injury to a person of normal susceptibility was not reasonably foreseeable.

The psychiatrists were generally in agreement, at least about the matters which were of particular relevance. There was some argument about the effect of the condition of depression associated with the earlier cancer; I am prepared to accept the evidence of Dr Troup that by the middle of 1993 the plaintiff was not concerned about his cancer and was not depressed about it (p.291) but I do not think that that means that any depression experienced then or subsequently was necessarily independent from depression experienced previously because of the cancer. I prefer the evidence of Dr Varghese on this point, because it seems to me that a condition of depression could be developed because of concern about one matter, and could then continue, or be aggravated, by concern about a different matter. Overall Dr Varghese was more impressive as an expert witness, and I prefer his evidence where there is conflict.

In the absence of any psychiatric evidence as indicated in Wodrow (supra), the question becomes whether my own view, as a reasonable man, is that that effect was a reasonably foreseeable consequence of such events to a person of normal susceptibility. In my opinion the answer to that question is no. I am for the purposes of this exercise treating as foreseeable events that are unlikely to occur, unless they are so unlikely to occur that the idea of their occurring is far-fetched or fanciful.

In the light of the psychiatric evidence however the question becomes whether the defendant was aware that the plaintiff had the sort of personality which rendered him susceptible to this sort of reaction from relatively trivial stresses. This seems to turn on whether the defendant was aware, or knew facts which ought to have indicated, that the plaintiff had an obsessive personality. There was no evidence that anyone on behalf of the defendant was aware of any characteristic of the plaintiff's personality which rendered him particularly susceptible to having some significant psychiatric consequences triggered by relatively minor events. No one in any position of authority seemed to have been aware of the plaintiff's obsessive personality. They were aware that he did not respond well to supervision, particularly where that was seeking to change his work practices; see for example the letter by Mr Fraser Exhibit 19, which Mr Fraser stood by in his oral evidence: p.213. There is evidence that a person with the plaintiff's personality will react badly to any sort of supervision (p.269), but I do not think it follows that an employer is to be taken to infer the existence of an obsessive personality from a fact that a particular employee reacts badly to supervision. There are obviously many other reasons why that situation could arise. There was also evidence that an obsessive personality is characteristically a perfectionist, one who works hard and thoroughly, and does a job well, perhaps too thoroughly and too well: p.294. It is clear from all the evidence that that was not the impression which the people at Union College had of the plaintiff; they thought rather that he was not doing his job particularly efficiently or well or thoroughly; indeed their evidence of the way the plaintiff used to work does not sound at all like the sort of person described by the psychiatrists. Mrs Shaw said that when she first started to work at Union College, when she was not a supervisor of the plaintiff, she thought that he (and Mr Pintaric) just did their job, but they were not eager or industrious: p.223. She thought that when she came to be supervising the plaintiff that he went about his duties quite slowly and in the end the work was not done properly: p.224. When she watched the work there seemed to be a lot of messing around rather than doing the job: p.225. I do not think that the plaintiff has shown, or that the evidence reveals, that the defendant knew or ought to have known of any characteristic of the plaintiff's personality which rendered him particularly susceptible to psychiatric injury.

There was evidence that the defendant was aware that the plaintiff was acting as if under stress from time to time (Exhibit 19), although that was thought to be attributable to personal factors. Mrs Anderson, one of the defendant's employees working in the office, was aware that the plaintiff had been under stress but thought that this was attributable to problems with his family, and treatment for the cancer which had been found on his head; she could not recall being aware of the plaintiff suffering any stress because of his work: p.121. Mr Fraser said that as of November 1992 he had not received any indication that the plaintiff had suffered any stress: p.214. When asked whether the plaintiff had been affected by stress Mrs Shaw said that when suggestions were made about his working differently he became angry and argumentative: p.257. She did not ever observe anything which she took as an indication that he was under stress. I do not regard the evidence as showing that the defendant was aware of any particular susceptibility of the plaintiff to psychiatric injury.

It follows that in my opinion neither of the bases referred to earlier was there a reasonably foreseeable risk of psychiatric injury to the plaintiff. It follows that there was no duty to take reasonable care to avoid such injury, and the plaintiff's action therefore fails. I think however that I should go on to deal with the questions of whether, if there were a duty, the defendant's actions amounted to a breach of that duty, and the question of whether any such breach was a cause of the plaintiff's subsequent condition.

