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  4. Govier v Unitingcare Community - [2016] QDC 56

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Govier v Unitingcare Community[2016] QDC 56

Govier v Unitingcare Community[2016] QDC 56

DISTRICT COURT OF QUEENSLAND

CITATION:

Govier v Unitingcare Community [2016] QDC 56

PARTIES:

TONI MAREE GOVIER

(plaintiff)

v

UNITINGCARE COMMUNITY (ABN 28 728 322 186)

(defendant)

FILE NO/S:

BD 950/14

DIVISION:

Civil

PROCEEDING:

Civil Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

18 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

17 and 18 August, 16, 17 November, written submissions to 10 December 2015.

JUDGE:

Andrews SC DCJ

ORDER:

The plaintiff’s claim is dismissed

CATCHWORDS:

EMPLOYMENT LAW – injury to employee – psychiatric injury – employee violently assaulted – employee sustained physical and psychiatric injuries from the assault – employer’s investigation of employee’s conduct in connection with the assault – where two letters from employer to employee in connection with the investigation aggravated the psychiatric injury – whether duty of care in respect of the content and timing of the letters.

Industrial Relations Act 1999 Qld section 83

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 considered.

Hegarty v Queensland Ambulance Service [2007] QCA 366 at [49] followed.

New South Wales v Rogerson [2007] NSWCA 346 considered.

O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 considered.

State of New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371 followed.

Palmer & Ors v State of Queensland [2015] QDC 63 at [124] followed.

Woolworths Limited v Perrins [2015] QCA 207 at [66] followed.

COUNSEL:

W D P Campbell for the plaintiff

Morton for the defendant

SOLICITORS:

Kevin Bradley Solicitors for the plaintiff

McInnes Wilson Lawyers for the defendant

Issues

  1. [1]
    The plaintiff was attacked and beaten by a co-worker. During the attack she feared she would die. She suffered physical and psychiatric injuries. She escaped by car and was hospitalised.
  1. [2]
    While hospitalised, the plaintiff’s employer, the defendant, instructed her to attend an “investigation interview” next day, directed her not to discuss the incident with any other employee, directed her not to enter any work sites and stood her down on full pay. The plaintiff was too ill to attend the interview the next day or the rescheduled meeting several days later. Two weeks later the employer advised her that she had refused to attend the meetings and that the defendant had made preliminary findings that the plaintiff had engaged in violent, inappropriate behaviour; that the plaintiff’s employment could not be continued; that her behaviour reflected poorly upon her; that she had made unnecessary physical contact with the co-worker; that the author was very disappointed and that she had five days to provide written explanation with reasons why her employment should not be terminated. The plaintiff suffered a chronic post-traumatic stress disorder and a major depressive disorder. The timing, manner and content of the defendant’s letters caused a sense of injustice and betrayal in the plaintiff and aggravated her psychiatric injuries.
  1. [3]
    The first issue is whether the employer breached its duty to the plaintiff by rostering the plaintiff and the co-worker so that they met at change of shift. Resolution of that issue raised factual issues: whether the plaintiff had told her supervisor of four specific incidents during which the co-worker had arguably assaulted and physically obstructed the plaintiff; (She had not told her supervisor.) whether the plaintiff had given her supervisor a letter expressing her concerns about the co-worker and asking that she and the co-worker be kept apart, or whether a copy of the letter in the plaintiff’s possession is a fraudulent concoction; (She had given a copy to her supervisor.) whether from that letter and oral complaints to the employer the risk of either a physical assault or a psychiatric injury was reasonably foreseeable before the assault; (They were not.) on the alternate hypothesis that a risk of psychiatric injury was foreseeable before the assault, did the defendant breach its duty to take reasonable care by failing to counsel or reprimand the co-worker; (No.) or by failing to ensure that the co-worker did not meet at changes of shift; (No) on the hypotheses that the employer had a duty of care to prevent psychiatric injury and breached its duty, was there a break in the chain of causation because the co-worker finished her shift, departed and returned before assaulting the plaintiff? (No)
  1. [4]
    The second issue is whether the employer’s insensitive first letter and critical second letter to the plaintiff after her injury involved a breach of duty. Resolution of that issue raised factual and legal issues. The factual issues were whether the letters caused injury; (They did.) whether the injury was reasonably foreseeable (It was.) whether by the timing and content of the two letters the employer failed to take reasonable care for the plaintiff; (It did.) The legal issue is whether, in spite of that failure to take reasonable care by the timing and content of the two letters, no employer’s duty arose to take reasonable care for the plaintiff’s psychiatric health in the timing of and the content of those two letters. (No duty arose.)
  1. [5]
    The third issue is to determine quantum of loss where it has two causes: the assault and the timing and content of the letters.

The plaintiff’s presentation as a witness

  1. [6]
    The plaintiff saw the psychiatrist Dr Curson eighteen times between 20 June 2011 and 29 January 2015, for interview. Doctor Curson described the plaintiff:[1]

She presents as extremely anxious and low in mood.  At times Mrs. Govier dissociates.  She appears to be in a trance-like state and has to be brought back to the interview.  As a result of this she often loses the thread of the conversation and appears frequently distracted and preoccupied.  There is no apparent evidence of psychotic symptoms and she has reasonable insight and judgement.

  1. [7]
    The plaintiff gave evidence over four days. Her presentation while giving evidence was unusual. Her presentation when giving evidence on 17 August 2015 was of a person extremely anxious, low in mood and apparently distracted. She presented similarly while giving evidence on 16November 2015.  On 17 November 2015 she appeared slightly improved in the morning and further improved in the afternoon. She was much the same on 18 November 2015 as she had been in the afternoon of                           17 November 2015. Occasionally the plaintiff’s evidence was inconsistent with her earlier evidence,with particulars or with what I infer to have been her earlier instructions. Such inconsistencies are often used by courts when assessing honesty or reliability.  Drawing inferences about honesty or reliability because of altered instructions and inconsistencies is complicated by the plaintiff’s condition.  I infer that the condition recognised by Dr Curson and which was apparent even during this trial would have affected the way the plaintiff gave instructions.  Instructions from the plaintiff to her solicitor may not have been as complete as they would have been if she had not been affected by the condition.  The plaintiff’s condition may have affected her capacity to appreciate and respond to questions put to her in court. It provides a possible explanation for inconsistencies in her evidence particulars and instructions. I am less inclined to find that inconsistency was caused by lack of honesty and more inclined to attribute it to innocent unreliability. Notwithstanding that, the plaintiff retains the forensic disadvantage that she has the onus of proof.        

The plaintiff added four late particulars of the defendant’s knowledge of MD’s aggressive behaviour       

  1. [8]
    The plaintiff’s particulars changed on the important issue of whether the employer had knowledge of the risk of a physical assault by MD. The plaintiff alleged that at all material times the defendant knew MD to behave in the workplace in an erratic, unpredictable, hostile, aggressive and confrontational manner towards other employees, including the plaintiff.[2] Particulars initially pleaded of the defendant’s knowledge of MD’s behaviour probably reflected the plaintiff’s instructions given to her lawyers to the date of pleading. The particulars were pleaded as “not limited to” but including various matters.
  1. [9]
    It was initially pleaded for her that particulars of the complaints and the behaviour are in a letter handed by the plaintiff to her supervisor, Mr Blackett on 20 October 2009. A copy of the letter allegedly handed over is exhibit 4.
  1. [10]
    On the first day of the plaintiff’s evidence on 17 August 2015, she gave evidence of four matters which were not the subject of earlier particulars and which received no express mention in the letter exhibit 4. If accepted, they are, arguably, more significant sources of the defendant’s knowledge of MD’s propensity for physical assault. I will call them the four fresh complaints. After evidence of them emerged at trial, the plaintiff included particulars of them in an amended statement of claim.[3]
  1. [11]
    I refer to exhibit 4 to reveal what complaints about MD’s behaviour were initially particularised to have been made between August and 14 October 2009. The plaintiff wrote in the letter, exhibit 4:
  • “As I have already explained to you previously, I do not wish to work with or near the staff member known as (MD).  I do not wish to have any contact with this person.  I do not wish to be placed in a position where I may cross paths with her during a shift changeover…”;
  • “As I told you previously I am struggling to understand (MD’s) behaviour toward me”;
  • “I wish to request not to work with or near her because her behaviour frightens me”;
  • “I feel my presence antagonises (MD) and I feel she looks for fault in everything I do …  She has a problem with me”;
  • “As you are aware whilst working with (MD) on numerous occasions she has made personal comments in the staff communication book about my character and work performance”;
  • “She has taken action to belittle me, made physical changes to my work and misrepresent (sic) me to other staff”;
  • “Over the past few months I have been … harassed by (MD) in my workplace”;
  • “I have tried to communicate my concerns about her behaviour with you”;
  • “I requested information regarding the correct procedure I should follow to make a formal complaint and 10/12/09 you emailed a copy of ‘complaints management procedure policy’ form”;
  • “I requested to have a meeting with (MD) in your presence to try and resolve any issues she had with me”;
  • “At the first meeting held at the office on 14/10/09 I tried to communicate with her and attempt to discuss and/or resolve any issues she had with me or my work.  I did this by asking about her remarks in the staff communication book.  As you observed during this meeting she became hostile toward me, twisted my words and made false accusations about me”;
  • “At one point you suggested to (MD) there may be a communication problem due to language barriers.  I then tried to explain that I was born and raised in a foreign country and was aware of the barriers that could arise between varying cultures and differing languages and that if this was … the problem … I was open to finding ways we could overcome this … suddenly (MD) became angry, raised her voice, started pointing her finger at me and then said, ‘You have a problem with people who are born in another country,’ and accused me of being prejudice”(sic);
  • “I … felt incredibly disturbed by the way (MD) twisted the meaning of my words and quickly flew into a rage”;
  • “I felt so frightened and shocked I stood up and walked out of the room without saying a word”;
  • At the following meeting at the client’s premises “you stated in front of another staff member (Toni Crepin) ‘I believe (MD) has a very serious mental health problem’ I found your words quite alarming. After stating this you put both hands over your face and moaned and said ‘oh, I don’t know how we’re going to deal with this’, ‘this is a big problem’. The other staff member present asked what had happened and you gave a brief explanation and then you said you didn’t know what could be done about it”;
  • The plaintiff wrote that she brought to Blackett’s attention (MD’s) written comments;
  • “It is glaringly obvious to the me that (MD) has a problem with me and simply does not like me”;
  • “I perceive (MD’s) behaviour toward me as aggressive, unpredictable and even narcissistic”;
  • “I find (MD’s behaviour) puzzling, frustrating, I’m second guessing my every move at work wondering if she will have a problem with it”;
  • (MD) “scares the hell out of me and I just don’t want to be around her”;
  • “A staff member disclosed to me that (MD) had been creating tension among staff in another client home … (and said) ‘it looks like you have become (MD’s) new victim“; and
  • “It is because of my experiences with (MD), your comments regarding (MD’s) level of mental health and feedback from other staff that I am frightened of her and do not wish to come in contact with her.”
  1. [12]
    One can see that the letter’s accusations concern, almost exclusively, emotional aggression. The only physical aggression expressly mentioned was finger pointing with a raised voice during a meeting with Mr Blackett present.
  1. [13]
    The four fresh complaints, by contrast, were not of matters written by MD in books and were more aberrant forms of physical aggression than finger pointing and a raised voice. In summary, the four trial complaints were of a broom handle push to the back, a hand push to the breast, a grabbing of the wrists and a jumping in front of the plaintiff to block her path.

Facts

  1. [14]
    The defendant is and was at all material times an unincorporated legal entity capable of being sued. It traded as “Lifeline Community Care Queensland” from premises at 16 East Street, Ipswich (“the Ipswich office”).
  1. [15]
    The plaintiff was employed by the defendant as a disability worker at the Ipswich office. From in or about August 2009, the plaintiff was charged with the care of the defendant’s client, Tara, at Tara’s premises at Yamanto in Queensland. The parties agreed that I should refer to the client as Tara, to attempt to maintain her anonymity.
  1. [16]
    Pursuant to the definitions in the Workplace Health and Safety Act 1995, as amended:
  1. the plaintiff was a “worker” pursuant to s 11;
  1. the defendant was an “employer” pursuant to s 10;
  1. the client’s premises were a “workplace” pursuant to s 9; and
  1. the Risk Management Code of Practice 2007 was a “code of practice” pursuant to the Workplace Health and Safety Act 1995.
  1. [17]
    The defendant also employed, at material times, MD as a disability worker to provide care to Tara at Tara’s premises. The parties agreed that I should use MD as that worker’s descriptor to maintain her anonymity, because the plaintiff alleges criminal conduct by MD.

