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  4. Greenway v The Corporation of the Synod of the Diocese of Brisbane - [2016] QDC 195

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Greenway v The Corporation of the Synod of the Diocese of Brisbane[2016] QDC 195

Greenway v The Corporation of the Synod of the Diocese of Brisbane[2016] QDC 195

DISTRICT COURT OF QUEENSLAND

CITATION:

Greenway v The Corporation of the Synod of the Diocese of Brisbane [2016] QDC 195

PARTIES:

RACHAEL LOUISE GREENWAY

(plaintiff)

v

THE CORPORATION OF THE SYNOD OF THE DIOCESE OF BRISBANE

(ABN 39 906 010 979)

(defendant)

FILE NO/S:

BD 1047 of 2015

DIVISION:

District Court

PROCEEDING:

Civil Trial

ORIGINATING COURT:

District Court

DELIVERED ON:

5 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2016

JUDGE:

Kingham DCJ

ORDERS:

  1. The Corporation of the Synod of the Diocese of Brisbane must pay Ms Greenway the sum of 454,935.68 in damages.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – WHERE NERVOUS SHOCK OR MENTAL DISORDER – GENERALLY – where plaintiff was employed by the defendant as a residential carer for young people – where she was assaulted by a young person – where the young person’s violent history was known to the defendant - where after the assault she was required to supervise the young person alone overnight – where the plaintiff now suffers from PTSD – whether the defendant breached its duty of care to the plaintiff – whether the plaintiff’s harm was caused by the defendant’s breach

Workers’ Compensation and Rehabilitation Act 2003 s 305B(1),s 305B(2),s 305D(1)

Amaca Pty Ltd v Ellis [2010] HCA 5, applied

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10, applied

March v Stramare (E & MH) Pty Ltd [1991] HCA 12, applied

Nichols v Curtis & Anor [2010] QCA 303, applied

Serra v Couran Cove Management Pty Ltd [2012] QSC 130, applied

State of New South Wales v Mikhael [2012] NSWCA 338, followed

Strong v Woolworths Limited (2012) 246 CLR 182, applied

Wyong Shire Council v Shirt (1980) 146 CLR 40, applied

COUNSEL:

J Sewell for the plaintiff

G O'Driscoll for the defendant

SOLICITORS:

Slater & Gordon for the plaintiff

Kaden Boriss for the defendant

  1. [1]
    Almost 3 years ago, Rachel Greenway was assaulted by a young person she was caring for at a residence run by the Defendant, trading under the name Anglicare. Ms Greenway was not physically injured but sustained a psychological injury, partly because she was required to care for the young person alone, after the assault. Ms Greenway seeks damages from Anglicare for breaching its duty of care to her as her employer. Anglicare admits the incident and the injury, but denies it breached its duty of care. For reasons that follow, Anglicare must pay Ms Greenway $454,935.68 in damages.

