Hodges v Queensland[2006] QDC 382

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff Katherine Hodges claims damages for negligence against her former employer the Maryborough Hospital. The essence of the plaintiff’s case is encapsulated in paragraph 5 of the further amended statement of claim filed by leave during the hearing:

“During the course of the Plaintiff’s employment with the Defendant, during the period November 2000 to the end of February 2001, the Plaintiff was required by the Defendant to carry out her work in an environment of sexual harassment and intimidation by the Defendant’s servant or agent, Graeme Edwards, as a result of which the Plaintiff sustained personal injuries, other loss and damage.”

2. [2]
   Mrs Hodges claims that the hospital failed to provide her with a safe working environment and as a result of the sexual harassment of her by Edwards at work during this period she suffered a discrete psychiatric illness which has interfered with her enjoyment of life and lead to loss of income both past and future.

3. [3]
   Mr Reid in his final submission both written and oral on behalf of Mrs Hodges concentrated on an alleged meeting between the plaintiff’s husband and Wayne Raguse a relieving supervisor in late December / early January 2001 in which it is said that Raguse was told of at least one incident of sexual harassment and did nothing about it; and on the failure of the hospital to have systems in place which would inform employees of what to do and who to talk to if sexually harassed at work. It is not the plaintiff’s case that the hospital is vicariously liable for the actions of its employee Edwards.

Background Circumstances

4. [4]
   Katherine Hodges worked for the Maryborough Base Hospital as a cleaner for many years commencing in 1990. She was born on 25.03.68 and is married to Ricki Hodges. Her son Jack was born in 1998; she then took maternity leave for a year and then returned to work part time until November 2000 when she returned to work full time. Her duties involved the cleaning of the Dental Clinic on the hospital grounds.

5. [5]
   When she returned to work full time she became friendly with Janine Harris who was temporarily assigned to Operational Services at the Base Hospital from the Wide Bay Linen Service which supplies linen to the hospital. Operational Services was responsible among other things for cleaning services at the hospital.

6. [6]
   At around the time she returned to work, she also met Graeme Edwards who was also on secondment from the Linen Service. He appeared to her to be friends with Janine Harris. She became friends with Edwards as well and learnt from him that he had punched a fellow employee of the Linen Service and had been assigned to Operational Services as an outside cleaner while the Hospital decided what disciplinary action if any should be taken.

7. [7]
   She observed a number of incidents involving Edwards and Harris which are disputed by Harris who gave evidence for the defendant. She says she saw Edwards “mucking around” with Harris and trying to kiss her and talking dirty, and persisting despite Harris’ objections.

8. [8]
   She had no problems herself with Edwards until, I infer, around Christmas 2000. She said that he would visit her at her work place for “a chat” for a minute or two up to an hour, and told her about the assault incident, his girlfriend, ex-wife and children and industrial accident he had suffered. She felt sorry for him at first.

9. [9]
   She says that things changed around this time when he started to tell her dirty jokes, and to talk about sex and to touch her on the hand and back. He asked her questions such as “have you ever had an affair behind your husband’s back” and “I’m good in bed”.  She told me that she found his behaviour annoying and distressing.

10. [10]
    Matters escalated until an incident in the cleaners room in which Edwards had touched her on her arm and said words to the effect “what would you say if I asked for a fuck in the cupboard” to which she responded “I would kick you in the nuts” which made him laugh.  The incident upset her so she told her husband that night.  She has difficulty with dates around this time but her husband says it was late December / early January when he was told.  Her husband became very angry.

11. [11]
    Ricki decided to talk to Wayne Raguse about the incident. I infer that he did not say anything to his wife in advance of his meeting with Raguse, but he did tell her afterwards. He says he knew Raguse well and knew that he regularly drank at certain times at the Rovers Leagues Club, and he knew that Raguse was a supervisor with Operational Services and also the AWU representative at the hospital. Raguse has only a vague recollection of this first meeting and the defendant contests Mr Hodges recollection of what was said and I will return to it later in these reasons.

12. [12]
    Mrs Hodges told me that Edwards continued to visit her in her work area, and he continued to speak inappropriately, talking about dildos and vibrators in the context of making sexual references to her. She told him to get lost and go away but it appeared to be a game to him. It upset her but she did not tell her husband because she was scared that he would get angry and assault Edwards. She did not report it to anyone at the hospital because she says she didn’t know who to report it to. She told me that she had never had any instruction about how to deal with sexual harassment; nor had she seen notices and other documents dealing with the issue posted around the office as alleged by the defendant. She said that if there was someone who was available, particularly a counsellor, then she would have reported it to that person.

13. [13]
    On 20 February 2001, an incident occurred which ultimately lead to Mrs Hodges complaining to her supervisors Mr Sullivan and Ms Sutcliffe on 22 February 2001.