The plaintiff’s early history

  1. [18]
    The plaintiff was born on 15 March 1960 in Penang.  She was 1 of 8 children.  Because of her father’s career in the Air Force, the family moved residence about every 3 years.  The plaintiff’s school performance was fair.  She left Ipswich State High School at the end of year 11.
  1. [19]
    The plaintiff obtained her first job by offering to work for free, cutting onions. That led to a paying job in a hotel.
  1. [20]
    In 1980, aged 20, the plaintiff had employment as a factory worker when she was involved in a motor vehicle accident.  That accident left her with impaired vision in her left eye.  She underwent a couple of surgeries and was out of the work force for about a year.    
  1. [21]
    The plaintiff did not return to the factory. She worked in various roles related to hospitality: cleaning, kitchen hand, bar and restaurant work.
  1. [22]
    The plaintiff’s daughter was born in 1987.
  1. [23]
    She became the restaurant manager at the Ipswich Golf Club in August 1993. 
  1. [24]
    She remained there until 1998 when she commenced three years full time study at Bremer TAFE College.  At the college she obtained a Diploma of Applied Science for Community and Human Service, a Diploma for Youth Work, a Diploma for Community Work and a Diploma for Alcohol and other Drug Work.  While doing that study, it was a course requirement that students perform three months of voluntary, unpaid community work.  
  1. [25]
    The plaintiff did and she enjoyed it. She commenced volunteer work at the end of her time at Bremer TAFE.
  1. [26]
    By about 2001 the plaintiff had left Bremer TAFE.    She also worked in a couple of paid positions.  She went first into Rosewood Youth Work but did not enjoy it.  There was not much work in that field. 
  1. [27]
    She soon obtained a job at the Leichhardt Community Centre as a family outreach officer. It was full time paid work. While doing that she was working a 40 hour week. In addition she did work as a volunteer for 2 or 3 hours per week. The voluntary work required the plaintiff to go to clients’ homes.
  1. [28]
    In about 2005 the plaintiff moved to Toowoomba.  She was part of a meditation group and wanted to be closer to that group and to get more involved with the studies which the group was doing.  It was difficult for her to find work in Toowoomba so she took a job cutting flowers until she found a job working with the disabled at Breakaway Toowoomba Inc. 
  1. [29]
    From November 2006 until 1 of April 2008 she did similar work at Warrina Community Co-op. 
  1. [30]
    In about March 2008 the plaintiff suffered a myocardial infarction and was given support by her friend Georgina Nelson. In May 2008 the plaintiff’s friend Georgina Nelson suffered a stroke and the plaintiff supported Ms Nelson.
  1. [31]
    In 2008 the plaintiff was looking after a friend in Toowoomba who died. I infer that the friend was Ms Nelson. After that death, the plaintiff returned to Ipswich. At Ipswich she worked for Warrina Community Co-op, Ipswich and also for Connect 2 Group Cleveland and for Focal Extended Inc. Ipswich. Those jobs were as a disability carer.

The plaintiff’s employment with the defendant

  1. [32]
    From about 17th February 2009 the plaintiff began work as a disability carer for the defendant.  The plaintiff applied for that job with the defendant.  For the 10 months that she worked for the defendant before her injury she had two clients, Tara and Nikita.  
  1. [33]
    Tara, had an intellectual disability and challenging behaviours. Tara could be very aggressive to others and could self-harm. She required 24 hour care, 7 days a week. That care was provided by the defendant. At Tara’s house there was one room set aside for the defendant’s staff. The room had an office, a bed, and access to a shower and toilet. That area could be secured to prevent entry by Tara. If the plaintiff was staying at Tara’s overnight she would sleep with the door locked.
  1. [34]
    The plaintiff described Tara and Nikita as “high needs” clients. I infer that meant at least that Nikita also required 24 hour care, 7 days a week. The plaintiff opined that three carers were enough for a high needs client. I infer that some clients prefer continuity of carers because a client can develop an agreeable relationship with the carers. And yet, the plaintiff recalled six other carers apart from herself and MD who looked after Tara and remembered that there were other people who filled in.[4]  
  1. [35]
    David Blackett (“Mr Blackett”) was a supervisor employed by the defendant and based at an office in East Street, Ipswich. He was the supervisor of the plaintiff and of MD and Tara’s other carers. Sometimes he would drop into a client’s house randomly. His only regular contact with the carers was at the staff meetings.
  1. [36]
    On about 19 August 2009 the plaintiff received from the defendant a “certificate of appreciation”. 
  1. [37]
    It was a document of that date awarded to her “In Recognition of Valued Service Support”. Pinned to it was a note from Mr Blackett which reads:

Thanks for all your good work with clients and significant others! You have gone above and beyond the expectations of work and it is very much appreciated.

Cheers, Dave B. 

  1. [38]
    The plaintiff had difficulty describing the hours of her shifts. She explained that shifts were for a regular period of time but that sometimes, if a worker was sick or late, a shift would be extended. The plaintiff said that the 6:00 AM shift would probably end at 4:00 PM but said it was an 8 to 10 hour shift. The day on which the plaintiff was assaulted by MD, the plaintiff was rostered to work a ten hour shift.[5] The plaintiff thought that the evening shift was from 6:00 PM to 6:00 AM.
  1. [39]
    Tara required medication at regular times. There was a book to record the medication given to Tara. The book was the “Client medication administration book”. Another was a “staff communication book” which was for staff to give messages to the next staff member, for example, as to how the shift had been or whether Tara had an appointment. Another book was a “diary”.[6]
  1. [40]
    The plaintiff remembered other employees of the defendant who had cared for Tara. She remembered Fiona Greenwood, Melissa Rech, Donna, Lisa, Margaret, Tony Crepin and MD.
  1. [41]
    The plaintiff believes her relationship with Tara’s other carers was good. The exception was the plaintiff’s relationship with MD. She believed it had been satisfactory. The plaintiff said in evidence:[7]

I started noticing her behaviour towards me and things she wrote in the staff book…. She started writing things in the staff communication book.  At first, I didn’t really take much notice of it and then it was more directed at me all the time.  That’s when I noticing it… She put a calendar on the desk and I’d moved it, not thinking anything.  I just moved it aside to move my paperwork… She had a problem that I moved her calendar and I said “I’m sorry. I didn’t mean too.”… And she kept going on about that.

Mr Campbell: “…. It was eventually something she taped in place so it couldn’t get moved? ---She sticky taped it to the desk… I remember a time when I moved the furniture because… Tara… would sit in the lounge room and when she got stressed out she would rock on her chair and hit her head on the wall, so I moved the lounge forward… So that if she rocked, she’s not going to hit her head… She’d open the skin on her head and bleed… I moved it a safe distance.  And then… (MD) came in and moved it back.  And… she said she took photographs of it…her notes[8]… Became more frequently focused at me…and the thing about her taking photographs, she wrote that in the notes… she moved the lounge and took the photograph to prove it…If I moved the furniture or did something…then she would do the same and copy that…they were tiny little things that she did that I couldn’t understand… I explained in the book.  And she said I’ve taken photos.  And I explained, well it’s a - I moved it so that Tara wouldn’t hit her head, and it’s also a health and safety risk…”     

  1. [42]
    The plaintiff gave evidence of something else written in a book. She was unclear as to whether the book was the staff communication book or a daily recording book or a dairy. The plaintiff recalled that MD[9] wrote that the plaintiff had not administered medication and that the plaintiff had not signed the book.  The plaintiff said that each of these things was incorrect.
  1. [43]
    The plaintiff said that she did not respond to MD and did not “have it out with her”. However, the plaintiff explained in the staff communication book why she had moved Tara’s chair.
  1. [44]
    The plaintiff’s unresponsiveness in evidence on the first day resulted in some leading questions by way of prompts. One significant issue was the extent of the complaints which the plaintiff had made to Mr Blackwell about MD. The plaintiff agreed with her counsel’s suggestion that her case was that she started complaining about MD about when she received the certificate. Her counsel then gave her a multiple choice as to the number of complaints and the plaintiff selected counsel’s first option “numerous”.
  1. [45]
    When asked for details of the numerous complaints, the plaintiff explained:

They weren’t so much complaints…in the beginning, I was just disclosing things to him and I told him I didn’t understand where she was coming from… like, what’s going on… he listened… I asked David if we could have a meeting and talk to her and get to the bottom of why she didn’t like me… I told him that I wanted to make a formal complaint at that stage and I didn’t know how to go… about it, so I asked if he had the proper procedure and he emailed it to me… I think it was just a guide on what… to do to make a formal compliant…[10]

  1. [46]
    That piece of evidence was of complaints generally by the plaintiff to Mr Blackett from the time of her first complaints. That general evidence is consistent with the letter, exhibits 4 and 22, in that the plaintiff did not claim in that evidence that she told Mr Blackwell of MD’s physical aggression. It was about 20 pages of evidence later where the first express allegation arose of physical aggression.
  1. [47]
    The plaintiff agreed that Mr Blackett’s email was sent on 12 October 2009.  The plaintiff gave evidence to the effect that Mr Blackett asked her not to submit a formal complaint until the three had meet and talked. 
  1. [48]
    She agreed with the suggestion and explained in her evidence that there would have been no point in putting in a formal compliant if she and MD had been able to resolve everything at a meeting. I accept that they discussed these things on about 12 October 2009.
  1. [49]
    Mr Blackett organised a meeting to be attended by Mr Blackett, the plaintiff and MD. On about 14October 2009 in a conference room at the defendant’s office at East Street Ipswich, the three sat at a table.  The plaintiff could not remember                         Mr Blackett’s words.  Her evidence was that MD got angry and raised her voice.  The plaintiff gave evidence that Mr Blackett said something about a possible communication barrier “because you’re not from Australia” though he did not use those exact words and that the plaintiff gave evidence that she explained to MD:

“I was born in a foreign country.  I grew up in a multi-cultural environment and I know what that’s like.  When two people are trying to communicate and they get their messages mixed up, you’ve just got to be patient and try to work things out.  And she took that and got really, really angry and she said that we were calling her prejudice or something.  I can’t remember her words, but she got really angry and raised her voice and she was (pointing a finger at me)… I think she actually said I was prejudiced… or racist or something… and then David…just stood up out of his seat and he put his hands up and her went “No. no. no. Stop. Stop.  I am ending this meeting.”… I walked out… I think it was a fear reaction first and I walked out- like, outside the main hall and took a couple of deep breaths and then I went back… and I opened the door and I said, “I’m sorry, David. I just want you to know that I – I didn’t walk – I didn’t – I haven’t left.  I’m going to go up and wait outside the main office.  And I’m sorry it didn’t work out.” And I just went and sat up at the office… I thought she was going to hit me… because of…her tone of voice…her facial expression… I was a lot smaller than I am now… about 48 kilos… she was probably around the same size as me, but she - I would say she was bigger… David came in a while later and, when he saw me there and I stood up and he went, “I’m so sorry. Oh my god. I didn’t realise how big the problem was with her.  She’s got some serious problems… I’ll see you out at Tara’s house.”  And then we went to the next meeting at Tara’s… I drove straight from the office out to Tara’s house, and David Blackett arrived shortly after.