Background facts

  1. [2]
    Ms Greenway’s assailant was then 15 years old and had been assessed by the Department as having complex support needs. He was placed at the residence under a Services Agreement between Anglicare and the Department of Communities, Child Safety and Disability Services. The young person had a propensity for threatening behaviour and violence. Earlier that year, at another placement, he assaulted a female youth worker, stole the staff car and drove it to Beaudesert.
  1. [3]
    The traumatic incident started at about 7pm on 25 August 2013, when the young person became verbally abusive and physically aggressive to Ms Greenway. He was agitated and upset because she would not take him to visit a friend. He had a house phone which he had refused to return to Ms Greenway. After speaking to a friend, he phoned Pana Mafulu, the team leader for the house.
  1. [4]
    Ms Greenway learned that when she unlocked the staff room and the young person threw the phone at her. She picked it up and spoke to Mr Mafulu (the first call). As she did so, the young person pushed past her into the staff room. He was insulting and abusive. He pushed her out of his way as he looked for, and found, the keys to the staff car. Mr Mafulu could hear the commotion in the background. He knew the young person was in the staff room, which is supposed to be secure. Ms Greenway told him she would call him back.
  1. [5]
    Once he had the keys, the young person pushed past Ms Greenway and went to his bedroom. She followed him. He was swearing at her, started hyperventilating and said he was going to kill himself and jump through the window. He kicked the window and broke it. He picked up a large shard of glass. He ran his hand along the edge of the shard as he threatened he could “fuck someone up with this.”[1] Ms Greenway asked if he meant her. He said he would not go to jail for life for her, but there was no one else in the house and Ms Greenway said she felt threatened and was scared. She managed to calm him down and disarmed him. She sent him outside to get some air. After she locked the glass shard in the staff room, Ms Greenway joined the young person outside and talked to him about his behaviour. 
  1. [6]
    After that, she called Mr Mafulu and reported what had happened and what she had done to deal with the situation. There is a dispute about some of what was said during that conversation (the second call). However, it is common ground that Mr Mafulu told her there was no need for him to come over because she had de-escalated the young person. Ms Greenway did not ask for assistance. Mr Mafulu did not offer to find another staff member to assist or relieve her during the shift. Ms Greenway remained alone with her assailant throughout the rest of the shift, which finished the following afternoon, except for a visit by a tradesman that night to fix the window, and a half hour visit by Mr Mafulu around 9 the next morning.
  1. [7]
    Those facts are not in dispute, but Anglicare denies liability to compensate Ms Greenway. The issues are:
  1. Did Anglicare breach its duty of care to Ms Greenway?
  1. If so, did that breach of duty cause her injury?
  1. If so, what damages should be awarded?
  1. Did Anglicare breach its duty of care to Ms Greenway?
  1. [8]
    Ms Greenway claims Anglicare breached its duty of care to her by:
  1. (a)
    Failing to prevent the incident;
  1. (b)
    Failing to adequately respond after the first telephone call; and
  1. (c)
    Failing to adequately respond after the second telephone call.
  1. [9]
    Anglicare denies each of those claims.
  1. [10]
    There is no dispute about the legal principles that apply in determining liability. A case of workplace assault is decided according to the ordinary principles which govern the liability of employer to an employee[2] including those provided by the Workers’ Compensation and Rehabilitation Act 2003.
  1. [11]
    An employer does not breach a duty to take precautions against a risk of injury to a worker unless:
  1. (a)
    The risk was foreseeable (that is, a risk the employer knew or ought reasonably to have known);
  1. (b)
    The risk was not insignificant; and
  1. (c)
    In the circumstances, a reasonable person in the employer’s position would have taken the precautions.[3]
  1. [12]
    At trial, counsel for Anglicare admitted it is reasonably foreseeable that a person may decompensate when being subjected to the situation the plaintiff was in.[4]
  1. [13]
    That concession is consistent with the evidence. Anglicare knew of the young person’s history. It knew of his propensity for threatening behaviour and violent conduct. It had been advised of his prior assault of a residential worker. He was on bail at the time for a number of offences, including common assault. It is also consistent with the medical evidence.
  1. [14]
    Anglicare did not suggest the risk of injury was insignificant. Although that is a higher test than imposed at common law, it is not very much higher.[5] I am satisfied the risk of psychological harm from exposure to threats or violence by the young person was not insignificant.
  1. [15]
    The real contest between the parties was whether a reasonable person in Anglicare’s position would have taken precautions to prevent the injury. In deciding that issue, the court must consider, among other relevant things:
  1. (a)
    The probability the injury would occur if care were not taken;
  1. (b)
    The likely seriousness of the injury; and
  1. (c)
    The burden of taking precautions to avoid the risk of injury.[6]
  1. [16]
    This involves an exercise in balancing out considerations of magnitude of risk, the probability it will occur, the expense, difficulty and inconvenience of precautions and any conflicting responsibilities of the defendant.[7]
  1. [17]
    That issue is best examined with reference to the particular breach alleged and the precautions that Ms Greenway says Anglicare ought to have taken.

(a) Did Anglicare breach its duty of care by failing to prevent the incident?

  1. [18]
    This is not the primary basis for liability asserted by Ms Greenway but is sensibly dealt with first, because it relates to Anglicare’s omissions prior to the incident.
  1. [19]
    Ms Greenway argued Anglicare did not take reasonable precautions prior to 25 August 2013 against the known risk of injury. It seems there are three precautions that Ms Greenway says Anglicare could have, but did not, adopt:

I. It could have refused the placement;

II. It could have provided a second worker to care for the young person;

III. It could have ensured Ms Greenway was adequately trained before requiring her to care for the young person alone.

  1. [20]
    I am not satisfied Ms Greenway has made out her case that a reasonable employer in Anglicare’s situation would have taken any of those precautions.

(i) Should Anglicare have refused to take this placement?

  1. [21]
    The placement was made pursuant to a Services Agreement between Anglicare and the Department. That agreement was specific to this residence. It provided for residential care placements for 2 young people aged 12 - 17 with complex or extreme support needs. In a general sense, consideration of the appropriateness of the model of care for a young person with complex support needs occurred when Anglicare entered into the Services Agreement with the Department.
  1. [22]
    Ms Shah, Anglicare’s Group Manager for Child and Family Services, agreed a placement could be refused, but said there would need to be some good reason to refuse a young person who fitted the profile of persons to be placed under the Services Agreement.
  1. [23]
    There is no evidence about any specific implications for Anglicare if it refused to take the young person. However, Anglicare is funded by the Department to provide such services. It is reasonable to assume some impact on relations between Anglicare and the Department if Anglicare refused to take a funded placement in an approved facility which has capacity to take on the young person.
  1. [24]
    Each placement occurs through consultation between the Department and the service provider. At the time of the incident, only this young person was placed in the residence. The Department assessed him as having complex support needs. The conduct that qualifies a young person in that way is defined in the Services Agreement.[8] It includes a history of and propensity for violence. That is the very conduct that Ms Greenway relies on to demonstrate he was unsuitable for placement under a single carer model. In my view, this presents an insurmountable obstacle to Ms Greenway proving a breach of duty because it failed to refuse the placement.
  1. [25]
    There was nothing particular about this young person that took him outside the proposed care model. In fact, there is some evidence that he was not performing well in a different placement model, where there were 2 carers and 4 young people. This young person fitted the profile of young people whom Anglicare had contracted with the Department to care for.
  1. [26]
    On the evidence before the court, a reasonable employer in Anglicare’s position would not have refused the placement.