14. [14]
    At around 20 to 7 that morning, she was working at the clinic and had just completed mopping when Edwards arrived and enquired about seeing a dentist at the clinic. She told him to write his name on a list on the door and to return at 20 to 8 when there would be someone there to help him. As she said this, she looked at her watch which was a nurses watch attached to her dress just above her left breast. She says he then grabbed her breast and squeezed it twice which shocked her. She pushed his hand away, and said something like “do you mind?” and he walked away.  She says she felt shocked, dumbfounded and scared.

15. [15]
    Again she said nothing to anyone until another incident on 22 February 2001 which was a Thursday. She says she saw a male cleaner cleaning toilets without using gloves. She contacted her supervisor Barbara Sutcliffe and made an appointment to see her and to complain. She arrived at the meeting with Ms Sutcliffe and the Operational Services Manager Mr Peter Sullivan was also present.

16. [16]
    There is much agreement about what was then said, although there is also some significant dispute. Both Mr Sullivan and Ms Sutcliffe made extensive notes immediately after the meeting. Mrs Hodges did not make any diary notes until much later after she had consulted a solicitor named York from Sciaccas which was probably towards the end of March.

17. [17]
    Mrs Hodges complained about the male cleaner who she identified as Michael Smith. Ms Sutcliffe pointed out that Smith was on a rostered day off and it could not have been him but that another male cleaner had been there that morning. Ms Sutcliffe notes record that:

“Kathy said well I thought it was Michael and anyway there are others who come down there and bother her – we (Peter and I) asked who – Kathy said Graeme.”

18. [18]
    Ms Sutcliffe then records her complaint about the sexual assault and the incident about the cupboard.

19. [19]
    Mr Sullivan’s notes record:

“She then made general comments about a number of male staff visiting the area on various pretexts and said that this meant she could (I am satisfied that he meant “could not”) work the area on her own without interference.  She further stated that she was sick of males annoying her and when pressed said that recently Graeme Edwards had actually “grabbed her boob”.  Both Barbara and I expressed our concern that this should not have happened and said that this was a serious assault that should be followed up.”

20. [20]
    Both of these people gave evidence on behalf of the defendant. Mr Sullivan is now retired and Ms Sutcliffe still works at Maryborough Base. Both relied on the notes for accuracy, and both confirmed that the notes reflected accurately what was said.

21. [21]
    The plaintiff’s recollection of this part of the conversation differs in one significant respect. She says that she said to them “I wish you could stop all the men coming down and annoying me”.  In her notes she records that she said something similar to which Barbara Sutcliffe replied “I bet I know who else has been going down there – Graeme”, to which she replied yes and then proceeded with details of what had occurred.

22. [22]
    Both Mr Sullivan and Ms Sutcliffe denied that Ms Sutcliffe had said this, and I prefer their evidence on this point. There is no basis for me to hold that they have each omitted this statement from their notes which were made soon after the conversation and at a time when no-one could reasonably have expected that the conversation would be the subject of evidence in a court of law. The plaintiff’s own notes were recorded later, after a large number of conversations and meetings and I find that she is mistaken in her recollection. Ms Sutcliffe was aware of Edwards’ situation, in the sense that she knew prior to this day that he had been transferred to the hospital because of the assault incident at Wide Bay Linen. She also knew as a supervisor that although Edwards was an outside cleaner, at times she saw him inside and on occasions she saw him talking to the plaintiff. She saw nothing to suggest inappropriate behaviour and it is common ground that the plaintiff never complained to anyone at the hospital prior to 22 February.

23. [23]
    At around 4pm on that day she told her husband Ricki of the assault incident and he became very angry and threatened to rip Edwards’ head off. Her notes are to this effect:

“When I got home that afternoon I sat down and told my husband.  I didn’t want to because I knew how he would react.  Well he was very, very angry at Graeme.  Then my neighbour came up and I told her.  After she left, Ricki just kept on and on about it.  We went late into the night.  I was sick in the guts, had a massive headache and I just couldn’t continue talking and arguing with Ricki.  He wanted me to report him, I wanted to, but didn’t want all the stress and “shit” that goes with it.”

24. [24]
    I am satisfied that on the 22^nd both Mr Sullivan and Ms Sutcliffe wanted the plaintiff to formalize the claim by putting it in writing.  Mr Sullivan explained that without a written complaint; particularly given the other disciplinary matter still hanging over Edwards; the hospital would be in a difficult position investigating particularly if Mrs Hodges decided subsequently not to purse the oral complaint.  I am satisfied that the plaintiff was very reluctant to take that step because she was concerned about being responsible for Edwards losing his job.  I am satisfied that she told Mr Sullivan and Ms Sutcliffe that Ricki had previously seen Wayne Raguse and asked him to pass on a threat to keep away from his wife or he would “punch his head in”, and that he (the husband) had threatened to come up to the hospital to see Edwards and sort it out, and that both of them advised strongly against that course.  Mr Sullivan’s notes do not mention Raguse but Ms Sutcliffe’s do, and I am satisfied his name was mentioned by the plaintiff in this context.  It was suggested to both Mr Sullivan and Ms Sutcliffe that they inappropriately pressured Mrs Hodges to make a complaint in writing and that this added to her stress.  I find that they were insistent that she put the complaint in writing and that there were reasons for so doing which were both reasonable and appropriate.