  1. [50]
    The defendant alleged, undoubtedly on Mr Blackett’s instructions, that “in fact at the meeting (it was) the Plaintiff (who) became angry, raised her voice aggressively at MD, abused and accused MD and stormed out of the meeting”.[11]For reasons which follow, I regard the allegation as unproved. At best for Mr Blackett, the allegation was based on his flawed recollection.
  1. [51]
    I accept that the plaintiff left the meeting and left Mr Blackett alone with MD. I accept Mr Blackett’s evidence that MD agreed to try to “get along” with the plaintiff.[12]  I accept his evidence that afterwards he discussed these things at the defendant’s premises with the plaintiff and that she made a similar agreement.[13]  He hoped that the problem would be solved by roster changes.[14]
  1. [52]
    A meeting at Tara’s home had been pre-arranged for 14 October 2009 to talk about issues related to Tara. It had not been arranged for the purpose of discussing the failed mediation.
  1. [53]
    The plaintiff alleged in her pleadings[15] that there was another meeting on                         14 October 2009 at Tara’s house.  The plaintiff alleged that the meeting at Tara’s followed the failed mediation.  The defendant initially pleaded that the meeting at Tara’s house occurred before the meeting at the Ipswich office.  That detail of the timing was inserted by the defendant in its amended defence.[16]  By the occasion of its further amended defence[17] the defendant deleted the detail relating to the order in which the meetings occurred on 14 October 2009. I infer that the defendant’s instructions changed as Mr Blackett’s instructions changed. It is consistent with my impression formed during Mr Blackett’s evidence that his memory of relevant events prior to the assault on the plaintiff on 3 December 2009 was unreliable. At the time of trial Mr Blackett believed that the dispute between the plaintiff and MD aired at the meeting of 14 October 2009 was about “petty stuff’.[18] He admitted in evidence to little memory of the meeting on 14 October at the defendant’s premises and to little memory of the other meeting that day at Tara’s place. I regard Mr Blackett’s evidence of the events of October 2009 as affected by poor recollection. I accept the submission of defence counsel that “It is clear that Mr Blackett was not a good historian”.
  1. [54]
    The plaintiff alleged that at the meeting at Tara’s house on 14 October 2009                   Mr Blackett was talking with her about the mediation.  She conceded in evidence that  she could not then remember the conversation[19] but in spite of that concession she continued that Mr Blackett said:

“I didn’t realise… how big the problem was, how big her problem was, and I think she’s got some serious mental health issues, and I had no idea.”  And that’s when Tony Crepin asked “what’s going on?”… And David started to explain about the meeting and then he asked me to – “you tell her”, and I started telling Tony Crepin about what happened in the meeting and how MD had got cranky and aggressive and just how she had twisted what David and I were talking about into a totally different context”.

  1. [55]
    So much accurate detail of a conversation which took place 5 years before is unlikely. However, the plaintiff alleges that she wrote her recollections of events in a letter of which exhibit 4 is a copy and handed that letter to Mr Blackett on 20 October 2009. If that allegation is correct it would make more plausible that the plaintiff could accurately recall the events of 14 October 2009. For the reasons which follow, I accept that the plaintiff wrote and supplied a letter to Mr Blackett on 20 October 2009. Salient features of the letter are set out in paragraph [10] above.
  1. [56]
    The plaintiff gave evidence that Mr Blackett looked at the letter, a copy of exhibit 4, when she handed it to him, that he did not read it but said “it’s long”. The letter exhibit 4 is indeed long. It is full of detail about the fear and concern felt by the plaintiff. It contains almost no allegation of physical, as opposed to emotional, aggression by MD. Mr Blackett was in a position to observe the physical aggression expressly described in the letter. It was MD’s finger pointing with raised angry voice during the meeting at the defendant’s premises on 14 October 2009. It is plausible that a person receiving the letter would not attempt to read it immediately. If Mr Blackett thought that the dispute between the employees was over “petty stuff” it is more plausible that he would postpone reading it. I accept that if the letter was handed over that Mr Blackett did not immediately read it.
  1. [57]
    Was the letter given to Mr Blackett? The photocopy letter dated 20 October 2009, exhibit 4, is a photocopy tendered through the plaintiff.  The plaintiff’s evidence is that she wrote the original because she did not want to go near MD, that she wrote it on her computer over about six days, implying that she began on about                                    14 October 2009;[20] that she was in the office at Tara’s house when Mr Bartlett was there;[21] that she said she had written the letter for him and did not want to work with MD anymore and she asked him to sign and witness the letter and to give her a copy;[22] that the plaintiff put her signature on the original and the words “RECEIVED BY;” that Mr Blackett signed the original and applied the date 20/10/09;[23] and that Mr Blackett gave her a copy though it was not on the same day.[24]
  2. [58]
    The defendant, by its pleading, denies that the plaintiff handed Mr Blackett the letter, and denies that Mr Blackett acknowledged receipt of it by signing it and by later copying the signed letter and providing the plaintiff with a copy.  The bases of the denials are that the matters alleged “did not happen”.[25]  Further, the defendant alleges that after “14 October 2009 the Plaintiff made no complaint to Blackett about the conduct of (MD)”.[26]
  1. [59]
    The photocopy letter, exhibit 4, appears as if it was dated as received by Mr Blackett on 20 October 2009. Mr Blackett believes the “20” component of the date was not in his handwriting. The unspoken inference is that it could have been a copy created by copying a sample of Mr Blackett’s signature from another document with a sample of a date written by Mr Blackett on another document, though a date which had not included “20” and that some unspecified person, not Mr Blackett, inserted the “20”. The defendant alleges the letter is a concoction. There was included in the letter the following passage relating to the meeting at Tara’s house:

At the following meeting at the client’s home you stated in front of another staff “I believe (MD) has a very serious mental health problem” I found your words quite alarming.  After stating this you put both hands over your face and moaned and said “oh, I don’t know how we’re going to deal with this”, “this is a big problem”.

  1. [60]
    The plaintiff was upset by MD’s behaviour at the failed mediation on                                   14 December 2009. Even Mr Blackett accepts that afterwards he tried to roster the two employees so that there would be no crossovers. It is consistent with the plaintiff’s dislike for working with MD exacerbated by MD’s behaviour at mediation that the plaintiff would promptly write a letter like exhibit 4.
  1. [61]
    On 26 February 2010 the plaintiff telephoned Mr Blackett and recorded her conversation. 
  1. [62]
    The transcript of that conversation[27] included this exchange:

(Plaintiff):  I do keep on reflecting back on that meeting that we had at Tara’s house when you said that (MD) had a metal health problem.

(Mr Blackett): Yeh, Yeh, well that’s what I did feel was possibly the scenario, I mean um, I really don’t know for sure about those things but um yeh um, I suspect, well there were certainly issues weren’t there?                