(ii) Should Anglicare have provided a second worker to care for the young person?

  1. [27]
    If there had been a second carer with Ms Greenway that night, she may not have suffered the injury. The incident itself may have been avoided. If not, avoided it most likely would have been less traumatic because of the involvement and assistance of another trained worker. Ms Greenway argues Anglicare should either have provided a second carer for this young person.
  1. [28]
    The contractual arrangements between Anglicare and the Department are relevant when considering whether a reasonable employer would have provided a second carer for the young person. Anglicare could have sought funding for a second carer from the Department, but needed a cogent basis for doing so. Ms Greenway did not specify whether a second worker was required 24 hours a day. The Service Agreement provides some evidence of the cost of providing another worker. If that were to be borne by Anglicare, it would be a significant burden.
  1. [29]
    At the time, the young person was receiving one on one care, because there was no other young person in the house. The shift reports[9] record some incidents during the 16 days he was in the house before the assault. They record him chroming, absconding, being involved in a fight at school, throwing a drink at his Aunt, verbally abusing a worker and punching a wall in anger. The same incidents are recorded more than once, in different sections of the report. This creates a misleading impression of more serious and sustained misconduct than is the case. At first blush the shift reports are concerning; but the type of incidents are neither extreme nor unusual for a young person with complex support needs. Further, the reports are not overwhelmingly negative. They also contain many entries which report the young person was happy in the placement and behaving generally in a pleasant and co-operative manner.
  1. [30]
    Overall, in the 16 days prior to the incident, the young person’s conduct was consistent with his profile and was being adequately managed in the house. The shift reports do not warn of an escalation in threatening or violent conduct. They do not provide a cogent basis for seeking funding from the Department for a second carer. A reasonable employer in Anglicare’s position would not have sought funding from the Department or engaged a second worker to care for the young person.

(iii) Should Anglicare have ensured Ms Greenway was adequately trained before requiring her to care for the young person alone?

  1. [31]
    Anglicare relied on training its workers to be able to care for troubled young people under a single carer model. The cornerstone training appears to be the Therapeutic Crisis Intervention course, which Anglicare requires of carers working with young people with either complex or extreme support needs. The course is used widely in the sector. It covers the behaviours they can expect from troubled young people and the reasons for this behaviour. It equips them with skills to respond to these behaviours and, critically, how to de-escalate a crisis situation.
  1. [32]
    Carers are also trained to use a process called a Life Space Interview, which is conducted once the young person has calmed down. This is a structured process of discussion with the young person to assist them to develop insight about their behaviour and to build the young person’s capacity to manage their emotions.
  1. [33]
    Ms Greenway worked for Anglicare for about 20 months from 2010 to 2012. During that time she was intensively trained, undertaking 9 short courses in a range of programs. She did the TCI training over 4 days shortly after starting with Anglicare and refresher TCI training over 2 days in November 2011.
  1. [34]
    Her last training was in November 2011. She resigned from Anglicare in March 2012 and returned a little more than a year later, in May 2013. She did not have further training before starting to care for the young person. So it was 20 months from her last training when the incident occurred.
  1. [35]
    It might have been preferable for Ms Greenway to have had some further TCI refresher training prior to caring for the young person. However, no evidence was led about the industry standard or practice for refresher training or what other employers do if a trained employee has had some time out of the workforce, albeit only a year.
  1. [36]
    Ms Greenway has not made out a case that she was inadequately trained for caring for this young person under a single carer model. There is no evidence the incident occurred because of any deficiency in her training. Nor was it established that Ms Greenway would have handled the situation differently if she had received further training. Rather, the evidence shows that Ms Greenway drew upon her training to competently de-escalate a potentially dangerous situation, even while she felt scared and threatened.

(b) Did Anglicare breach its duty of care by failing to respond appropriately to the either the first or the second call?