25. [25]
    It is common ground that the plaintiff was told to think about her options and the meeting ended.

26. [26]
    A number of things occurred the next day. Mrs Hodges spoke to Ms Sutcliffe in the afternoon at a farewell for one of the cleaners, and I am satisfied that she again told Ms Sutcliffe that she was still unsure, and repeated that her husband Rick had threatened again to come up to the hospital to see Edwards. Ms Sutcliffe has recorded in her notes that she advised against such a course, and that the plaintiff told her that she had told her husband not to spoil the farewell. I accept that this was said, and it is consistent with the plaintiff’s own evidence of the nature of her conversations with her husband the previous day.

27. [27]
    Ricki did meet with Wayne Raguse on the 23^rd and given the importance of the earlier alleged contact to the plaintiff’s case I will deal with the relevant evidence as a separate category.

What was Raguse told by the husband?

28. [28]
    As I have said, I am satisfied that there was an earlier meeting between the husband and Raguse after the cupboard incident. Mr Raguse has little or no recall of this, so the issue really becomes an assessment of the husband’s evidence of what he says occurred.

29. [29]
    Mr Hodges made no notes of the conversation. On 23^rd February, Mr Raguse was a relieving supervisor working at Hervey Bay.  Although he did relieve at Maryborough from time to time and supervise the plaintiff on the 23 February he was definitely at Hervey Bay at that time and he explained that he would relieve in batches of up to 15-18 weeks.  He was in the habit of dropping in to Rovers on his way home from work at Hervey Bay.  The plaintiff does not suggest that Raguse was her supervisor at the time of the first meeting.  He was always a relieving supervisor but his primary role was as a cleaner and union representative.  Mr Hodges says that both meetings were in the lunch hour, and although as Mr Reid said it is not really significant, I think it is more probable than not that the contacts occurred after work.  I find that it is more probable than not that the reason that Mr Hodges approached Mr Raguse was because he knew him from the club, and that he was the union representative and probably saw him as the right person to pass on his threat to Edwards.  Mr Raguse was described as a “knockabout” sort of fellow, but it was clear that he knew Mr Hodges well from the club and that Ricki had played for the club in the past.

30. [30]
    Mr Hodges says he approached Raguse because, among other things, he was a supervisor. I do not accept this for reasons expressed above. He says that he told Raguse on the first occasion about the cupboard incident and told him to report it, to which Raguse responded by laughing and saying “boys will be boys”.  Mr Hodges then said he told Raguse to tell Edward that if he said any more to his wife he would be “pushing up daisies”.

31. [31]
    There are a number of reasons why I doubt that he told Raguse to report it, or that Raguse in effect made fun of the complaint in those terms. Firstly in the plaintiff’s notes (made some time in 2001, probably in March), she notes “Ricki (my husband) then (that is after she told him of the cupboard incident) approached Wayne Raguse … at Rovers and told him what was going on and told him to pass a message on to Graeme that “if he didn’t leave me along he would be pushing up daisies!” This happened in January 2001.  Ricki said he told Wayne in front of the bar crowd.”

32. [32]
    I think it is more probable than not that the plaintiff’s reluctance to proceed against Edwards even after the assault on 22 February 2001 subsisted at the time that she first told Ricki about the earlier incident. I think it is probable that Ricki well knew that his wife was reluctant to report it; that this aggrieved him greatly, and that his purpose in seeing Raguse on the first occasion was to ensure that Edwards got the message to stay away from his wife, and had nothing to do with reporting it to the hospital.

33. [33]
    It is common ground that Ricki did see Raguse on the afternoon of the 23^rd.  Mr Hodges said that he was pretty angry after, as he put it, his wife “came clean with him” on the 22^nd and told him about the breast squeezing incident and the other things that Edwards had said since she last talked to him about Edwards. He says that on the Friday he approached Raguse and angrily told him about the assault and said that Edwards would be dead if he kept going.  He says that Raguse didn’t say much at all.  Raguse, who also made no notes, recalls being approached by Ricki at Rovers after he’d ceased work that Friday afternoon and asked him if he knew Edwards to which Raguse replied he did.  Raguse recalls that Ricki went on to say that Edwards had touched his wife and anyone who did that was a dead man.  Raguse recalls asking what did he do, and he can recall Mr Hodges saying he touched her breast.  He recalls asking the husband if his wife had lodged a complaint to her supervisor on duty, and was told by Ricki that he wasn’t sure, but he thought she’d put a complaint in.  Mr Raguse (reasonably in my view) noted that he wasn’t sure, I infer because of the passage of time.  At this time he was a relieving supervisor at Hervey Bay.  He acknowledges that at times over many years he had supervised the plaintiff at the Base Hospital but I think it is more probable than not that he was not her supervisor in the December -February 2001 period.