  1. [63]
    Mr Blackett’s acceptance in the telephone conversation 4 months after his meeting at Tara’s house that he had referred to MD’s “mental health problem” satisfies me that he did assert to the plaintiff on 14 October 2009 at Tara’s house following his observations of MD at the meeting at the defendant’s Ipswich office, that MD had a “mental health problem”. Exhibit 4 is consistent with that event. I am not satisfied by Mr Blackett’s use of the words “mental health problem” that Mr Blackett necessarily believed that MD had a mental health problem. He would have known that his suggestion of such a diagnosis would have appeased the plaintiff. He ought to have known that he had insufficient skill or evidence to justify his amateur diagnosis. In evidence, Mr Blackett was prepared to accept that he must said such things about MD but went further to say, in effect, that he did not agree with what he had said about MD’s mental health.[28] I am not satisfied that on 14 December 2009 that Mr Blackett then knew or ought to have known from what he had witnessed of MD’s behaviour at the meeting on 14 December 2009 that MD might behave with violence towards the plaintiff.
  1. [64]
    That Mr Blackett admitted saying MD had a mental health problem makes it more plausible that at the failed mediation, some aberrant behaviour was likely to have been displayed by MD. It adds plausibility to the plaintiff’s version that MD became angry, raised her voice aggressively and pointed her finger at the plaintiff. Mr Blackett’s saying that MD had displayed a mental health problem is not consistent with the defendant’s pleading. The defendant, presumably on Mr Blackett’s instructions alleged that it was the plaintiff who became angry, raised her voice aggressively at MD, abused and accused MD.[29] Mr Blackett’s reference to MD’s mental health is consistent with, but not determinative of the authenticity of part of the narrative in exhibit 4.
  1. [65]
    In evidence, Mr Blackett accepted that at some time he had “put his hands over (his) face and moaning and saying some things”.[30]That too is consistent with some of the narrative in exhibit 4 concerning a conversation alleged to have occurred at Tara’s house on 14 October 2009, after the failed mediation. Mr Blackett’s evidence and its inconsistency with the defendant’s pleading suggests that at trial Mr Blackett had poor memory of the events of the mediation meeting of 14 October 2009 at the defendant’s office. I infer that at the time Mr Blackett gave instructions, he inaccurately deemphasised MD’s provocation offered to the plaintiff at the mediation and that he had little or no memory of the meeting at Tara’s home an hour or so after the failed mediation.
  1. [66]
    Examination of the page of the photocopy exhibit 4 (and less so on exhibit 22) bearing Mr Blackett’s signature shows that the signature is in the middle of the central section of the page. That central section is bounded by two horizontal and generally parallel lines. Any suspicion that the lines were created by placing a piece of paper containing Mr Blackett’s signature on that third page prior to copying is dispelled by looking at the second page of Exhibit 4. The same lines are visible, in the same positions on the second page. If Mr Blackett’s signature was fraudulently applied, the lines on the third page of the copy letter are not proof of it. The lines on the third and second pages and faint lines on the first too, are consistent with the original letter’s having been folded into three and leaving crease marks which generally divided each page into thirds.
  1. [67]
    The plaintiff seeks to prove that she provided an original letter on about 20 October 2009 to Mr Blackett by proving that she received from Mr Blackett the copy which is exhibit 22. The plaintiff bears the onus of proof of these events on the balance of probabilities. The defendant’s case is that the letter is a fraud. Mr Blackett’s evidence was to the effect that he does not remember receiving an original letter from which the copies in exhibit 4 or exhibit 22 were created. His poor memory of events of that period means that his absence of a memory is of little weight in determining whether an event occurred. Mr Blackett did not go so far as to say that he remembers that no such letter was given to him. His other directly relevant evidence on this issue is that he does not write the handwritten figure “20” as it appears in exhibit 4. There is some corroboration for that by looking at a few examples of the numeral “2” written by him in the material which were different from the “2” in the figure”20” allegedly written by Mr Blackett. I accept that they were different. The difference raises a doubt in my mind as to whether Mr Blackett wrote the “2”. Such doubt as is raised by those matters does not cause me to reject the plaintiff’s evidence of preparing the letter in the days following the events of 14 October 2009 and giving an original to Mr Blackett and receiving from him a copy bearing his signature.
  1. [68]
    The alleged timing and duration of the creation of the letter is plausible. It was allegedly created over six days from and including the day of the failed mediation. That seems to me consistent with the behaviour of a person wanting to set out fully for her employer’s consideration all matters relevant for justifying her ultimatum in the letter. Her demand was to the effect that clients shared by her and MD and or rosters for her and MD be altered to ensure that the plaintiff and MD would not cross paths. The plaintiff’s ultimatum was to the effect that unless her demands were met she would resign.
  1. [69]
    The letter’s assertion of aberrant behaviour by MD at the mediation initially disputed by the defendant, has been shown to have occurred. Mr Blackett’s reaction to MD’s behaviour later at Tara’s house by putting his hands over his head and proclaiming that MD has a mental illness each initially disputed by the defendant, have each been shown to have probably occurred. That there was a meeting at Tara’s house after the failed mediation was initially disputed by the defendant. It has been shown to have occurred. The inclusion of these matters in the letter suggests that the letter was prepared when the plaintiff’s memory of these matters was fresh. While that does not exclude the possibility that it was created after 3 or 20 December 2009, it seems more plausible that it was created before the assault.
  1. [70]
    It is more plausible that it was created before the assault because of what the letter failed to include. It failed to include any allegation of past violence. It failed to allege that the plaintiff feared violence. It failed to expressly allege even a risk of MD’s having a propensity for violence. It failed to suggest that the plaintiff’s mental health was even remotely in jeopardy as a result of MD’s aggression. It failed to suggest that the plaintiff thought MD had mental health issues. Instead, it seized on a quote from Mr Blackett.
  1. [71]
    Further, the letter made the plaintiff, as author seem at the time of writing to be forceful, determined to have her inconvenient demands met and conscious of her perceived value to the defendant. She was requiring inconvenient roster or client changes for her benefit with the ultimatum that she would otherwise resign. That letter was consistent with a letter from the kind of employee she was before the assault: one who confidently believed she was valued by her employer. After the assault she lost her confidence and any belief that she was valued by the defendant. It seems less likely that a forgery after the assault would maintain the confident tone of the letter.
  1. [72]
    It is fraud which the defendant alleges in answer to the plaintiff’s evidence that she gave a letter to Mr Blackett. Even in civil cases “weight is given to the presumption of innocence and exactness of proof is expected” when a party seeks to establish the equivalent of a crime.[31]
  1. [73]
    On the balance of probability I accept the plaintiff’s evidence that on or by 20 October 2009 she gave to Mr Blackett a letter in the same terms as exhibit 4 and 22.
  1. [74]
    That finding does not add strength of the plaintiff’s case that violence or a psychiatric injury to the plaintiff were reasonably foreseeable by the defendant.
  1. [75]
    The letter does not expressly state that MD may physically assault the plaintiff. The letter does not imply a risk that MD may physically assault the plaintiff.
  1. [76]
    The letter does not expressly state that there is a risk to the plaintiff’s mental health. It is not a reasonable inference from the letter that the plaintiff fears for her own mental health.
  1. [77]
    The letter’s content suggests that the plaintiff then had a healthy appreciation of her dilemma. Her dilemma was that she wanted to keep working yet she wanted to avoid MD and the risk of her misbehaviour; that work for the same client that MD worked for meant their work schedules might bring them together briefly at shift changeovers; that work for the same client meant that it was appropriate for MD to make written notes for the plaintiff to read and appropriate to write comments about the plaintiff’s work at Tara’s home. She described how MD had behaved badly towards her, that it led the plaintiff to feel “harassed”. She asked the defendant to deal with her dilemma by either roster changes or even client changes or both and even if it results in a temporary reduction in the plaintiff’s hours. The plaintiff advised that she will resign if the changes are not made. The plaintiff added other descriptions of the effects on the plaintiff’s feelings which MD’s behaviour had caused her: “her behaviour frightens me”, “incredibly disturbed by the way she twisted the meaning of my words” in front of Mr Blackett at the failed mediation, “I don’t have any bad feelings toward (MD)”, “I am frightened of her and do not wish to come in contact with her”, “I no longer wish to make a formal complaint about (MD)”. The plaintiff concluded the letter: “I regard her behaviour and personal comments as petty and unprofessional. I do not wish to continue with any action that would result in meeting with her to discuss these issues. I’d rather put it behind me and move forward. All I want to do is go to work and do my job in peace. Thank you for considering my request to change my rostered shifts so that I might do that.”
  1. [78]
    I do not infer from the letter that the plaintiff was afraid for her own mental health and find that the defendant should not have inferred from the letter that the plaintiff was afraid for her mental health when she wrote it or if the defendant did not achieve what she requested. That is different from the legal issue of whether the defendant should reasonably have foreseen that there was a risk of injury to the plaintiff’s mental health. But the plaintiff’s attitude expressed in the letter is a matter relevant to the issue of whether injury to her mental health was reasonably foreseeable by the defendant six weeks later when MD assaulted the plaintiff.
  1. [79]
    I propose to deal with the four fresh complaints which emerged in evidence on the first day of trial and which had not been the subject of particulars. The plaintiff said that she “reported most of what MD had said and done to David Blackett”.[32]  She said that there were numerous incidents;[33] that one morning she arrived at work and walked down the hallway, that MD jumped and blocked her, that the plaintiff said “Hi” and tried to walk around MD and MD jumped and blocked her again until MD eventually let the plaintiff pass;[34] that another time, MD poked the plaintiff in the back with a broom and said “watch your back”;[35] that another time MD pushed the plaintiff in the breast while the two were in the hallway near the staff toilets but the plaintiff could not recall what that had been about; that another occasion related to the plaintiff’s taking the defendant’s car.  The plaintiff was entitled to take the defendant’s car for certain work related purposes and she and other employees could book a car at the office.  A proper purpose would be to take a client to a medical appointment.  The plaintiff gave evidence of an occasion when MD “sort of roused on me, and she just grabbed my wrists… it was firm, and she sort of twisted”;[36] the plaintiff continued to describe the incident saying “she just grabbed my wrist and was going off about the car.  I can’t remember what she was saying… it was about my use of the car.”[37] 
  2. [80]
    The plaintiff’s counsel later suggested to the plaintiff three things in leading questions: Had MD twisted the wrist? Was it like a “Chinese burn”? Was she “twisting your whole arm or what?”  After the plaintiff had agreed to the first two propositions but not the third, the plaintiff demonstrated with a gesture that did not suggest a “Chinese burn” or anything violent and the plaintiff said “she was just, I guess, grabbing my attention and – I don’t know.”[38]  I was not persuaded that the wrist grabbing episode suggested that MD had a propensity for violence whether judged objectively or as judged by the plaintiff. At best for the plaintiff, I accept the plaintiff’s evidence that by taking her wrists, MD “was just grabbing my attention”. The plaintiff then adopted her counsel’s suggestion that she had reported all those matters to Mr Blackett.[39]  The plaintiff said that Mr Blackett “kind of played them down and said well maybe – maybe you’re overreacting.  Maybe you’re just reading too much into it.”[40]If the plaintiff had provided only those four sketchy details to                  Mr Blackett they should have provoked some questions from him to determine whether they were evidence of aggression. The plaintiff left the impression as she gave her evidence that even she did not know how to interpret the four episodes she so sketchily recalled in her evidence.