  1. [37]
    Ms Greenway’s primary case is that Anglicare’s response to the situation was inadequate. There was no or no adequate check on her welfare. She was not offered support. She was not relieved from her shift. She was required to complete the shift alone.
  1. [38]
    The incident occurred between approximately 7.00 pm and 7.30 pm. In that time, Ms Greenway had two telephone conversations with her Team Leader and supervisor, Mr Mafulu. In her submissions regarding Anglicare’s breach, Ms Greenway separately dealt with Anglicare’s failure to respond to each of the first and second calls. However, it is somewhat artificial to try to disentangle the two calls, which were made fairly close in time and in an evolving and fluid situation.
  1. [39]
    The first occurred when the young person was in the staff room. There was clearly an incident in progress. Mr Mafulu could hear there was a commotion and Ms Greenway told him the young person was in the staff room. She aslo told him she wanted to get off the phone so she could deal with the situation. She said she would call him back. Even though the young person had a history of assault, Ms Greenway was trained and appeared to be handling the situation appropriately. It was reasonable for Mr Mafulu to wait before responding.
  1. [40]
    The second call was after Ms Greenway had disarmed the young person and he was sufficiently calm for her to conduct a Life Space Interview with him. This is when Ms Greenway reported the violent incident to Mr Mafulu. What she told Mr Mafulu should have put him on alert about Ms Greenway’s welfare. She had disarmed a young person who had become so agitated that he kicked out a window, armed himself with a large shard of glass, threatened self-harm and threatened to harm others, Ms Greenway being the only person in his vicinity. It was a dangerous situation which could have ended in serious physical harm. Even accepting he had calmed down, it was a frightening episode that was unexpected. Anglicare conceded the circumstances of the incident could traumatise anyone exposed to it.
  1. [41]
    In its’ submissions, Anglicare suggested that, by that time, Ms Greenway had given the young person a hug. This, it argued, indicated the matter was well in hand and there was no need for intervention. In fact, the hug occurred after Ms Greenway’s second phone call, when she moved the young person to another bedroom and gave him his medications.[10] In any case, it does not, of itself, indicate Ms Greenway was not traumatised. The evidence given by the psychiatrists called by the parties shows otherwise.
  1. [42]
    It is common ground Mr Mafulu did not offer to relieve Ms Greenway. Nor did he offer to visit the home or to send another worker to support her. Ms Greenway said she did not ask for any of those things because Mr Mafulu appeared to think the incident was not serious and she did not want to appear to be incompetent. That is a reasonable inference for Ms Greenway to draw given the terms of their conversation.
  1. [43]
    Mr Mafulu says he asked her how are you feeling and Ms Greenway said she was OK. Ms Greenway denied that exchange. She said Mr Mafulu did not enquire about her welfare at all. I accept Mr Mafulu’s evidence on this point. Given what she reported, it seems improbable that he would not, at least, ask that question. I also accept that she said she was OK. At that time, Ms Greenway did have matters under control and might be expected to say she was OK. She had not been physically harmed. It is also consistent with her desire not to appear incompetent that she would say that.
  1. [44]
    However, Mr Mafulu asked Ms Greenway only that one question about her welfare.[11] Whether that was an adequate response in the circumstances is a different question, to which I will return later in these reasons.
  1. [45]
    Mr Mafulu said he told Ms Greenway that he would have come over to the house, but she had effectively de-escalated the situation and she had to establish herself as the authority in the house. I accept this statement would have discouraged Ms Greenway from asking for assistance.
  1. [46]
    Mr Mafulu agreed they discussed who she should call. He told her to call a glazier, the Department and the young person’s aunt. Ms Greenway says that she asked what about the Police? Mr Mafulu said there was no need to call the police because she had de-escalated the situation. Mr Mafulu could not remember that exchange and said he would remember if she had mentioned the police.
  1. [47]
    The significance of that exchange, for Ms Greenway’s case, is that it is another indication that Ms Greenway was concerned about her safety, which should have put Mr Mafulu on notice of the need to enquire further.
  1. [48]
    I prefer Ms Greenway’s account about this aspect of the second call. It makes sense that she would ask about the police. The young person was on bail. The staff had been instructed to call the police if he absconded and they did not know where he was. Although he had not absconded, he had damaged Anglicare property and had been violent and threatening and had threatened self-harm.
  1. [49]
    Ms Greenway did not present as if she were manufacturing or seeking to improve her evidence to suit her case. She readily agreed she did not ask Mr Mafulu for assistance or to be relieved. If she was lying about her conversation with Mr Mafulu, she might be expected to lie about asking for assistance. That would be more powerful evidence than a more indirect question about calling the police.
  1. [50]
    On the other hand Mr Mafulu’s was less forthright, particularly about whether there was any indication of violence during his conversations with Ms Greenway. At times he was evasive and appeared unwilling to make appropriate concessions.[12] Mr Mafulu said he would remember any discussion about calling Police. However, he was also unable to recall talking to the young person about calling Police during the first telephone call. There is contemporaneous evidence suggesting he did so.[13]
  1. [51]
    Much was made by Anglicare of Ms Greenway not telling various medical practitioners about her desire to call the police and being told she could not. It is common sense that many details are not relayed or recorded during a medical consultation. The purpose is to assess and treat a person’s condition, not to detail a precise account of what occurred. Ms Greenway certainly told medical practitioners she did not feel supported by her employer. That is consistent with her evidence about her second call with Mr Mafulu.
  1. [52]
    In any case, even without a specific enquiry about the police Mr Mafulu had sufficient information to alert him to the need to do more than he did.
  1. [53]
    Mr Mafulu was aware of the following matters:
  1. (i)
    Ms Greenway was alone in the house with a young person with complex support needs and a history of violence, including against a youth worker when he stole a car to visit someone;
  1. (ii)
    He had forced his way into the secure staff room and taken the car keys and was agitated and upset about not being able to visit his friend;
  1. (iii)
    He had kicked and broken the window to his bedroom, so the house was not secure;
  1. (iv)
    He had assaulted Ms Greenway, although she was not physically injured;
  1. (v)
    He had threatened self-harm;
  1. (vi)
    He had spoken in a threatening manner to Ms Greenway while armed with a large shard of glass from the window he had just kicked out;
  1. (vii)
    Although she had disarmed him and he had calmed down, when Mr Mafulu spoke to Ms Greenway she was alone in the house with the young person, the house was still not secure and there was broken glass in his bedroom.
  1. [54]
    Mr Mafulu acknowledged the circumstances would have had an impact on him. He was asked about a prior statement he made to the effect that he thought Ms Greenway might not have got much sleep that night. His response is illuminating:

“I didn’t get an update on the window, whether it was fixed that night or not.  So if I was sleeping in the house – at someone else’s house at work and a window was still broken, I wouldn’t be able to sleep at night.”[14]

  1. [55]
    In that context, Mr Mafulu’s sole enquiry was inadequate. That is particularly so, when viewed in the context of his other statements to her: that he was not going to come over because she had de-escalated the situation and she had to establish her authority in the house; and that there was no need to call the police. Acting only on a brief response to a single enquiry in those circumstances placed inordinate responsibility on an employee who had just experienced a traumatic incident.
  1. [56]
    There were other options open to him. He could have called the Police, visited the house himself or to sent another worker to check on her and assist.[15]
  1. [57]
    Ms Lloyd, for Anglicare, said it is best practice for the on call Team Leader to support the worker to continue to provide care for the young person without being relieved.[16] However, she also described the process she would undertake to assess the employee’s welfare. This went well beyond the sole enquiry made by Mr Mafulu.[17]
  1. [58]
    Mr Mafulu was on call for the purpose of supporting a carer looking after a young person in that house alone. He had no relevant qualifications. Without adequate guidance and proper training, he could not be expected to assess, whether by phone or in person, whether a staff member should be relieved from their duties after a traumatic incident.
  1. [59]
    Anglicare has not adopted guidelines to assist Team Leaders in this regard. It does not train Team Leaders in how to make such an assessment and what factors might indicate a carer should be further assessed, assisted or relieved.[18]
  1. [60]
    Anglicare relied on the TCI course as providing direction to Team Leaders. The focus of that training is de-escalating a crisis situation and guiding the young person afterwards. There is no evidence it adequately equips a Team Leader to assess a staff member’s welfare.
  1. [61]
    Other than the carer’s training, the provision of an on-call Team Leader is the measure adopted by Anglicare to protect the safety and welfare of its employees when working under a sole carer model. How effective that measure is depends on the knowledge and skill of Team Leaders in assessing a carer’s welfare in such a situation. Mr Mafulu was not adequately equipped by Anglicare to fulfil that responsibility and, in this case, his response to the situation was inadequate.
  1. [62]
    A reasonable employer in Anglicare’s position would have taken the following precautions:
  1. Established guidelines for on call Team Leaders to support workers caring alone for young people with complex or extreme support needs; and
  1. Trained on call Team Leaders in how to assess a worker’s welfare in the aftermath of a crisis, considering emotional and psychological issues as well as physical safety.
  1. [63]
    There is no evidence to suggest those precautions would present an unreasonable burden on Anglicare, when balanced against the probability and magnitude of the risk of a worker sustaining an injury when caring for a troubled young person alone.
  1. [64]
    Anglicare’s breach is constituted by its failure to take those precautions.

Did Anglicare’s breach of duty cause her injury?