Breach of duty

In the light of a discussion in Wodrow (supra) this question turns largely on the issue of whether the defendant's conduct was reasonable in the circumstances, and whether, in so far as the defendant was seeking to give effect to legitimate objectives, it could have gone about it in a way which reduced the risk of psychiatric harm to the plaintiff. With regard to the allegations about the behaviour of Mrs Shaw in the way she supervised the plaintiff's work, for the reasons set out earlier in my opinion that was reasonable. An employer has to be able to change the way in which an employee is doing his work, even if the employee prefers not to make the change, and any active resistance to such change provides a reasonable justification for close and thorough supervision. As to whether the process should have been undertaken differently, I am satisfied in the light of the psychiatric evidence that it was not the manner of the supervision undertaken by Mrs Shaw but the fact that she was requiring the plaintiff to change what he did, and to work in a way which was more efficient, which was the real cause of the problem, rather than any failure to explain or occasional loss of temper. The plaintiff had previously had a good relationship with Mrs Shaw (p.27) and I am not persuaded that there was any vindictiveness or abuse by Mrs Shaw of her position. Although the plaintiff complained about some occasions when there was loss of temper, these seemed to have been exceptional and there was a speedy apology for them. It seems to me that Mrs Shaw was trying to work out some way in which the attitudes and requirements the plaintiff could be accommodated with a desire to operate the College more efficiently, and she was prepared to modify the work programs to achieve that. For example, when the plaintiff asked not to have to work on the roof because of the previous problems with cancer this was arranged: p.98. I think the defendant made reasonable efforts in this regard, and, assuming there was a duty I am not satisfied that anything in relation to the supervision amounted to a breach of that duty.

With regard to the disciplinary issues, in the light of the evidence I am satisfied that there was a failure on the part of the plaintiff adequately to clean up broken glass after he had been instructed to do so, and that there was subsequently a complaint from a student about cutting her foot (the complaint made to Mr Hance on the following morning) the making of which complaint could easily lead Mrs Shaw, and through her the defendant, to conclude that a student had cut her foot as a result of the failure of the plaintiff to clean up the glass. In my opinion therefore the defendant was acting reasonably in taking a step against the plaintiff under the disciplinary code. I think that even if this was a foreseeable cause of psychiatric harm to the plaintiff the defendant was justified in taking the step; this was an instance of a conflicting responsibility as discussed in Wodrow. I can not see how this could have been done in any way which would have significantly lessened the risk of some psychiatric consequences to this plaintiff.

With regard to the question of whether the defendant had in effect skipped a stage in the disciplinary code, by moving straight from the first (oral) warning to the first written warning, I think this is something that the plaintiff has seized upon as a basis for a complaint rather than a matter of any real substance. What is significant in terms of the disciplinary code is that there are to be a series of warnings before a person is actually dismissed. Whether the warning was oral or in writing seems to me to be of little significance, particularly in circumstances where the practice was that a written minute of the oral warning would be delivered: see Exhibit 3. There is I think no real difference between a written minute of an oral warning and a written warning. I do not think that there was any breach of duty in the fact that Exhibit 8 was expressed as a written warning rather than as a “second warning”, to adapt the terminology used in Exhibit 3.

With regard to the other disciplinary matters referred to earlier, for the reasons expressed earlier in my opinion some disciplinary action was justified, and I am satisfied that the action taken was reasonable. I do not consider that in either case the matter could or should be handled differently because it concerned to avoid foreseeable risk of psychiatric injury; this is also a case of conflicting responsibilities.