34. [34]
    Mr Raguse rang Ms Sutcliffe the next day (the Saturday) to report this contact and Ms Sutcliffe took notes of what Raguse reported soon after the conversation with him. For this reason, I am satisfied that although she records only what Raguse told her, her notes are the most accurate record of what did occur. I set out her note in full

“Wayne Raguse rang me concerning the conversations that had occurred between Peter, Kathy and myself.  Wayne said that Rick had come to see him Friday 23/2 (while we were at the A/Tea) and said that if nothing was done about Graeme that he was going to go after him – as Kathy had been to see Peter and myself and we were doing nothing about the whole affair.  I told Wayne that this was rubbish and all Kathy was asked to do was put everything in writing, something Kathy was not prepared to do at this time - and Peter also told Kathy that he would take it to HR’s so the next step could be carried out.  Wayne said he wasn’t told all this - and Kathy only reported to us Thursday and some of these things happened months ago.  Wayne said he probably upset Rick a bit by telling him would probably come off second best if he tried to take on Graeme and was best to stay away from him”.

35. [35]
    In so far as her note conflicts with the evidence of the husband as to what was said at this meeting, I prefer her notes. Her note also supports my finding to the effect that I prefer Raguse’s evidence to that of the husband on what occurred at that meeting. Clearly with the passage of time and without notes, Mr Raguse has forgotten some of the things that were said. The note also suggests that Mr Hodges knew (as he must have) that his wife had raised the matter the day before; and it is clear that even at this early stage at least Mr Hodges was blaming Mr Sullivan and Ms Sutcliffe for “doing nothing”; which in the circumstances was completely unjustified. Mr Hoare makes a telling point in his final submission, and that is, it is most unlikely that if (as Mr Hodges says) Raguse had just laughed it off on the earlier occasion, why would he go to him again and not to one of her actual supervisors at that time, unless the earlier contact was not as Mr Hodges recalled and Raguse was his contact of choice for the reasons earlier stated. It may be that at the earlier time, Raguse also warned Mr Hodges not to approach Edwards and that may be the source of Hodges’ view that Raguse did not take it seriously.

36. [36]
    I disagree with Mr Reed when he submits that Mr Raguse was not a reliable witness. He appeared to me to be forthright, with no axe to grind, and he is now retired so he’s not beholden to the defendant. His recollection of what was said on the 23^rd February is supported more by Ms Sutcliffe’s note and his recollection of the husband’s attitude is consistent with my earlier findings.

37. [37]
    In cross-examination, the plaintiff refers to another alleged conversation between herself and Raguse outside the Friendlies Chemist in Maryborough in which she says she mentioned Edwards and Raguse brushed it off saying “boys will be boys”. This contact is not pleaded; and the plaintiff was not able to say when it occurred. Mr Raguse recalled that there was a conversation between himself and the Hodges outside the Friendlies Chemist but that this occurred well after the complaint had been made in February 2001. He recalls asking them if everything had settled down, but that is all he recalls. I am satisfied that this conversation occurred after the 22 February and, as I have noted, it is not referred to in the Amended Statement of Claim.

The Actions of Mr Sullivan/Ms Sutcliffe and other Hospital staff

38. [38]
    Rather than “do nothing” as the note records, in fact Mr Sullivan had contacted HR at the hospital, despite the complaint not then being in writing, and had obtained the name of a lady at Hervey Bay who was one of the people listed to contact in cases of harassment in the work place, and he passed on this lady’s number to the plaintiff. This lady spoke to the plaintiff and organized for her to see Angie Liesengang who was at the Base hospital.

39. [39]
    The plaintiff did see Angie Liesengang who told her it was her first case of sexual harassment and she had to consult a manual to see what to do. Ms Sutcliffe also said it was the first case of sexual harassment that she had encountered in the work place. Ms Liesengang was a Workplace Equity Harrassment Officer (known as a WEHO).

40. [40]
    I am satisfied that over the weekend the plaintiff and her husband had argued about the issue; the plaintiff not certain as to whether or not she should proceed and her husband angry and insistent that she do. I am satisfied that this caused the plaintiff so much stress that she rang Ms Sutcliffe on Monday 26^th to say she would not be in as she had a headache.  Ms Sutcliffe’s contemporaneous note puts it this way: (she records that Kathy rang and)

“ …she and Ricki had been arguing all weekend about what she had told him and Ricki said that if she doesn’t do something about it, it means that there is something going on between her and Graeme.”

41. [41]
    I find that on Ms Sutcliffe’s suggestion the plaintiff came in to see Mr Sullivan and his note is that she came to his office with Miss Liesengang at around 1:15 on that afternoon. There is a lengthy note of what was said as part of document 52 in Exhibit 1. The plaintiff told Mr Sullivan that she had decided to proceed with the complaint. Ms Sutcliffe joined the group at some point, and the plaintiff repeated her allegations and gave more detail. The note records that Mr Sullivan told the plaintiff that what was alleged was a serious breach of the Code of Practice, and that she should not feel responsible for any consequences that may follow to Edwards employment which if established would follow as a result of his conduct not hers. He also explained to her that in effect Edwards was entitled to be heard before any action could be taken.