  1. [65]
    There are two elements necessary to establish a breach of duty caused particular injury:
  1. (a)
    The breach of duty was a necessary condition of the occurrence of the injury (factual causation);
  1. (b)
    It is appropriate for the scope of the liability of the person in breach to extend to the injury so caused.[19]
  1. [66]
    It is common ground the traumatic incident itself was a major contributor to Ms Greenway’s injury. She says that being required to stay alone with her assailant overnight without any support was also a cause of her injury. There is also evidence that her feelings of being let down and unsupported contributed to her injury.
  1. [67]
    Ms Greenway does not need to prove that Anglicare’s breach of duty was the sole cause of her injury, provided it was a necessary condition of the injury being caused.[20] In some cases where there are multiple factors which have contributed to an injury, it is not possible to disentangle them. This is one of those cases. It involves the cumulative operation of factors in the occurrence of the total harm in circumstances in which the contribution of each factor to that harm is unascertainable.[21]
  1. [68]
    Ms Greenway competently de-escalated a crisis situation in which she or the young person or both of them might have been physically injured. However, she said she did not feel calm and was scared that he would become violent again. This conflicts with a statement in an incident report which Ms Greenway signed.
  1. [69]
    The Anglicare staff member who filled out the form did so while he was debriefing her about the incident. She signed it at the end of their conversation. The conversation occurred when she attended for training. The employee took her aside because she did not appear well enough to do the training. Ms Greenway says she was suffering from a panic attack. Under cross-examination about that form, she maintained her evidence that she did not feel calm in the moment. Given her uncontested evidence about her state of mind at the time of the conversation and when she signed the form, I accept her evidence about how she felt on the night is a truthful account.
  1. [70]
    Anglicare has asked me to draw the inference there would have been no different outcome if Mr Mafulu had visited that night. The damage had already been done by the incident. In any case, it argued, had Mr Mafulu visited Ms Greenway would have told him that she was OK. In that case, Ms Greenway could not establish causation.
  1. [71]
    That inference requires speculation. Ms Greenwood explained her failure to ask for assistance was because she perceived Mr Mafulu did not think the incident a serious one. Had he visited that night her perception about his attitude may well have been different and she may well have asked to be relieved. What she might or might not have said or done if Mr Mafulu had responded differently is too speculative for the court to draw an inference about it.
  1. [72]
    Further, Anglicare’s breach of duty is failing to adopt the precautions outlined at [62] of these reasons: i.e. guidelines for and training of on call Team Leaders in assessing the welfare of workers subjected to traumatic incidents. Had Mr Mafulu been adequately equipped to assess Ms Greenway’s welfare, he would, on Ms Lloyd’s evidence, have asked a series of prompting questions and drawn on his observations (whether by phone or in person). He would not have relied solely on the self-assessment of a person who had so recently been through a traumatic incident.
  1. [73]
    Ms Greenway was alone with the young person throughout the night, except for the visit by the glazier. Because his bedroom window was broken, the young person slept in a bedroom adjacent to the staff room. Between that room and the staff room is a bathroom with a sliding door into the bathroom, it has a less secure lock than the main door into the staff room. Ms Greenway sat on the bed facing the door from to the bathroom. She did not sleep because she feared the young person might come in and assault her.
  1. [74]
    The question of causation is a legal not a medical enquiry,[22] but, in this case, it is informed by the evidence of the psychiatrists called by the parties. In a concurrent evidence session, Dr Chalk and Dr de Leacy agreed that Ms Greenway had not been so overwhelmed by the incident itself that it was inevitable she would develop PTSD.[23] That was demonstrated by her actions in de-escalating and disarming the young person.
  1. [75]
    They also agreed that for Ms Greenway, staying in the house with the young person overnight and without support added an additional level of anxiety and this “would be seen as a contributing factor” to the injury.[24] Although Ms Greenway’s feelings were connected to Mr Mafulu’s response on the night, it is the ongoing exposure to the potential of further harm which contributed to her injury.
  1. [76]
    Given that evidence and accepting Ms Greenway’s evidence about her circumstances that night and how she felt at the time, it is more probable than not that Anglicare’s breach of duty was a necessary condition of her injury. Anglicare accepted that, if that was my finding, it is appropriate for the scope of its liability to extend to this injury.
  1. [77]
    Before turning to the question of damages, there is evidence of a prior vulnerability that I should deal with. Ms Greenway experienced episodes of anxiety in 2008 and 2009 that may have made her more vulnerable than another person. However, the doctors agreed the PTSD is a new injury and the events were “frightening enough to have caused PTSD in the average person”.[25] Evidence about this was led by Anglicare for the purpose of assessing damages for future economic loss only. Anglicare did not assert it had any relevance in assessing its liability for Ms Greenway’s current condition.

What damages should be awarded?

General damages

  1. [78]
    General damages are assessed by reference to an Injury Scale Value pursuant to the Workers’ Compensation and Rehabilitation Regulations 2014. Ms Greenwood’s injury falls within Item 11 of Schedule 9 of the Regulations “Serious mental disorder”, because Drs Chalk and de Leacy assessed her injury pursuant to the psychiatric rating impairment scale at 21% and 19% respectively. Item 11 provides a range of injury scale values of 11 to 40.
  1. [79]
    Given the Drs PIRS assessments fall towards the middle of the range, Ms Greenwood contended the injury scale value should also fall towards the middle of that range. An ISV of 27 equates to general damages of $52,600.00.[26] Anglicare submitted for a lower figure of $45,950.00, but did not explain its rationale for that figure. I will award general damages of $52,600.

Past loss of income

  1. [80]
    The parties agree Ms Greenwood has been totally incapacitated from work since 25 August 2013 and remains so. They also agree that past economic loss should be calculated at $720.00 net per week. They agree on the following amounts:
  1. a)
    Past loss of income: $108,720.00 ($720.00 x 151 weeks)
  1. b)
    Past loss of superannuation: $10,057.00; and
  1. c)
    Interest on past loss of income and superannuation (less WorkCover weekly benefits): $3,000.00.