  3. [81]
    Mr Blackett denied that the plaintiff raised those matters with him.
  4. [82]
    The defendant denied that, prior to 14 October 2009, the defendant received any verbal complaint from the plaintiff about MD’s conduct, “save that on one occasion the plaintiff complained to Blackett that MD had reorganised items on the desk in the staffroom”.[41]The plaintiff’s counsel persuasively submitted: “One wonders why Blackett would have sent this form to the Plaintiff if prior to 14 October 2009 she had complained to him only once, and only about the fact that MD had reorganised items on the staff room desk? Further, one wonders why Blackett would have bothered to arrange and attend the first meeting on about 14 October 2009 if only one such complaint had been made?”
  5. [83]
    As flawed as the plaintiff’s memory appeared to be, so too did Mr Blackett’s appear. The events prior to the assault would have had much less significance for him. I accept the plaintiff’s evidence to the effect that that the plaintiff made several verbal complaints to Mr Blackett about MD’s behaviour. The complaints may have been about the notes left by MD at Tara’s house and MD’s reactions to the plaintiff’s precautionary shifting of Tara’s rocking chair from its position close to a wall and to the plaintiff’s shifting of MD’s desk calendar and MD’s pointedly shifting it back. Carers were to use books at Tara’s home to leave relevant notes for the subsequent carers to allow them to give proper care of Tara. MD appropriately left notes for subsequent staff to read. A small number of MD’s notes, properly interpreted, were critical of the plaintiff’s competence and tidiness. MD’s notes suggested MD was a few times petty and a few times critical, mostly of the plaintiff. Tara had risked injury by banging her head into a wall while seated in a chair during the plaintiff’s shift. The plaintiff sensibly moved Tara’s chair further from the wall. If MD’s note is to be believed, during MD’s shift, MD saw that the chair was in a different position, photographed the position of the chair and then moved the chair closer to the wall. MD’s note implied that MD was critical of the plaintiff as a carer and had photographic evidence available of what the plaintiff had done or permitted. Individually and more so cumulatively, the notes and conduct are likely to have provoked the plaintiff to mention them to her supervisor, Mr Blackett. Individually and cumulatively, MD’s criticisms appeared as symptoms of MD’s pettiness and her dislike of the plaintiff. The notes and conduct did not reasonably lead to the inference that MD was violent or disposed to be violent towards the plaintiff.
  6. [84]
    Whether or not MD did the things which the plaintiff described in the four fresh complaints, the plaintiff omitted to mention them in her letter, copies of which are exhibits 4 and 22, despite drafting the letter over six days and seemingly laying all her arguments before the defendant for demanding inconvenient roster or client changes. She omitted to tell Mr Blackett about them in the telephone conversation recorded on 26 February 2010. She omitted to draw these four incidents to the attention of her lawyers during preparation for trial. She omitted to tell the medical experts who saw her. She omitted to mention them in evidence before lunch on the first day of trial. I am not persuaded that the plaintiff raised any of those four incidents with Mr Blackett. I accept that the four fresh incidents recalled by the plaintiff were based upon events which had occurred. The plaintiff’s failure to mention them until such a late stage means that I am not satisfied that any of the incidents caused the plaintiff to infer a risk of violence to her or a need to alert Mr Blackett that there was cause to fear violence. I am not satisfied that the plaintiff drew any of the four fresh incidents to the attention of Mr Blackett.
  7. [85]
    The plaintiff has not established that the defendant had notice from the plaintiff orally or by letter that MD had demonstrated aggression to the plaintiff or any other person of a kind which involved violence or even physical touching. The defendant alleged that any “verbal communication which the Plaintiff may have made to Blackett did not alert the Defendant to any risk that MD may physically attack the Plaintiff”.[42]I so find.
  8. [86]
    Neither by the oral communications which the plaintiff has established making, nor by providing to Mr Blackett the original of the letter copies of which became           exhibits 4 and 22, did the plaintiff alert Mr Blackett to any matter from which Mr Blackett or the defendant should have concluded there was any risk that MD was more likely than any reasonable person to physically attack the plaintiff.
  1. [87]
    The plaintiff’s pleadings alleged that after the meetings of 14 October 2009, Mr Blackett altered the rosters of the plaintiff and MD to remove MD from caring for the client and, inter alia, to ensure that the plaintiff and MD did not cross paths when changing shifts.[43]That allegation is only partly correct. Mr Blackett tried to do so. He gave instructions to the roster clerk. It was difficult to arrange where it was a priority to maintain continuity of carers for Tara and other clients and where there were few carers with whom Tara had continuity of relationship. On 3 December 2009 the roster had required a different carer, not MD, to precede the plaintiff’s shift at Tara’s house. MD was called in to replace that carer who was sick.[44]
  1. [88]
    The plaintiff gave evidence that there were only two occasions prior to the assault, when she saw MD at work again. Once was on Melbourne Cup Day in 2009 and there was another day when they crossed over at the end of a shift. I reject that evidence. There were numerous crossovers between MD and the plaintiff at the end of shifts in late October and November 2009.
  1. [89]
    What did the plaintiff remember of her contacts with MD after 14 October 2009? 
  2. [90]
    The plaintiff gave evidence of the first occasion after Mr Blackett offered to change the roster that she remembered crossing over with MD; that it puzzled her because she thought Mr Blackett was not going to put the plaintiff and MD on a cross over; that she thought “maybe they’re in the process of changing the rosters.”[45] 
  3. [91]
    The plaintiff gave evidence of one further contact. “I remember having contact with MD on the 5th.  That was Melbourne Cup Day… And another day.”[46] The Melbourne Cup was run on the first Tuesday of November in 2009.  That was Tuesday 3rd November 2009.  Why did the plaintiff say that it was on the 5th?  On the morning of the first day of trial, counsel for the defendant in argument about the pleadings said, while the plaintiff remained in the courtroom,  that the plaintiff and MD had crossed paths on October 22, 24 and 25 and on November 5 and 19.[47]  On the afternoon of the first day of trial when the plaintiff was asked to give evidence of when she had contact with MD she said “I remember when that fellow was talking about the – what dates… 22nd, 24th and 25th, I think and then he said the 5th and something else”.[48]  It was her knowledge that the defendant had records suggesting more cross overs than she that which prompted her to suggest that the day of the Melbourne Cup in 2009 was 5 November.[49]  The plaintiff gave evidence of what she saw and felt and suspected on the day of the Melbourne Cup; that she was surprised when Mr Blackett called at the house to pick up the client and the plaintiff to take us to a party at the office; that the plaintiff was a bit shocked when she saw MD sitting there; that her client sat with the client MD was working with and that the plaintiff walked to the other side of the room and stood there.[50]
  4. [92]
    The plaintiff had forgotten eight relevant and uneventful crossovers which occurred after her letter was signed by Mr Blackett on 20 October 2009. In fact, after                             14 October 2009 the plaintiff and MD crossed over on 16, 20, 22, 23, 24 and 25 October 2009 and on 5, 10, 19 and 27 November 2009 without physical incident. It confirms my impression that the plaintiff’s memory was at least as unreliable as one should ordinarily expect from a person recalling events from six years before, unless her memory was refreshed from contemporaneous documents. The plaintiff and MD crossed over eight times without the plaintiff’s having occasion to complain of MD’s behaviour. That inference can be drawn from the plaintiff’s failure to give evidence of any occasion to complain and from her instructions to her solicitor.[51] I find that in spite of cross overs 8 times after 20 October 2009 and one Melbourne Cup function at which the plaintiff and MD were guests, there were no further complaints or incidents which put the defendant on notice of a risk of assault or any other injury arising from the plaintiff and MD being so rostered that they would meet at change over.    
  1. [93]
    At about 7 a.m. on Thursday 3 December 2009, in the course of her employment, the plaintiff attended at Tara’s premises to commence her 6 a.m. to 12 noon morning shift to care for the client.  Unbeknown to the plaintiff, MD had been rostered by                          Mr Blackett to care for the client at the premises for the previous overnight shift. 
  1. [94]
    The plaintiff gave evidence that at that time at Tara’s premises on 3 December 2009:
  1. the plaintiff saw MD’s car there and was tempted to drive home. Instead she went in. The shift changeover occurred without incident with MD leaving the premises and the plaintiff locking the front door behind her, but not the garage roller door;
  1. a short time later, MD had re-entered and was saying that she had lost her purse, looking ominously at the plaintiff; that MD made a phone call and returned; that the plaintiff asked where MD had lost it, how she could help and whether MD had retraced her steps; that MD began speaking quickly and incomprehensibly until MD started repeating the question “Why don’t you just bring it back to me?”; that the plaintiff replied “Why don’t you tell me what you really think MD?  You need to either ring the police or you need to ring David Blackett.  You need to ring the office.  You need to get somebody here that… can help you with this, because I can’t help you with this”; the plaintiff then walked away and attended to the client; that the plaintiff then called the defendant’s emergency after hours on-call number but nobody answered; that the plaintiff may have called Mr Blackett without an answer; that MD appeared in front of the plaintiff again speaking quickly and poking the plaintiff in the chest; that the plaintiff raced into the kitchen and closed the glass sliding door and locked it saying to MD “you need to call the police”; that MD walked away, shoving the client in the chest; that the plaintiff calmed the client, walked her out the front door and put her in the back of the plaintiff’s car and strapped her in and was putting something into the back seat of the car when MD came out of the house and got into the driver’s seat of the plaintiff’s car and put her arms around the steering wheel; that the plaintiff asked her to stop because she was scaring the client and the plaintiff and that MD needed to ring the police and get out of the car;
  1. MD kicked the plaintiff; that the plaintiff fell over and MD jumped on her and scratched at the plaintiff’s throat; that the plaintiff stood and grabbed the driver’s side seatbelt for support as MD held the plaintiff’s ponytail and ripped at the plaintiff’s clothes, ripping off the plaintiff’s shirt; MD hit the plaintiff’s head into the car and the ground;
  1. The plaintiff got into the driver’s seat but MD followed her into the seat and was pushing, grabbing and hitting the plaintiff as the plaintiff tried to manoeuvre across the centre console into the passenger seat; that Tara grabbed MD and began hitting MD and yelling; that MD punched Tara in the face; that the plaintiff was again out of the car on the gravel with MD punching and kicking and scratching her; that the plaintiff took hold of MD, swung her and released her so MD fell and the plaintiff took that opportunity to enter the car, lock the doors and drive off;
  1. afterwards, the plaintiff rang the police and reported an assault by MD upon her;
  1. after that, the plaintiff rang Mr Blackett to advise that she and Tara were going to hospital and that MD had attacked Tara and the plaintiff; and
  1. the plaintiff drove to the Ipswich General Hospital where the plaintiff was treated in the emergency department.
  1. [95]
    I accept the plaintiff’s evidence as generally accurate about those events at Tara’s premises. The plaintiff’s surprise at seeing MD’s car at the premises is consistent with an unexpected change of roster due to a rostered carer being too sick to attend.
  1. [96]
    On 3 December 2009 Mr Blackett made a note which he completed at about 12.27p.m.[52]  The note recorded that the staff member involved was the plaintiff and that others involved were MD and Tara.  The note recorded:

I received a phone call this morning from Toni Govier on Tara’s mobile at approximately 7.30am.  Toni sounded very distressed on the phone.  She stated that she had been attacked by (MD).  She had called the Police and was going to the hospital… I got to the hospital and spoke to Toni again who informed me… she needed some clothes because they had been torn off her by (MD)… I noticed (MD) had a small amount of blood on her forehead.  Toni Govier had a wound near the top of her head, blood down the side of her face and on her clothes.  Tara appeared okay, I stayed with Toni until she was seen by hospital staff.  I heard her say to them that what had occurred was – ((MD) had left her shirt and then returned to the house looking for her bag.  There was an accusation that her bag was stolen by Toni.  Toni had said she did not have her bag.  (MD) then went and sat in Toni’s car.  Toni asked her to get out of her car and has tried to get the neighbour’s attention… She stated that (MD) attacked her and that there were witnesses in the street who saw what occurred but took no action.  I left her then to get medical attention and took Tara home… Tara said to me along the way that (MD) had hit Toni.  On getting to Tara’s place I witnessed Toni’s shirt crumpled up in the staffroom, on the desk.  It appeared torn… I also noticed one black shoe lying in the dirt in Tara’s front yard which I left alone.

  1. [97]
    A reasonable inference from Mr Blackett’s note is that he was aware that the plaintiff was alleging that she was the victim of an unprovoked violent attack and that the client, Tara, corroborated that MD had hit the plaintiff.
  1. [98]
    The defendant’s regional manager, Ms Evans, became aware that there had been a violent struggle at Tara’s house involving the plaintiff and MD. Ms Evans was aware that the defendant’s HR department had a policy to resolve matters quickly. Using the wording she was instructed to use by the HR department, Ms Evans prepared a letter dated 3 December 2009[53] and had it hand delivered to the plaintiff’s home that afternoon.  The plaintiff’s flatmate took it from the plaintiff’s home to the plaintiff at hospital at 4.30p.m.  The plaintiff was not contacted by anyone from the defendant that afternoon to ask after her health.  Mr Blackett had stayed with the plaintiff only until she was seen by hospital staff.
  1. [99]
    The plaintiff read the letter from Ms Evans at the Ipswich General Hospital on 3 December 2009.  The letter advised, among other things:
  1. the plaintiff was required to attend an investigation interview at the Ipswich office at 11 a.m. on 4 December 2009 to discuss an incident “which involved a physical and verbal altercation between yourself and another staff member”;
  1. the plaintiff was entitled to bring a support person with her to the meeting though the person was not to be another employee of the defendant;
  1. an investigation into “your conduct is currently being undertaken”;
  1. the plaintiff was directed not to discuss the incident with any other employee of the defendant;
  1. while the incident was being investigated, the plaintiff was stood down on full pay and was directed not to enter any Lifeline houses or worksites; and
  1. Carole Evans, the defendant’s regional manager, had arranged for three counselling sessions to be provided to the plaintiff at no cost through the defendant’s employee assistance program; the plaintiff could call Interlock on a number supplied in the letter to arrange a convenient time; that the plaintiff was under no obligation to use the services; and that they were available if the plaintiff believed they would be of assistance.
  1. [100]
    The plaintiff felt attacked when she read the letter. She was aware that no one from the defendant came to the hospital, that no one came to her home, telephoned her, or sent her a message or an email, and that she received no messages to suggest that anyone wondered about her condition or cared about her. She was aware that no one contacted her family with questions and that Mr Blackett did not come back to hospital.
  1. [101]
    The plaintiff did not give evidence of having taken advantage of the offer of three counselling sessions.
  1. [102]
    If the events of 3 December 2009 at Tara’s house and the hospital were as they have been described by the plaintiff in her evidence, she was the victim of an unprovoked, violent assault by MD. I am satisfied that the events of 3 December 2009 were generally as they were described by the plaintiff in her evidence.
  1. [103]
    Mr Blackett heard the plaintiff at hospital by 12.27 p.m. on the day of the assault tell hospital staff her version. He heard her say that she had been attacked by MD.
  1. [104]
    The defendant, knew or ought to have known that the plaintiff had a version of events and that the plaintiff’s version may be both true and different from MD’s. It knew or ought to have known that the plaintiff’s injuries and hospitalisation may have been through no fault of her own.
  1. [105]
    She may have benefitted from the counselling if she had accepted it. If it is the case that expressions of sympathy and support would have had a protective effect as Dr Curson opined, I infer that prompt counselling would also.
  1. [106]
    The plaintiff’s daughter, Rani visited her mother at the Emergency Department of the Ipswich General Hospital on 3 December 2009 and took some photographs[54] using her mobile phone. The plaintiff was missing her mobile phone and some items of clothing.  Rani rang Mr Blackett after she left the hospital in the afternoon.  She gave evidence of recalling that he said “I just feel terrible.  Your mum had said things to me about this sort of behaviour and I feel like if I had done something about it, this wouldn’t have happened.”[55]  Rani was first asked to recall this conversation when she met the plaintiff’s counsel.  As the proceeding commenced in 2014, I infer that Rani’s meeting with counsel was no less than 3 years after the speaking with Mr Blackett.  Rani made no contemporaneous note of her conversation with Mr Blackett.  She accepted that she could not remember her entire conversation verbatim.  She had talked with the plaintiff numerous times in the last six years about the case.  They had talked also about what each remembered.  The significance of this conversation with Mr Blackett is that it relates to the issue of whether a physical assault by MD upon the plaintiff was foreseeable by Mr Blackett before 3 December 2009.  I draw no inference adverse to the defendant on this issue from these recollections by Rani. I am not satisfied that Rani could recall the conversation reliably after such a period, especially after her memory will have been influenced by so many discussions with the plaintiff.
  1. [107]
    The plaintiff was discharged from hospital on 4 December 2009. She felt like a “zombie” and had a migraine which gave her a pounding head and made her nauseous.  She went to the GP’s office and vomited.  She could not hold anything down, including her heart medication. She did not have her mobile phone which she had left at Tara’s house. She telephoned Mr Blackett. Mr Blackett told her that he had found her mobile phone at Tara’s house.
  1. [108]
    The plaintiff vaguely recalls Mr Blackett advising her by phone to go to the scheduled meeting. The plaintiff was not sure about this. I do not accept that it occurred because it is not recorded.[56] On Friday 4 December 2009 the plaintiff did not attend the investigation interview she had been required by letter to attend. She received a medical certificate that she was totally incapacitated for work that day.
  1. [109]
    On 4 December 2009 at 4:29p.m., the plaintiff received a call from the defendant’s office advising her of a meeting scheduled for Monday 7 December at 10:00a.m..
  1. [110]
    On Sunday 6 December, at 1:07p.m. the plaintiff received a text from Mr Blackett strongly urging her to attend the meeting on Monday and at 3:33pm the plaintiff received a telephone call from Ms Evans, strongly advising her to attend the meeting on Monday.  The plaintiff asked Mrs Evans if she was going to ask how she was doing. That led Ms Evans to ask.  The plaintiff said she was sick and not going to attend. The plaintiff believed that Mrs Evans was not interested in her health.  The plaintiff rang Ms Evans later and said she would attend the meeting to get it over with.
  1. [111]
    But on Monday 7 December 2009 the plaintiff did not go to the meeting because she was too sick.  She telephoned Ms Evans and cancelled the meeting.  Ms Evans asked the plaintiff to provide a doctor’s certificate and asked for an indication about when the plaintiff could be interviewed. The plaintiff made an appointment to see her GP at 11:45am.  She obtained a medical certificate, a WorkCover certificate and a referral for a CT scan and an x-ray. She was certified not able to work at all from                                     7 to 21 December 2009.  The diagnosis in the certificate was “pain in various area from physical assault” with a stated cause of injury “3rd Dec Unprovoked attack by co-worker bashed in different places hit head against ground and car”.
  1. [112]
    On Wednesday 9 December 2009 Ms Evans, Mr Blackett’s manager Ms Negrello and MD met in the morning.  Ms Evans confirmed the minutes[57] of the meeting to be an accurate record.  It emerges from the minutes that MD accused the plaintiff of pushing MD, of ringing the police and falsely saying that MD was abusing the plaintiff, of later pushing MD out of the plaintiff’s car, of biting MD on the arm, of kicking, pushing and holding MD and of praising Tara for trying to hold MD.  MD also accused that the plaintiff had been shouted at MD at work in the past and that problems occurred only when there was a changeover which involved MD and the plaintiff.  A changeover is a change of shift. 
  1. [113]
    On Wednesday 9 December 2009 the plaintiff made an application to WorkCover by telephone.
  2. [114]
    On Friday 11 December 2009 the plaintiff made an application to WorkCover for compensation and it described the genesis of the injury as “Beaten up by another staff member”.  To this date, the Plaintiff still had not received a home visit from anyone from the defendant.[58]  The plaintiff considered this to be “highly relevant.  I had just been attacked on my work premises and nobody phoned me.  Nobody visited me.  Nobody enquired about me.  They just gave me letters to say you’ve got to be at this meeting. …It upset me. … I was too sick (to go to these proposed meetings). … I couldn’t think straight.  I was highly emotional.  I was throwing up.  I had a really bad headache.  I’d just gotten out of hospital and taken heart medication which triggers migraines.  I was taking painkillers. …I wasn’t able to talk to anybody.”
  1. [115]
    On about Friday 18 December 2009 the plaintiff received a further letter from                          Ms Evans on behalf of the defendant dated 11 December 2009.[59]  It was by way of an express post envelope.  The plaintiff “read down to where they said I was fighting, then I stopped. … It says you had a fight, and I didn’t have a fight. I was attacked. … I think I cried. I was angry.  I was angry about what they wrote about the client.”[60]
  1. [116]
    The letter advised, among other things:
  1. that the plaintiff had “refused” to attend the defendant’s office on 3 and 8 December 2009;
  1. in the absence of any information from the plaintiff regarding the matter, Ms Evans had made preliminary findings based upon the information which had been provided to her by Tara and MD, to the effect that the incident had involved kicking, hitting and pushing by (inter alia) the plaintiff;
  1. Ms Evans had found that the plaintiff had breached the LCCQ Code of Conduct (HRM01), a copy of which code was not attached to the letter despite an assertion therein that it was;
  1. the plaintiff had made “unnecessary and unwelcome physical contact upon” MD, which actions were “completely at odds with (the plaintiff’s) obligations under the Code” and which behaviour was “not appropriate within any workplace”;
  1. the plaintiff had “engaged in behaviour of a violent and inappropriate nature”;
  1. the plaintiff’s behaviour “reflected poorly upon (her) professionalism and ability to resolve disputes within the workplace appropriately and (her) ability and willingness to work cooperatively with others”;
  1. Ms Evans was “very disappointed that (the plaintiff) involved the client in the altercation and the damage that has occurred as a result of the client being witness to her support staff hitting and kicking each other” which “set an extremely poor example and given the amount of work that has been spent on discouraging the client’s use of aggressive behaviour (the plaintiff’s) actions have severely undermined this good work”;
  1. Ms Evans was of the view that the plaintiff’s “behaviour has damaged the employer/employee relationship to such an extent that (her) employment cannot be continued”;
  1. before a “final determination” was made by the defendant’s Operations Manager Ms Evans “would like to provide to (the plaintiff), in accordance with the LCCQ Termination Policy (HRM09), the opportunity to offer information or an explanation that (the plaintiff) feels is important about the said incident and her participation in it and the opportunity to advise Lifeline why your employment should not be terminated”;
  1. the plaintiff had “until close of business Wednesday 23 December 2009 to provide, in writing, your information or explanation about this incident, together with reasons as to why your employment should not be terminated”;
  1. if the plaintiff was “unable to due to health reasons to respond or to respond within this timeframe” to let Ms Evans know;
  1. the plaintiff would “not be able to return to work until (she) had complied with the requirements of this letter and (the defendant) had had the opportunity to review any response” provided by her;
  1. it was noted that while the plaintiff was then on leave, if she were not on leave she would be suspended until the matter was resolved; and
  1. the plaintiff was directed not to have “contact with MD or any other staff member or client or client’s family” unless (she) had Evans’ express written approval which had not been given by Evans at that time.
  1. [117]
    The letter’s suggestion that the plaintiff had “refused” to attend the defendant’s office on 3 and 8 December 2009 was inconsistent with the facts.  On Monday 7 December 2009 the plaintiff did not attend a meeting scheduled for that day but telephoned Ms Evans to cancel and in that telephone conversation Ms Evans asked the plaintiff to provide a doctor’s certificate.
  2. [118]
    It was a false and misleading oversimplification which the defendant knew or ought to have known to write that the plaintiff had refused to attend meetings the defendant had instructed her to attend.  She was too ill to attend meetings on 4 or 7 December 2009. By 11 December 2009, the date of the defendant’s letter,[61] the defendant knew or ought to have known that the plaintiff had asserted that she was too ill to attend the two meetings she failed to attend.
  3. [119]
    On Monday 21 December 2009 the plaintiff received another workers compensation certificate that she was not able to work from 21 December to 4 January 2010 with a diagnosis “Acute stress reaction following physical assault”. 
  4. [120]
    On Tuesday 22 December 2009, the day before Ms Evan’s deadline for the supply of reasons why her employment should not be terminated, the plaintiff retained her solicitor to seek an extension of time for the meeting with the defendant on                               22 December 2009.  He was not then retained to institute a legal proceeding.                              Mr Bradley’s evidence was to the effect that the retainer was not to institute a proceeding but only to respond promptly to the letter which required the plaintiff to attend a meeting next day, but that he was aware the plaintiff had another document or documents with her, other than the letter from Mrs Evans dated 11 December 2009. I accept that Mr Bradley did not read or retain any other documents because of his limited retainer. Mr Bradley’s memory that the plaintiff brought other documents is significant for its value as corroboration the plaintiff’s evidence that she took with her the photocopy letter of her complaint to Mr Blackett bearing the photocopy date 20/10/09. If she took that letter to Mr Bradley it would be evidence that it was not concocted later to improve the plaintiff’s prospects of success in litigation. It is a letter which the defendant submits was manufactured after the assault. Mr Blackett does not remember receiving the plaintiff’s letter and he denies applying the handwritten “20/10/09” which appears in photocopies of the letter.[62]
  5. [121]
    Mr Bradley made no notes on 22 December 2009 of what other documents the plaintiff brought and did not read them. The issue of whether the plaintiff’s letter allegedly signed on 20 October 2009 was a concoction did not arise for years. I do not regard Mr Bradley’s recollections at trial of what the plaintiff carried six years before as reliable. I am not satisfied by Mr Bradley’s evidence that the plaintiff brought a version of the letter she allegedly received bearing Mr Blackett’s signature. I am satisfied by the plaintiff’s evidence that she brought it.
  6. [122]
    On 22 December 2009 the plaintiff’s solicitor wrote to Ms Evans at the defendant’s office advising that the plaintiff instructed “that she is currently prevented by ill-health from providing the written information/explanation for the incident described in your letter or her reasons as to why her employment should not be terminated.  She is likely to be unable to do so until 21 January next.  A copy of her medical certificate is enclose.  My client… has instructed me to request an extension for doing so until 31 January 2010.  In the meantime, my client does not intend to return to work because of the ill-health… as you know, my client has lodged an Application for Workers’ Compensation.”
  7. [123]
    On 4 January 2010 the plaintiff received another workers compensation certificate certifying that she was not able to work from 4 to 18 January 2010 with a diagnosis “Acute stress reaction following physical assault”.
  8. [124]
    On 12 January 2010 the plaintiff first saw the psychologist Ms Roots.  She subsequently had another 15 consultations.[63]  
  9. [125]
    On 27 January 2010 the plaintiff’s solicitor again wrote to the defendant that the plaintiff “instructs me that because of continuing ill health, she remains unable to provide the information sought in your letter of 11 December last.  She has asked me to request a further extension for doing so. I request an extension to 28 February next.”
  1. [126]
    The plaintiff made a note. She estimated that she made it in January of 2010 and that it was after her sister had urged her to take legal action and her brother in law had urged her to sit down and write out everything. The note is of her recollections of the events of early December 2009.  She used it to refresh her memory. The note contains precision which suggests that it was created by reference to mobile phone records. It was tendered.[64]
  1. [127]
    The plaintiff’s injuries were such that she was not able to attend an investigation interview on 4December 2009 or18December 2009.
  1. [128]
    On 28 March 2012 the plaintiff’s employment was formally terminated by the defendant.[65]  The plaintiff had not returned to work after the assault.  On 9May 2012 the plaintiff received a lump sum payment from work Cover of $68,263.75.  By 11 May 2012 the plaintiff had received $101,790.85 gross ($80,855.85 net) from Work Cover since 4 December 2009.      
  1. [129]
    Doctor Curson’s opinions in her report on 11 December 2014 were the most recent written opinions. The opinions were impliedly based upon the relevant background information set out in the large paragraph which commences on the second page and concludes on the third page of that report.[66]  The relevant background information set out does accord with the evidence as I find it to be, with one exception.  The plaintiff advised that after she gave Mr Blackett a letter on 20 October 2009 she did not see MD again for several weeks.  It is incorrect that she did not see MD again for several weeks.  They crossed over about 8 times without physical incident between                          20 October and 3 December 2009 and were both guests at a Melbourne Cup party on 3 November 2009.  Significantly, I accept that the plaintiff gave Mr Blackett a letter on 20 October 2009, that he signed it and eventually returned exhibit 22 to the plaintiff.  Dr Curson’s relevant background information was:

Mrs. Govier had been working for Lifeline Community Care for 9 months as Disability Carer.  Two to three months prior to the incident she requested help from her Supervisor as she felt she was being targeted and harassed by another worker, (MD). She was frightened of (MD) as she found her unpredictable and hostile towards her.  She outlined her concerns and the processes undertaken to resolve the matter in a letter to her Supervisor dated Blackett, which she gave to him on 20 October 2009.  In this letter she requested that she be rostered to insure she did not come into contact with (MD).  She did not see (MD) again for several weeks.  However on the day of the incident (MD) was doing the shift before Mrs Govier.  She returned to the house after shift change-over and an altercation ensued during which (MD) accused Mrs.Govier of stealing her handbag, and according to Mrs. Govier imitated a vicious assault on her.  During her assault her clothes were ripped by (MD). The client was also injured during the altercation but apparently not seriously.  The assault appeared to be quite prolonged and Mrs.Govier was very frightened, particularly as she developed chest pains during the assault.  She had a past history of a myocardial infarction and she genuinely feared for her life.  She was eventually able to ring 000 and get the client into the car and escape to the Ipswich General Hospital.  The Police interviewed her at the hospital but she was dissuaded from pressing charges.  They said that her co-worker had accused her of attacking her and it would be difficult to prove the charges.  While at the hospital Mrs.Govier received the first letter from her Manger Mrs. Evans dated 3 December 2009.  A friend had brought it up to the hospital for her.  She felt “attacked” by the letter which appeared to be calling into question her conduct.  She felt “abandoned” by her employer and disappointed that no-one appeared to be interested in her welfare or recovery from the attack.  She remembers that at one stage the Regional Director called her and was “babbling on about policies”.  Mrs.Govier found the interaction not only unsupportive but confusing and explicable.  Given her history of requesting support and change of roster to avoid (MD), and the fact that she had called 000 requesting assistance, she could not understand how the incident could be misinterpreted as Mrs.Govier initiating an attack.  She was unable to reply to the second letter of 11 December 2009 due to the distress the accusations of misconduct caused her. 

  1. [130]
    It is notable that Dr Curson did not include in the relevant background four fresh matters of fact. They were the disputed oral reports by the plaintiff to Mr Blackett of the four alleged episodes of physical actions and touching by MD.
  1. [131]
    It is Dr Curson’s opinion that since the incident the plaintiff developed a post-traumatic stress disorder and a major depressive disorder and that as a consequence of those disorders she was unable to return to work, Dr Curson opined[67] that:

the incident was of such severity that a person of ordinary fortitude would have been at risk of suffering a psychiatric injury.  Mrs Govier was at increased risk due to her past history of trauma and her angina… The timing, manner and content of the letters most likely aggravated the trauma of the assault. Mrs Govier felt that, not only had she been assaulted due to being placed in a position of danger by her employer, she was now being blamed for the assault and accused of unprofessional behaviour… the response to the incident by management appeared to have been solely administrative and lack of other responses appears to have worsened the injury.  The consensus   of opinion on psychological first aid for people who have been traumatised is that they be provided with a place of safety, psychological support and the opportunity to talk if the wish to.  It is perhaps foreseeable that if this doesn’t occur the patient would be more vulnerable to develop psychological sequelae from trauma… following the assault and the aftermath Mrs.Govier has developed Moderately Severe Post Traumatic Stress Disorder and Major Depressive Disorder… Five years after the assault she remains disabled by psychological symptoms of anxiety, hyper vigilance, poor sleep, low energy, poor concentration, depressed mood, agoraphobic symptoms, and flashbacks… it is my opinion that the perceived lack of support from management, accusations of unprofessional conduct, and termination of employment have aggravated her conditions… the sense of injustice and betrayal has deepened her distress, depression, and aggravated her anger with regard to the situation.  She continues to feel frightened of further assaults and deeply distrustful of management.  This has serious implications for her future ability to participant in any employment or to live a normal life… the provision of the letters and the incomplete investigation into the matter have aggravated her conditions by adding to the trauma she has suffered.  If the incident had been handled differently and Mrs.Govier had felt support by management she would most likely not have developed such severe disorders… While Mrs.Govier was in the hospital and physically safe, unfortunately the provision of the letter in hospital and the second following week aggravated her trauma as she saw it has a fresh assault on her.                               