42. [42]
    Mr Sullivan was then the Operational Services Manager. Ms Sutcliffe answered to him and she was the plaintiff’s immediate supervisor. Ms Sutcliffe had stressed in her meetings with the plaintiff that their discussions were confidential, subject to the allegations being put to Edwards in due course.

43. [43]
    Mr Raguse was not questioned about whether he contacted Edwards as the husband had requested in their meeting on the previous Friday. Edwards approached Ms Sutcliffe on the Monday afternoon expressing anger over the rumours circulating and she took him around to see Mr Sullivan who recorded a note of the conversation which took place in his office around 2:15. Edwards told Sullivan that Raguse had indeed contacted him and told him of the husband’s threats; he’d also heard that the plaintiff was going to the police. Mr Sullivan then put the allegations to him which he denied apart from admitting that some of his conversations with the plaintiff were “risqué”. He was told by Sullivan that there would be a full investigation and advised him to stay away from the plaintiff. At the earlier conversation with the plaintiff he records that “she should be assured that (Sullivan) would not allow (Edwards) to come into contact with her”.

44. [44]
    Mrs Hodges put her complaint in writing the next day in a letter addressed to Mr Sullivan and dated 27^th February 2001 (Doc 64 in Exhibit 2), she concludes:

“I haven’t reported it before now as I thought I could deal with it myself, but it is getting worse and now it has become physical”.

45. [45]
    I am satisfied that Edwards was informed of the allegations in a letter written the same day by the District Manager. It is clear from the particulars of the sender on p1 of the letter that it was prepared on that date, and the date of the 23.02.01 on the second page is clearly an error.

46. [46]
    The letter advised Edwards that he was suspended from duty until further notice on full pay pending an investigation. Mr Sullivan had no part in the drafting of that letter and no part in the decision to suspend Edwards on full pay. He was however given the job of hand-delivering the letter to Edwards, so from around 8:30am on 28.02.01 when Mr Sullivan’s notes record his conversation with Edwards at which time he delivered the letter Edwards was not on the hospital premises and not able therefore to further harass the plaintiff.

47. [47]
    Document 62 in Exhibit 1 is a letter to Edwards in fact dated 23.02.01 dealing with the District Manager’s determination of the disciplinary matter involving the assault on a fellow employee by Edwards finding him guilty of misconduct and giving him 7 days to make submissions on the appropriate penalty which included “serious deliberation to dismissal” (sic). By letter date 08.03.01 Edwards was advised that he was dismissed from employment because of the assault incident.

48. [48]
    I infer that those within Queensland Health responsible for making such decisions, decided to dismiss Edwards without further investigating the complainants claim. It is this decision, and in particular a letter to the plaintiff dated 26.03.01 which I find particularly distressed her.

49. [49]
    The plaintiffs own notes record that she was aware on 27.02.01 that Mr Sullivan had made it clear that Edwards was not to come anywhere near her “and they put him up in the Medical Ward”, and on 28.02.01 she became aware that Edwards would probably be sacked because of the assault matter. She became aware that day from Mr Sullivan that Edwards had been suspended on full pay.

50. [50]
    The letter to her to inform her that Edwards had been dismissed but not as a response to her allegation is Document 66 in Exhibit 1. It is under the hand of Kaye Hitchcox who did not give evidence in the proceedings. It is clear from what the plaintiff now says and her reply to the letter on 01.05.01 (Document 68, Exhibit1) that this letter made her very angry. The letter refers to a meeting involving the plaintiff, Mr Sullivan, a Barb Davis (who was the contact person for the letters to Edwards), and Ms Leisengang on the 27.02.01. Mr Sullivan does not recall the meeting and there are no notes in his running sheet, although the plaintiff does refer to such a meeting in her notes. There were very few questions directed to this issue, probably for the reason that it is not part of the plaintiffs case as pleaded but certainly in the plaintiff’s mind it contained a number of inaccuracies. There is certainly nothing in the recorded notes of Mr Sullivan and Ms Sutcliffe to suggest that the plaintiff had expressed satisfaction of her complaint by Edwards dismissal, or that she had refused the offer of Employee Assistance Scheme which I take to be code for counselling.

51. [51]
    She was never offered counselling prior to Edwards dismissal apart from the reference to Ms Leisengang who is not a counsellor. By the 28.02.01 she was seeing her own Doctor (Dr Cooper) who saw her a number of times and referred her to the MHU on 26.03.01 for counselling.

52. [52]
    I find that the hospital authorities did not pursue the investigation of the plaintiffs allegations for the simple reason that Edwards was no longer an employee as from 08.03.01 and therefore obviously no longer subject to disciplinary action by the hospital. It was obliged to determine the early disciplinary matter which was on foot at the time Edwards commenced to misbehave towards the plaintiff; and Mr Reid does not suggest that a reasonable employer in these circumstances should have put the earlier matter on hold and proceeded to determine the complaint based on the plaintiff’s allegations which was likely to take time in view of his denials.