Future loss of earning capacity

  1. [81]
    There is a stark difference between the parties about the award for future economic loss. Anglicare submits $75,000 is an appropriate global award, while Ms Greenway seeks a total of $342,000 under this head of damage. At the heart of this difference are the parties’ competing assumptions about Ms Greenway’s capacity to return to work.
  1. [82]
    Anglicare assumes Ms Greenwood could return to employment at about the same level of pay after about 2 years. That is not supported by the evidence.
  1. [83]
    Ms Greenway assumes a progressive improvement in her condition but submits she will continue to have periods of unemployment and under-employment over the remainder of her working life.
  1. [84]
    That is a reasonable basis for approaching assessment of her future economic loss. However, some allowance should be made for her prior experience of anxiety interrupting her work history. Although Anglicare made no specific submission about this, Ms Greenway has left a position in the past when she was being treated for an anxiety condition. Even without this injury, Ms Greenway might have had some interruption in her working life. That will be reflected by a discount on the global award.
  1. [85]
    Both doctors considered Ms Greenway could not return to the type of work she had been doing with Anglicare and was restricted in the sorts of roles she could likely perform.[27] Both considered frontline positions with access to the public could be problematic.
  1. [86]
    Nevertheless, Ms Greenway presents as a person who is willing to retrain and is motivated to return to some sort of paid employment if she can. She commenced further study but withdrew because she had started the course later than others and could not cope with the pressure of catching up on assessment. Given the medical evidence, it is not surprising she experienced difficulties at that time. She may well be successful in retraining if she is able to enter a course at the usual entry point and without the stress of this litigation.
  1. [87]
    Ms Greenway’s symptoms may well vary over time. The medical records did show a marked improvement in her symptoms after she moved to be near the father of their child and after she changed her medication. How that improvement might translate to employment prospects was not properly explored.
  1. [88]
    Ms Greenway’s subsequent decline (when she was assessed by the experts called to give evidence) was attributed to the stress of this litigation and her need to look backwards at what had happened, rather than orient herself towards her future. It is reasonable to expect improvement from the 12 month course of treatment. Compensation will be assessed on the assumption that her condition will probably improve but that her employment options will be limited.
  1. [89]
    Ms Greenway’s employment prospects are likely to be affected by a number of factors. She will have to disclose a lengthy period of incapacity due to a workplace psychiatric injury. Her injury will limit her ability to re-train and function effectively and efficiently in a foreign work environment. She is vulnerable to further periods of incapacity.
  1. [90]
    It is reasonable to compensate Ms Greenway for a further period of total incapacity of 5 years. At $720.00 net per week, discounted by 5% (multiplier 232), less 15% for vicissitudes, this yields a loss of $142,000.
  1. [91]
    After that, Ms Greenway will have another 26 years until normal retirement age. It is appropriate to make a global allowance for economic loss over that period.[28] Anglicare submitted for an award of $75,000. That is inadequate given the assumptions upon which the award is calculated.  Ms Greenway sought a global award of $200,000, which equates to approximately $300 net week (allowing a discount of 15% for vicissitudes and a 5% multiplier of 769).
  1. [92]
    Ms Greenway will receive a global award of $150,000. This takes into account Ms Greenway’s prior experience of anxiety interrupting her employment.
  1. [93]
    In total, Ms Greenway will receive $292,000 for future economic loss.

Future Loss of Superannuation

  1. [94]
    The parties agree future superannuation should be calculated at 11%. Ms Greenway will be awarded $32,120.

Past specials and out of pocket expenses

  1. [95]
    I will allow $14,000 for past specials and out of pocket expenses for the following items:
  1. treatment and rehabilitation costs incurred by WorkCover totalling $8,125.36;
  1. the Medicare refund, of $2,852.80;
  1. treatment by Dr Nelson and Dr Adesanya; and
  1. out of pocket pharmaceutical and travel expenses.

Future special damages

  1. [96]
    Ms Greenway has a statistical life expectancy of a further 53 years. The doctors agree she requires intensive psychiatric and psychological treatment for a period of approximately 12 months. Twenty psychiatry consultations at $400 each equals $8,000. Twenty-six psychology sessions at $235 per hour equals $6,100.
  1. [97]
    She will also incur from time to time over her lifetime additional expenses (not met by Medicare), for psychological counselling and psychotropic medication. The global assessment for that will be $7,000.
  1. [98]
    In total, Ms Greenway will be awarded future special damages of $21,100.00.
  1. [99]
    Ms Greenway will be awarded damages in the sum of $454,935.68, comprised as follows:
  1. [100]

Head of damage

Amount

General damages

$    52,600.00

Past economic loss

$  108,720.00

Past superannuation

$    10,057.00   

Fox v Wood

$      6,006.00

    Interest

$      3,000.00

Future economic loss

$  292,000.00

Future superannuation

$    32,120.00

Past special damages

$    14,000.00

Future out of pocket

$    21,100.00

GROSS TOTAL

$  539,603.00

Less WorkCover refund

($                84,667.32)