  1. [132]
    I accept Dr Curson’s several opinions in the paragraph above. Dr Curson found at least two causes of the plaintiff’s “Moderately Severe Post Traumatic Stress Disorder and Major Depressive Disorder” and “five years after the assault” her “psychological symptoms of anxiety, hyper vigilance, poor sleep, low energy, poor concentration, depressed mood, agoraphobic symptoms, and flashbacks”. One cause was the assault. Another was the timing, manner and content of the employer’s two letters. I accept those were two causes of the plaintiff’s injuries.
  1. [133]
    The opinion is that there was also a third, fourth and fifth cause of loss: the plaintiff’s perceived lack of support from “management”, “the incomplete investigation” and the “termination of employment”. While the timing, manner and content of the defendant’s two letters was in issue in the trial there was no separate issue that the employer had a duty to provide support or to complete its investigation or to prevent the plaintiff’s employment from terminating. I am satisfied that Dr Curson’s reference to “the incomplete investigation” was intended as a reference to the failure to complete the investigation by taking evidence from the plaintiff and to make further findings based on the whole of the evidence. She clearly assumed that the plaintiff’s evidence would be accepted by the employer. I am satisfied that Dr Curson’s reference to a perceived lack of support was intended to refer to the plaintiff’s perception that the defendant failed to support her. If Dr Curson had something else in mind, such as positive steps the defendant should have taken, it was not explored with her and it was not a topic explored with any other witness and it was not an issue in the proceeding. Dr Curson explained in her report of 11 December 2014[68] that she “cannot comment meaningfully on how management could have handled the matter differently”. As for the fifth cause of loss, it was not explained or explored. Dr Curson did not refer to a dismissal but to a termination of employment. She did not clarify whether she meant on the fourth of December 2009 or on some later date or whether she meant by “termination”, a failure to return to work for a sustained period. I infer that it was the latter. The failure to resume employment is notorious for affecting recovery from such psychiatric disorders as the plaintiff suffered. It is not obvious whether the plaintiff would have been able to return to work in the short or medium or long term after the physical and psychiatric injuries caused by MD, independent of the aggravation caused by the plaintiff’s receipt of the two letters. It follows that Dr Curson’s opinion was not clear about whether the failure to resume employment was an aggravating factor, independent of the timing, manner and content of the defendant’s two letters.
  1. [134]
    The plaintiff pleaded (and proved) two distinct causes for her loss: The assault and a second cause, namely the timing, the manner and the content of the two letters sent by Ms Evans and received by the plaintiff on 3 and 18 December 2009. The plaintiff’s written submission was based, primarily, upon proof of those two events.[69] The second cause, being the timing, the manner and the content of the two letters, does not include the defendant’s conduct between the receipts of the letters or the defendant’s conduct after receipt of the second letter on 18 December 2009. But in a couple of places, the plaintiff’s submissions strayed into this territory, as had the defendant’s submissions which were delivered first.[70]
  1. [135]
    The plaintiff’s submissions also included criticism of the reasonableness of the defendant’s conduct after the delivery of the second letter,[71]for failing to send a letter of apology.
  1. [136]
    The plaintiff also submitted[72]that her cause of action was based upon the defendant’s “duty to assist her to recover her health” and the defendant’s failure to take steps to support or care for her in the immediate post-incident period and the defendant’s failure to provide her with a place of safety, with psychological support and with an opportunity to talk if she wished.
  1. [137]
    The plaintiff did not expressly plead that the employer’s failure to cause management to provide support to the plaintiff during the period of its investigation was a cause of her loss. Had there been such an allegation one would expect that there would have been a factual exploration of what management should reasonably have done: for example, whether it was reasonable to identify whether there were employees sympathetic to the plaintiff and to instruct them to visit the plaintiff. The other employees may have each been as quick to conclude that the plaintiff was culpable as was Ms Evans. Would it have been reasonable for management to send to the plaintiff supportive messages or to otherwise do things to create in the plaintiff a perception of support? Would it have been reasonable for management to give the plaintiff “an opportunity to talk” separately from the hearing it was directing and encouraging the plaintiff to attend? If so, when should management have given the plaintiff the opportunity to talk and to whom? Was an opportunity to talk to a counsellor in three free sessions an insufficient opportunity to talk? Should management have brought its inquiry into the hospital or to the plaintiff’s home to give her an opportunity to talk? For how long was management required to be supportive? One would expect there to have been exploration of whether such supportive steps as were reasonable would have counteracted the damaging letters.
  1. [138]
    Did the plaintiff impliedly allege that the employer’s failure to cause management to provide support to the plaintiff during the period of its investigation or at any other time was a cause of her loss? The plaintiff’s pleading included some “ambit” style allegations. As wide as they were, they did not raise the issue that there was a failure to provide support. I refer to the pleaded allegations that injuries were caused by the employer’s failing to take adequate precautions for her safety, and to provide a safe system of work “during its subsequent investigations of the … incident.”[73] There were other ambit allegations to the effect that the employer should have better informed itself of the plaintiff’s state before sending its letter dated 11 December 2009[74] and “conducting an investigation the results of which were communicated to the plaintiff without waiting to receive any information from or on behalf of the plaintiff…which investigation concluded” by communicating to the plaintiff harsh criticisms of the plaintiff knowing it was likely to cause the plaintiff “to further decompensate”.[75]The plaintiff pleaded that there was a failure to properly manage her exposure to risk as required by section 27A of the WHSA and the Risk Management Code by deciding on appropriate control measures to prevent or minimise the level of risk of injury to the plaintiff and implementing them.
  1. [139]
    It seems to me that by those ambit allegations the plaintiff did not, even impliedly, allege that management should have supported the plaintiff emotionally or that management should have taken steps so that the plaintiff would perceive management to be supportive.
  1. [140]
    I have digressed to deal with matters the plaintiff did not plead. It was appropriate because the plaintiff’s submissions strayed into that interesting area.
  1. [141]
    Irrespective of whether the pleading may have been interpreted as capable of extending so far as to include an implied allegation that there was an obligation to provide support to the plaintiff while she was being investigated and a failure to provide support, the case was not fought on those bases. If the plaintiff’s case had been run on that basis and if these matters had been established, they may have provided a factual basis for distinguishing loss caused by an employer’s lack of support from loss caused by an employer’s investigation into potential misconduct.
  1. [142]
    I am not satisfied by the plaintiff that there was any support the defendant should reasonably have provided from the time the plaintiff was hospitalised. The issue was not explored in evidence.
  1. [143]
    Notwithstanding that I am not satisfied that there was any further particular step the defendant ought reasonably to have taken to support the plaintiff, I am satisfied that the timing, manner and content of the employer’s two letters was a cause of the aggravation of the plaintiff’s psychiatric injuries. How the defendant might have conducted an investigation into the plaintiff’s conduct while simultaneously supporting her emotionally and physically was not explored.

Evidence about the plaintiff’s alcohol consumption and its effect on her capacity to work

  1. [144]
    The defendant did not plead alcohol consumption as a cause of loss and made no submission that it was. I note that portions of Dr Kar’s opinions are in evidence and suggest that alcohol consumption is a cause of loss. As it is not an issue I may ignore it. As a precaution I deal with it. I reject those portions of the evidence.
  1. [145]
    There is no direct evidence about whether the plaintiff consumes alcohol. The plaintiff was interviewed by Dr Prabal Kar on 10 February 2010. Dr Kar recalls that the plaintiff told him that she did not use alcohol before the assault but that she told him “I’ve been drinking lots since then. Nearly every day.” If both statements to Dr  Kar were true then it would be reasonable to conclude that after the plaintiff’s discharge from hospital on 4 December 2009 she had consumed alcohol nearly every day for the last 10 weeks of the prior year.  It prompted Dr Kar to ask Ms Govier a series of questions set out in a standard form audit document[76] created by the World Health Organisation to assist to determine risky and high risk drinking.  There were 10 questions.  Depending upon the choice selected from the multiple choices available for each question, a score would be allocated from zero to four.  The aggregate score could be used as a numeric indicator of a subject’s risk.  Dr Kar asked the questions and recorded the answers and allocated the scores and came to a total of 28.  A score of 20 or more is described as “high risk, definite harm, also likely to be alcohol dependent, assess for dependence”.  There were some inconsistencies among the answers recorded in the audit.  Dr Kar was aware of this because he noted in his report:[77] “It is possible that in some areas she has endorsed the higher item.  However, it is likely, based on the AUDIT score, that she would meet the DSM-IV diagnosis for Alcohol Abuse at this time.”
  1. [146]
    The plaintiff indicated that she drank two to four times a week consuming three to four standard drinks. Inconsistently with those answers she is recorded to have advised that she would have six or more standard drinks on one occasion weekly or monthly. In Dr Kar’s second report[78] he was asked to comment upon a psychologist’s use of the same audit on 27 May 2010.  Dr Kar said of the audit scored by the psychologist that it “appears invalid.  The AUDIT should be scored over the last one year and not on the current alcohol use.”  That same criticism can be made of the AUDIT scored by Dr Kar on 10 February 2010.  Questions 4 to 10 in the AUDIT refer to a year in the question.  Dr Kar relied particularly on the answers to questions 4, 5 and 6 to determine whether the plaintiff was dependent upon alcohol.  Each of those questions assumes a year for the survey.  One can understand how a person who answered that they found they were unable to stop drinking once they had started monthly for a year would suggest the person suffered alcohol dependence.  The same conclusion might not be drawn from a person who was unable to stop drinking twice in the last 10 weeks.  Again, with respect to the answer to question 5 “how often during the last year have you failed to do what was normally expected from you because of your drinking?”  One can see that an answer of “daily or almost daily” would have more significance than if the reference was to the last 10 weeks. AUDIT answers as a diagnostic tool are unreliable unless they relate to a period of a year.           Dr Kar’s reliance on AUDIT answers which did not relate to a year was troubling.
  1. [147]
    Dr Kar’s opinions about the plaintiff’s alcohol dependence based upon the conclusions he drew from the audit he conducted on 10 February 2010 are unpersuasive. I reject them.
  1. [148]
    On 16 July 2012 the plaintiff was interviewed by Dr Karen Chau a psychiatrist. The plaintiff advised Dr Chau that she did not drink alcohol. Dr Chau noted that the plaintiff reported to her “that for a one week period in 2010 she drank heavily on a daily basis 10 days after the assault “as an escape”. She denied drinking alcohol since then.”
  1. [149]
    The plaintiff first saw Dr Curson, psychiatrist on 20 June 2011. She reported to Dr Curzon that immediately after the assault, she drank alcohol to excess for two weeks but was not drinking alcohol at all at the time of the interview.[79]
  1. [150]
    The defendant did not make submissions that the plaintiff’s losses are caused by alcohol consumption. I am not satisfied that the plaintiff has consumed alcohol to any relevant extent.