53. [53]
    There is no doubt that from February Mrs Hodges was under a great deal of personal strain and the uncontested evidence is that she developed a discrete psychiatric illness which I will return to later in relation to the issue of damages. She took a lot of time off work over the ensuing years as evidenced in Exhibit 8, a schedule of economic loss. From July 2001 – February 2002 she took time off work to look after her husband who had sustained a serious injury and this was obviously a very difficult time for them both.

54. [54]
    These proceedings were commenced in December 2002. In September 2002 at a time when she was obviously receiving legal advice, Mrs Hodges attended an unsuccessful mediation with (I infer) representatives from the hospital. On the 20 September 2002 she approached both Janine Harris and Barbara Sutcliffe with the intention I find of taping them without their knowledge in an attempt to obtain evidence in support of her case. Apparently, a tape (or tapes) was discovered but is incomprehensible. There was clearly at that time a lot of tension between the plaintiff and other staff members at the hospital who she regarded as being maliciously against her and prepared to lie to support the hospital. Again, Ms Sutcliffe made comprehensive notes of the conversation, and these notes are Exhibit 9. The plaintiff agreed with some of the essential features of what Ms Sutcliffe recorded and it was never suggested to Ms Sutcliffe that her notes incorrectly recorded what was said. I accept Ms Sutcliffe’s evidence as to what was said between her and Mrs Hodges on that occasion.

55. [55]
    It has to be kept in mind that the plaintiff was taping this conversation without Ms Sutcliffe’s knowledge although it is clear that Ms Sutcliffe became suspicious of what was occurring.

56. [56]
    The plaintiff became very agitated and angry as the conversation progressed and, as it became clear that Ms Sutcliffe would not accept many of the things she suggested which would have run counter to Ms Sutcliffe’s notes of the February 2001 conversations. She made threats and made some extraordinary allegations eg. that Edwards had threatened to kill a girl and her children while working at the linen service, which do not reflect well on her.

57. [57]
    Ms Sutcliffe (reasonably) reported this conversation to Mr Sullivan who in turn spoke to the plaintiff in the presence of Ms Sutcliffe on 9 October 2002 and his notes of the conversation are Exhibit 7. He was concerned about some of the statements and threats she had made on the earlier occasion eg. that the staff were treating her differently since she reported Edwards, that she hated the hospital and all the people in it, and her threat that “if you think I was a bitch before you haven’t heard anything yet. You wait until I come back to work then you’ll find out just what a bitch I can be”. She agreed that she had said these things and again became agitated. Both Mr Sullivan and Ms Sutcliffe advised her to get counselling and given the attitude she had to the workplace she needed to consider whether she wanted to continue to work there.

58. [58]
    She finally left the hospital in either late 2002 or early 2003; and returned to part time work initially as a cleaner and then as teachers aide of St Mary’s school in June 2004.

Did the hospital fail to have systems in place to inform employees of what to do when sexually harassed?

59. [59]
    The plaintiff says she never saw any pamphlets or other information on this subject at any time during her employment prior to reporting the sexual assault on 22 February 2001. There is no doubt that Queensland Health had been supplied with a range of documents and pamphlets dealing with issues of discrimination including sexual harassment by the Anti-Discrimination Commission prior to February 2001, and that such documents had been supplied to the defendant.

60. [60]
    The plaintiff’s evidence is generally in conflict with the other evidence on this issue which came from the various employees of the defendant who gave evidence on its behalf. Mr Sullivan said that there were notices about the issue on notice boards around the work place, and people (such as Annie Liesengang) who were appointed as WEHOs. Mr Sullivan took up his position as operational services co-ordinator in mid 2000. He said that seminars were held on the issue of workplace behaviour awareness and Exhibit 3 is an attendance sheet for one such seminar held on 11 July 2000 which both Mr Sullivan and Graeme Edwards attended. He also said that all staff received a copy of Exhibit 6 which is a bulky document entitled “Queensland Health Code of Conduct 2000”.

61. [61]
    Mr Raguse retired from his position as hospital orderly in 2004. Although he was a relieving supervisor from time to time at both Hervey Bay and Maryborough, and did on occasions supervise the plaintiff, his main role was (in 2001) as a cleaner and union representative. He says that he recalls seeing plenty of paper work around the workplace dealing with sexual harassment issues but that this was the first complaint of such a nature that he could recall. To be fair to him, although he did report the February conversation with Mr Hodges to Ms Sutcliffe, he did not regard it as a formal complaint which he believed would have to come from the plaintiff. I infer that he did pass it on to Ms Sutcliffe on this occasion because he was told or understood that Mrs Hodges had complained and that nothing was being done about the complaint.

62. [62]
    He recalls seeing information on notice boards dealing with the issue, particularly in the staff room where the employee’s signed in for work, and in the smoko rooms. He also recalls sexual harassment officers and information about procedures if harassment occurs.

63. [63]
    Ms Sutcliffe gave similar evidence. She says that each staff member got a copy of the Code of Conduct, mostly in with the pay-slip or available in the sign-in area. She recalls actually posting up notices from the Human Resources section within the hospital dealing with this issue and she mentioned training sessions, and monthly staff meetings when staff were free to raise issues of concern.