CLEAR TOTAL

$  454,935.68

Footnotes

[1] Transcript of proceedings 1-22 at 18

[2] Serra v Couran Cove Management Pty Ltd [2012] QSC 130 

[3] Workers’ Compensation and Rehabilitation Act 2003 s 305B(1)

[4] Transcript of proceedings 1-3 at 15

[5] State of New South Wales v Mikhael [2012] NSWCA 338 at [79]

[6] Workers’ Compensation and Rehabilitation Act 2003 s 305B(2)

[7] Wyong Shire Council v Shirt (1980) 146 CLR 40 at [48]

[8] Services Agreement p7 (ex 108)

[9] Ex 107

[10] Transcript of proceedings 1-64 at 5

[11] Transcript of proceedings 1-87 at 15

[12] See, for example T1-91; T-92 at 40 to T1-95 at 5

[13] Ex 106

[14] Transcript of proceedings 1-101 at 20

[15] Transcript of proceedings 1-87 at 20

[16] Transcript of proceedings 3-10 at 10

[17] Transcript of proceedings 3-13 at 5

[18] Transcript of proceedings 3-13 at 25

[19] Workers’ Compensation and Rehabilitation Act 2003 s 305D(1)

[20] March v Stramare (E & MH) Pty Ltd [1991] HCA 12; Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10 at [43]

[21] Strong v Woolworths Limited (2012) 246 CLR 182 at 190-194

[22] Amaca Pty Ltd v Ellis [2010] HCA 5 at [6]

[23] Transcript of proceedings 2-46 at 35 to T2-47 at 20

[24] Transcript of proceedings 2-46 at 1

[25] Transcript of proceedings 2-46 at 10 to 20

[26] http://vincents.com.au/wp-content/uploads/2016/07/Litigation-Tables-2016-PDF-for-Website.pdf

[27] Report of Dr Chalk Ex 9 at [11]; Report of Dr de Leacy Ex 11 at pp 9 - 10

[28] Nichols v Curtis & Anor [2010] QCA 303

Close

Editorial Notes

  • Published Case Name:

    Rachael Louise Greenway v The Corporation of the Synod of the Diocese of Brisbane

  • Shortened Case Name:

    Greenway v The Corporation of the Synod of the Diocese of Brisbane

  • MNC:

    [2016] QDC 195

  • Court:

    QDC

  • Judge(s):

    Kingham DCJ

  • Date:

    05 Aug 2016

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2016] QDC 19505 Aug 2016Judgment for the plaintiff against the defendant in the amount of $454,935.68: Kingham DCJ.
Notice of Appeal FiledFile Number: Appeal 8913/1601 Sep 2016-
Appeal Determined (QCA)[2017] QCA 103 [2018] 1 Qd R 30726 May 2017Appeal allowed; decision of Kingham DCJ set aside; judgment entered for the defendant appellant: Morrison and McMurdo JJA and Bond J.
Appeal Determined (QCA)[2017] QCA 13820 Jun 2017Appeal Costs Judgment: Morrison and McMurdo JJA and Bond J.
Application for Special Leave (HCA)File Number: B32/1723 Jun 2017-
Special Leave Refused (HCA)[2017] HCASL 24811 Oct 2017Special leave refused: Gordon and Edelman JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Amaca Pty Ltd v Ellis [2010] HCA 5
2 citations
Jump To
Cite 1 - [2010] HCA 5
Cite 2 - [2010] HCA 5
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10
2 citations
Jump To
Cite 1 - [2013] HCA 10
Cite 2 - [2013] HCA 10
March v Stramere (E & MH) Pty Ltd (1991) HCA 12
2 citations
Jump To
Cite 1 - (1991) HCA 12
Cite 2 - (1991) HCA 12
Nichols v Curtis [2010] QCA 303
2 citations
Jump To
Cite 1 - [2010] QCA 303
Cite 2 - [2010] QCA 303
Serra v Couran Cove Management Pty Ltd [2012] QSC 130
2 citations
Jump To
Cite 1 - [2012] QSC 130
Cite 2 - [2012] QSC 130
State of New South Wales v Mikhael [2012] NSWCA 338
2 citations
Jump To
Cite 1 - [2012] NSWCA 338
Cite 2 - [2012] NSWCA 338
Strong v Woolworths Ltd (2012) 246 CLR 182
2 citations
Jump To
Cite 1 - (2012) 246 CLR 182
Cite 2 - (2012) 246 CLR 182
Wyong Shire Council v Shirt (1980) 146 C.L. R. 40
2 citations
Jump To
Cite 1 - (1980) 146 C.L. R. 40
Cite 2 - (1980) 146 C.L. R. 40

Cases Citing

Case NameFull CitationFrequency
Corporation of the Synod of the Diocese of Brisbane v Greenway[2018] 1 Qd R 344; [2017] QCA 10311 citations
Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 1381 citation
1

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