With regard to causation, the evidence indicates that the most important single factor in the development of the plaintiff's condition was his perception that he had been wrongly blamed for the cut foot incident. I think that was a cause of his psychiatric condition, with another cause being his opinion that he had been the victim of a plot by Mrs Shaw to get him out of the College to create a vacancy for her son. That was a cause which only arose sometime after he stopped work, and after he took the redundancy offered to him, but I think it played an important part in the subsequent development of his psychiatric condition. In terms of the events that caused him to stop work, I think that the effect of the cut foot incident was of considerable importance at this time; it is referred to in a letter he wrote the following day, Exhibit 15. I think it was the effect of this, which was not really an isolated incident but something which the plaintiff kept pursuing and became more and more concerned about, which was of greater importance in the development of his “nerves” than any particular changes in the work that was required of him in the last work sheet Exhibit 10. I think that it was the cut foot incident which prompted the reoccurrence of the plaintiff's depression, and as indicted by Dr Varghese this made him experience the environment at work as more stressful even though it had not in fact become any worse. The general process being adopted by Mrs Shaw of close supervision and attempting to rearrange the plaintiff's work and get him to work more efficiently and effectively no doubt was a contributing cause to the plaintiff's condition, but I do not think that there was anything in particular done by Mrs Shaw in the period leading up to 15 June which was a specific cause of the condition. On the (hypothetical) basis that one or more of these identified factors did amount to a breach of duty, I am satisfied that it was a cause of the plaintiff's subsequent psychiatric problems, which I think were correctly identified by Dr Varghese as an exacerbation of his previous depression.

Quantum

I have referred to the psychiatric evidence earlier. I accept that for a period from June 1993 the plaintiff was suffering from an aggravation of his depression, but that by mid 1996 the plaintiff was no longer suffering from depression or other mental illness, although he remained preoccupied with what he perceived as a lack of justice in relation to his case. This seems to have had two elements: clearing his name from what he perceived as an unjustified assertion that he had been responsible for a student cutting her foot, and achieving reinstatement. There was evidence from time to time to the effect that the plaintiff has, probably since the time he found out that what he saw as his former position had been filled by Mrs Shaw's son, being trying to get reinstated in that position: p.74. At one stage he said that what he hoped to achieve from the present action was reinstatement (p.97) but that was quite unrealistic. I do not think that these manifestations of the plaintiff's obsessive personality are compensable; he had that personality before any events relevant to this trial occurred, and all that is compensable is psychiatric illness triggered by relevant events. I think that by three years at the outside after he ceased work for the defendant, and probably more like two years, the plaintiff's psychiatric illness had abated to the point where it was not causing significant problems.

Prior to that time it had some influence on the plaintiff's life. He had become impatient and upset, and more difficult for his family to live with (p.181) and had been showing distress at home, becoming irritable with his family: p.154. He complained of headaches, and neck and back pain (p.62, 181) for which he took a lot of pain killers. He has been on medication prescribed by Dr Troup, although there was no detailed cost of this proved in evidence.

I assess damages for pain and suffering and loss of amenities at the sum of $7,500, all of which is attributable to past loss. It seems to me that the psychiatric injury suffered by this plaintiff is not as severe or as lasting as that suffered by Mr Keeys, in the matter referred to earlier, where the equivalent award was $15,000.

The plaintiff said that he had been unable to work since June 1993 because of this condition (p.61), and referred to the affect of medication on him, but the evidence of Dr Troup did not provide any support for the proposition that most of the medication taken by the plaintiff would have adversely affected his capacity to work. Dr Troup said that his psychiatric illness was not now preventing him from working in some other job, and had not done so since September 1993; the only thing that has kept him from finding other employment since then was his continuing dispute with the defendant: p.300. I accept this evidence. The plaintiff was earning $374 nett per week from the defendant (p.54) and if this amount of loss is allowed for a period of fourteen weeks (from when he left work until the date of Exhibit 30) and it comes to $5,236. In view of the short period involved no discount for contingencies is appropriate. There are two other factors, the receipt of a redundancy payment of eight weeks pay (Exhibit 11) and the fact that the plaintiff was thrown onto the labour market, and would have taken some time to find a job after becoming fit to work. I think these two factors cancel each other out. I would allow interest at 10% per annum for four years, a total of $2,094.40, and interest on the pain and suffering and loss of amenities at 4% per annum for three years, an amount of $900. That is not the usual calculation, but it is the calculation appropriate where the general damages have effectively ceased some time prior to trial. The only evidence of special damages was in Exhibit 31, which showed that $122.40 had been paid by the Workers' Compensation Board, and a Fox v. Wood component of $270. The total assessment inclusive of interest is therefore $16,122.80, from which must be deducted workers' compensation payments of $1,842.20 (Exhibit 31) leaving a balance of $14,280.60 inclusive of interest in the sum of $2,994.40

In view of my conclusions about liability however there will be judgment in the action for the defendant with costs.