64. [64]
    Janine Harris recalls seeing pamphlets on the issue in racks around the workplace but she did not see anything on notice boards in staff rooms.

65. [65]
    None of these witnesses were really challenged about their evidence on this issue.

66. [66]
    I think the plaintiff is mistaken or has convinced herself that she had no knowledge of how to make a complaint. There is another piece of evidence that fortifies me in this conclusion. In cross examination, she was asked about a work-cover claim she had made many years earlier when she injured her shoulder at work at the hospital. She acknowledged that Workcover had stopped payments after 12 months and that she had unsuccessfully appealed against that decision. When questioned about this issue, she became angry and defensive and (in a very similar way in which she acted in the meetings with Sutcliffe and Sullivan in September/October 2002) she blamed others in particular a doctor who had examined her and found no impairment. She also acknowledged that she had been videoed doing work that, I infer, she had said she could not do, and that this video was placed before the Industrial Magistrate on appeal.

67. [67]
    This evidence, along with my impression generally of the plaintiff is that she is well aware of her rights and is very determined in pursuing those rights if she thinks she has been wronged. In my opinion, she does not present as a person who would not have known what to do in the face of invasive harassment at the hands of another employee.

68. [68]
    I prefer the evidence of Sullivan, Raguse and Sutcliffe on this issue to that of the plaintiff.

Was there any other conduct that should have alerted her supervisors?

69. [69]
    This issue was not really pursued finally by Mr Reid. Although, for example, Ms Sutcliffe saw Edwards inside the plaintiff’s work area and with the plaintiff at times, she saw nothing to alarm her or to cause her concern. There was other evidence of her having lunch with Edwards on one occasion, and sharing a laugh in the lunch room over some magazines which she could not recall. I think that it is probable that these incidents did occur given that initially up to Christmas 2000, the plaintiff herself acknowledges that she and Edwards were friends.

70. [70]
    As I have mentioned, Janine Harris and the plaintiff are at odds over what occurred (if anything) between Harris and Edwards. Harris recalls only one incident in a lift which the plaintiff could not have seen, and she recalled that he touched her neck on occasions, but none of this conduct concerned her. The plaintiff recalls seeing Edwards and Harris “mucking around” after Christmas in the conference room, and Edwards talking dirty, and she recalls that Janine was not happy about this conduct. Harris and Edwards had both been at the Linen Service prior to being seconded to the hospital and it may be that the plaintiff has observed contact consistent with friendship and in her mind, in light of what occurred to her, it has become more sinister. Certainly, in the context of complaining for the first time on the 22 February she did not suggest to either Sullivan or Sutcliffe that there had been inappropriate contact between Harris and Edwards.

71. [71]
    In any event, it matters little because it is not part of the plaintiff’s case that any conduct between Edwards and Harris should have put the defendant on notice that sexual harassment was taking place in the workplace.

Conclusions on the Evidence

72. [72]
    In the light of the above analysis, I make the following findings:

1 There was an informal contact between Mr Hodges and Mr Raguse at Rovers League Club in late 2000/early 2001, when reference was probably made to the cupboard incident which was intended by the husband, contrary to the wishes of the wife, to be a means to pass on a threat to Edwards. It was not intended by the husband, nor could it be reasonably expected of Raguse, that Raguse report the matter to the hospital.  I find that Raguse was adequately trained in grievance reporting proceedings and indeed as can be seen from his response to the approach on the 23^rd, when he was told by the husband (as Ms Sutcliffe’s notes record) that the husband had complained that his wife had complained to Sutcliffe and Sullivan and they had done nothing; he then did contact Ms Sutcliffe because (I infer) he was told that the wife had complained.  I find that the husband contacted Raguse because he knew him well and knew that he was the representative for the Union of which both his wife and Edwards were members.  I am satisfied that Raguse acted appropriately in not passing on the husband’s earlier threat because he would have understood that it was being done without the plaintiff’s knowledge and indeed it would have been improper for him to act without at least some indication that she knew of the contact and approved of him passing it on.  She clearly did not and she remained very reluctant to pursue the complaint formally even after the sexual assault.

2 The hospital acted reasonably and properly in advising employees of sexual harassment procedures and proper workplace conduct prior to the incidents between Edwards and the plaintiff, and to protect employees from such conduct.  In light of my findings set out in 1 above, I reject the submission that Raguse ought to have acted in the way suggested by Mr Reid at paragraph 30 of his written submission.

3I am satisfied on the balance of probabilities that Edwards on occasions between Christmas 2000 and 20 February 2001 sexually harassed the plaintiff.

73. [73]
    It follows that the plaintiff has failed to establish any breach of the duty of care either common law or statutory, and has failed to prove any of the particulars pleaded in paragraph 6 of the Amended Statement of Claim. Her claim therefore fails.

Damages

74. [74]
    The medical and psychological reports were tendered by consent and none of the professionals were required for cross-examination. From an early stage, the plaintiff was diagnosed with an adjustment order and it was recommended that she have counselling which she did and from which she benefited.

75. [75]
    Dr Cantor saw her in April 2001 and diagnosed her with adjustment disorder with depressed mood. He noted that she had stopped taking an anti-depressant which had been prescribed by her GP. He noted her general “disgruntlement regarding the hospital administration” at that early stage.

76. [76]
    After reporting the incident she had a number of days off, and took sick leave from 2 March 2001 until May when she returned for about five (5) weeks. She told me she did not cope well with her return to work and felt victimized by supervisors.

77. [77]
    There is no doubt that she was very distressed immediately following the reporting process, suffering sleeplessness, anxiety, headaches and tension and recall of the events.

78. [78]
    A number of professionals who saw her early on thought her prognosis was good with some on-going psychotherapy.

79. [79]
    By the time she saw Dr Cantor for a progress report on 28 August 2001, he opined that her adjustment disorder and depressed mood attributable to work place issues had resolved. At that time there were other major stressors in her life, in particular her husband’s back injury which had occurred in July and necessitated her taking a lengthy period of time off work to care for him. Dr Cantor also notes her reporting severe financial difficulties however at this second interview “she was able to laugh, was generally more positive and was much more mature and accepting her attitude (sic). No feelings of vindictiveness were observed”.

80. [80]
    She saw psychologist Kay Morgan on a number of occasions in October/Novermber 2002 around the time of her contact with Barbara Sutcliffe. Obviously, at that time, these proceedings were in contemplation. She again had symptoms of adjustment disorder with mixed mood and suicidal indications which related to her perceived lack of resolution from her initial sexual harassment claim. She told Ms Morgan that “there was a culture of fear of continued sexual harassment at work” which she did not refer to in her evidence before me. She complained of the attitude of other staff members to her. A psychiatrist Dr Jenkins assessed her on 26 November 2002, and found no evidence of a diagnosable psychiatric illness.

81. [81]
    She was seen by Dr Mulholland, psychiatrist for medico-legal purposes on 28 February 2003 at the request of her solicitors. He diagnosed her as having a chronic adjustment disorder with anxious and depressed mood…(which is)…a reaction to the emotional, verbal and physical sexual harassment/abuse itself and has been aggravated by the hospital’s alleged lack of support and lack of appropriate response. He makes it clear that his opinion is predicated on an assumption that her reported history was correct. It follows that to the extent that my factual findings diverge from that history, the doctor’s opinion should be discounted.

82. [82]
    Dr Varghese saw her for the defendant on 23 September 2003. He agreed with earlier opinions of adjustment disorder with depressed mood as a result of the sexual harassment. He opines that this was in remission on the occasions she returned to work. He thought that she might also have been suffering from a major depression, which was caused by a number of stressors (which had been referred to earlier by Dr Cantor) and which was in remission at the time of his assessment. He thought the degree of impairment relating to the sexual assault and the hospital’s response to it would not exceed 5%.

83. [83]
    She was then seen by Dr Larder on a number of occasions regarding her work situation, and his report (or reports) were considered by Dr Varghese. In his report dated 12 October 2005 he opined that the adjustment disorder was then in remission and that she was fit for work as a cleaner but that he doubted she could ever return to work at the hospital because of her negative perceptions of what happened to her there.

84. [84]
    She told me that she enjoyed her job as a cleaner and intended to stay there indefinitely. Although it is clear that she could not work as a cleaner again at the hospital for the reasons given by Dr Varghese, there is no reason why she could not work as a cleaner somewhere else. In truth, I think she hates cleaning work as she so eloquently expressed in an outburst during cross-examination about her perception of what others think of cleaners.

85. [85]
    She now works as a teacher’s aide and is undertaking further training.

86. [86]
    Doing the best I can I assess damages as follows:

1. General damages - $15,000

(I would allow interest on the whole of that sum as in my opinion the personal injury resulting from the sexual assault and the hospital’s actions has well and truly abated. In any event, as the many reports reveal there were many other non-compensable stressors operating on this lady after February 2001.) Mr Reed submits that the defendant has failed to disentangle the other (non compensable) factors that contributed to her psychiatric illness from time to time.  I disagree.  The uncontested medical reports clearly establish the various causes of the plaintiff’s condition apart from the injury caused by the harassment and the hospital’s actions.  Dr Varghese’s first report to which I have earlier referred is a clear example of this and the absence of any challenges to his assessment, I accept it.

2. Past Economic Loss

This is set out in a document headed Schedule of Economic Loss and claims for all of the time off work up to the cessation of employment, and for the difference between what she would have earned as a cleaner and what she did earn at St Mary’s, less Workcover and DSS.

In the light of the medical evidence, in my view, only the period 2 March 2001 – 13 May 2001 should be allowed, which would effectively be eliminated by Workcover refunds.

3. She is not entitled to any component for future economic loss and specials are set out in Exhibit 2.

87. [87]
    Orders:

1. Plaintiff’s claim dismissed.

2. Judgment for the defendant.

88. [88]
    I will hear any submissions as to costs.