Liability

  1. [151]
    The analysis of liability issues can proceed on the basis of the following findings:
  1. The plaintiff failed to prove that she told Mr Blackett of the four fresh complaints;
  1. The plaintiff proved that she did give to Mr Blackett on or about 20 October 2009 a letter setting out the matters recorded by her in exhibit 22;
  1. Neither by oral communications nor by that letter did the plaintiff alert Mr Blackett or the defendant to any matter from which the defendant should have concluded that there was any risk that MD was more likely than any reasonable person to physically attack the plaintiff;
  1. The attack on 3 December 2009 was a cause of the plaintiff’s post-traumatic stress disorder and a major depressive disorder and as a consequence of those disorders she was unable to return to work;
  1. The timing, manner and content of two letters from Ms Evans was a cause of the aggravation of those disorders; and
  1. If the plaintiff had not received those letters the severe disorders she developed would not have been so severe.
  1. [152]
    The defendant, as employer of the plaintiff, owed the plaintiff a duty to take all reasonable steps to provide a safe system of work. The plaintiff’s case is primarily based upon the duty to provide a safe system of work.[80]
  1. [153]
    It is not part of the plaintiff’s case that the defendant breached its duty to her by failing to follow the defendant’s procedures for dealing with the plaintiff’s complaint. I mention that because the plaintiff’s submissions strayed into that interesting territory. I need not consider it.
  1. [154]
    The first liability issue is whether an assault by MD upon the plaintiff at work was reasonably foreseeable by the defendant.
  1. [155]
    The plaintiff’s submission did not expressly submit that an assault or violence by MD was reasonably foreseeable.
  1. [156]
    The plaintiff submitted that the defendant should have reprimanded or counselled MD and that would have probably prevented the assault.[81] The plaintiff added a submission “their enforced separation at work was probably the better means of avoiding a real risk of psychiatric injury to the plaintiff, including one consequent upon a physical assault by MD”. It is unclear whether the plaintiff meant to imply that assault or a physical injury was reasonably foreseeable.
  1. [157]
    I infer that the plaintiff submits that injury of at least a psychiatric type was reasonably foreseeable, that the foreseeability of such an injury was such that it imposed a duty on the employer to take reasonable care to prevent psychiatric injury, that if the employer had taken such steps by counselling, reprimanding and enforcing physical separation then it would have prevented psychiatric injury and the same steps would have prevented physical injury too.
  1. [158]
    The plaintiff’s submissions directing attention to how the defendant may have prevented injury draw attention from the condition precedent to a duty to take all reasonable steps to provide a safe system of work: that injury was reasonably foreseeable in the sense that it was not far-fetched or fanciful.
  1. [159]
    It is necessary to consider whether, by 3 December 2009, physical or psychiatric injury to the plaintiff was reasonably foreseeable as a result of interaction between the plaintiff and MD at a shift changeover.
  1. [160]
    The plaintiff did not establish that the defendant had notice from her orally or by the letter signed by Mr Blackett on 20 October 2009[82] that MD had a propensity for a physical assault.  I reject the submission of the plaintiff[83] to the effect that the plaintiff’s letter to Mr Blackett described MD’s behaviour in the workplace as “potentially violent”.  The letter, comprehensively setting out the plaintiff’s descriptions of MD and her conduct, did not use the word “violent” or “violence” either in describing the past or in predicting the future.  After the defendant received the letter, in spite of eight subsequent uneventful crossovers between the plaintiff and MD, the plaintiff did not make further complaint of harassment, fear or dissatisfaction with the defendant’s efforts.  The plaintiff did not advise Mr Blackett that the changed rosters were inadequate. 
  1. [161]
    I am not satisfied that by 3 December 2009 a physical assault by MD on the plaintiff was reasonably foreseeable by the defendant.

Was injury of a psychiatric or psychological kind reasonably foreseeable by 3 December 2009?

  1. [162]
    The correct question is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.[84]  I respectfully adopt what was written by McMeekin J:[85]

The point of the enquiry is to determine whether it was reasonably foreseeable that the conduct complained of was likely to result “in mental anguish of a kind that could give rise to a recognised psychiatric illness” to adopt Gleeson CJ’s words in his analysis of Annetts v Australian Stations Pty Ltd.[86]

  1. [163]
    The plaintiff must have been aware of the crossovers in 2009, even though she had forgotten them by the time of trial. She must have been aware that the defendant had not reassigned either MD or the plaintiff from the care of Tara. All that had occurred, to meet her demands expressed in her letter to Mr Blackett, had been some roster changes to reduce the number of crossovers which brought the plaintiff into contact with MD. In spite of the defendant’s limited efforts over 45 days to accommodate the plaintiff’s written demands, she had not complained further. The defendant was entitled to draw reasonable inferences from the failure to complain. It was reasonable a reasonable inference that the plaintiff’s concerns had abated to some extent.
  1. [164]
    I find that by 3 December 2009 it was not reasonably foreseeable that anticipated contact between the plaintiff and MD was likely to result in mental anguish of a kind that could give rise to a recognised psychiatric illness in the plaintiff.

If the defendant had a duty, was it breached by failing to counsel or reprimand MD?

  1. [165]
    On the hypothesis that my finding is incorrect and that the proper finding should have been that it was not far-fetched or fanciful that contact between the plaintiff and MD was likely to result in mental anguish for the plaintiff of a kind that could give rise to a recognised psychiatric illness, it would follow that the defendant had a duty to take all reasonable steps to avoid such an injury.  On that hypothesis I should examine the steps which the plaintiff submits the defendant should have taken and proceed to determine whether it was reasonable to take those steps and, conversely, whether it was a breach of duty to fail to take those steps.
  1. [166]
    There is authority on how courts should approach this task, so as not to fall into the error of judging a defendant’s conduct only through the unrealistic prism of hindsight. The defendant referred to a helpful passage from the judgment of Keane JA, as his Honour was, in Hegarty v Queensland Ambulance Service [2007] QCA 366 at [49]:

In New South Wales v Fahy, Gummow and Hayne JJ recently emphasised that what an employer acting reasonably must do by way of care for an employee is an issue which ‘requires looking forward to identify what a reasonable employer would have done, not backward to identify what would have avoided the injury.’  One must not lose sight of the important reasons for circumspection on the part of an employer which may reasonably forestall intervention in relation to the mental health of an employee.  These considerations are easily lost from sight once an adverse outcome for the employee has resulted.  It is necessary to resist the inclination retrospectively to find fault by devising chains of causation involving risks which were not reasonably regarded as significant before a particular event has occurred.  In Rosenberg v Percival, Gleeson CJ said:

‘In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted.  The particular risk becomes the focus of attention.  But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed.  Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated (See, eg, Jones v Bartlett (2000) 205 CLR 166 at 176 [19]; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 263 [17], 291-292 [109]). This danger may be of particular significance where the alleged breach of duty of care is a failure to warn about the possible risks associated with a course of action, where there were, at the time, strong reasons in favour of pursuing the course of action.’

  1. [167]
    I consider, firstly, the plaintiff’s submission that the defendant should have reprimanded or counselled MD. Mr Blackett merely extracted from MD, at the failed mediation, an agreement to try to “get along” with the plaintiff. After that date Mr Blackett increased the amount of separation between the plaintiff and MD by changing the rosters to lessen the number of their crossovers at shift changes. The defendant received no further complaint from the plaintiff after 20 October 2009. The plaintiff had demonstrated to Mr Blackett that she was competent to complain if the roster changes were inadequate or if MD caused her further concern. She had demonstrated that competence by her oral complaints preceding 14 October 2009, her request for the defendant’s documents regarding complaint procedure, her agreement to attend an informal mediation and her comprehensive letter of complaint for which she required Mr Blackett to provide a receipt. I am not satisfied that it was unreasonable in the circumstances known to the defendant, including the absence of further complaint by the plaintiff, to have failed to further reprimand or counsel MD after extracting her agreement on 14 October 2009 to try to “get along” with the plaintiff.
  1. [168]
    It was inconvenient to change either MD or the plaintiff from caring for Tara. That would have required introducing either the plaintiff or MD into the schedule of another client. It would have required introducing a new carer into Tara’s schedule. It was difficult to arrange rosters so that MD and the plaintiff could not cross over at a shift change. The fateful cross over on 3 December 2009 was evidence of the difficulty. It was as a result of MD filling in for a carer who had failed to attend as rostered due to illness. To have enforced the separation of MD and the plaintiff after 20 October 2009, as the plaintiff submitted should have occurred, would have meant either terminating the employment of one of them or shortening the hours of one of them or taking one of them off the roster for Tara completely and introducing that employee to another client which had the potential to distress Tara and the substitute client.
  1. [169]
    Looking forward on 2 December 2009, in the whole of the circumstances then known to the defendant, including the plaintiff’s lack of further complaint for six weeks after 20 October 2009, I am not satisfied that the defendant should reasonably have enforced a separation of the plaintiff and MD.
  1. [170]
    It follows that the defendant is not liable for the plaintiff’s loss caused by the assault by MD on 3 December 2009.

Did the timing, manner and content defendant’s letters delivered on                            3 and 18 December 2009 cause injury to the plaintiff?

  1. [171]
    The plaintiff’s submission combined separate matters of duty of care, foreseeability of injury and causation as follows:

212 … the Plaintiff’s case is that the Defendant breached its duty of care to the Plaintiff by serving the first letter on her, in the aftermath of the incident, which conduct amounted to a further “attack” on the Plaintiff, when it knew or ought to have known that the Plaintiff was in a fragile psychiatric state and at risk of further decompensating, by:

  • being summarily required to attend an “investigation interview” as early as the next morning to discuss the said incidents;
  • being directed not to discuss the said incident with any other employee of the Defendant; and
  • being immediately stood down on full pay and directed not to enter into any of the Defendant’s workplaces.

213 Further, before having any further contact with the Plaintiff, and without adequately informing itself as to the Plaintiff’s medical condition, the Defendant prepared and caused to be delivered to the Plaintiff on (18 December 2009) the 11 December 2009 letter, when the Defendant then knew or ought to have known that the Plaintiff remained in a fragile physical and psychiatric state and was at risk of further decompensating on reading the terms of this letter.

…

216 …by the sudden service on the Plaintiff of those letters in such terms, the Defendant wrongly placed her in a position where she perceived she had no support from management, where baseless accusations were made against her of unprofessional conduct, and unjust threats were made against her to terminate her employment. The letters suggested that the Defendant had sided with MD, and the Plaintiff’s sense of injustice and betrayal deepened her distress and depression, and aggravated her condition by adding to the trauma that she had already suffered.

217 …in the light of what the Defendant then knew or ought to have known, the Defendant ought not to have served on the Plaintiff purely administrative type letters which purported to blame her for the assault, and accused her of unprofessional behaviour, in circumstances where the Plaintiff had not yet been afforded an opportunity to provide her version of events. It was wrong to have advised the Plaintiff that she had been found to have breached the Defendant’s code of conduct by making unnecessary and unwelcome physical contact upon another employee; that she had engaged in behaviour of a violent and inappropriate nature which reflected poorly upon her professionalism; and that she had involved the client in the altercations. The Defendant and the Plaintiff knew all of these allegations to be wrong, and that the Plaintiff had not had an opportunity to present her case to the Defendant, and yet the Defendant proceeded to make such accusations and decisions in the Plaintiff’s absence.

  1. [172]
    I have accepted the evidence of Dr Curson that the timing, manner and content of the employer’s two letters caused a sense of injustice and betrayal in the plaintiff and aggravated her psychiatric injuries: moderately severe post-traumatic stress disorder and major depressive disorder.

Was psychiatric injury to the plaintiff reasonably foreseeable as a result of the timing, manner and content defendant’s letters

  1. [173]
    The defendant knew or ought to have known at all material times from 12.27pm on 3 December 2009 that the plaintiff had alleged that she was the victim of an unprovoked violent attack, that the client, Tara, corroborated that MD had hit the plaintiff, that the plaintiff’s version may be true, that the plaintiff had been injured and hospitalised as a result of an altercation with MD and that the plaintiff’s injuries and hospitalisation may have been through no fault of her own.
  1. [174]
    The risk that the plaintiff had sustained a psychiatric injury as a result of MD’s assault was reasonably foreseeable.
  1. [175]
    It was reasonably foreseeable by the defendant that the plaintiff would have been dismayed to read from her hospital bed on 3 December 2009 that there was an investigation currently being undertaken and that the investigation was into the plaintiff’s conduct as opposed to an investigation into the incident or into the conduct of herself and MD. It was reasonably foreseeable that she would be dismayed that she was unwelcome at work and unable to speak with work colleagues who might be a source of sympathy or support.
  1. [176]
    The defendant knew or ought to have known that the plaintiff was or may have been too ill to attend either of the meetings which the defendant had required her to attend and knew that she had not refused to attend but had claimed that she was too ill to do so. The defendant knew or ought to have known that it was possible that the plaintiff was too ill to attend the meetings.
  1. [177]
    It was reasonably foreseeable by the defendant that the plaintiff would have been dismayed to read on 18 December 2009 the matters set out above from the defendant’s letter[87] delivered that day. The matters were essentially that the defendant regarded her as having refused to attend the two meetings she had been too sick to attend and its preliminary findings were that the plaintiff had instigated a violent attack on MD and that as a result the plaintiff was directed to have no contact with staff and if she were not on leave she would be suspended until the matter was resolved.
  1. [178]
    It was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful, that the timing and content of the two letters was such that, if the plaintiff had sustained a psychiatric injury as a result of MD’s assault, the receipt of those letters would aggravate it. The plaintiff’s submitted that “the Defendant then knew or ought to have known that in a fragile physical and psychiatric state and was at risk of further decompensating on reading the terms of this letter”. I accept that submission.

By the timing and content of the two letters I am satisfied that the defendant failed to take reasonable care for the psychiatric health of the plaintiff. It was reasonable to have delayed the investigation into the plaintiff’s conduct and to have delayed the making of preliminary findings in respect of her alleged conduct.

Did the defendant owe the plaintiff a duty of care as to the manner, timing and content of the two letters?

  1. [179]
    The defendant submits that the defendant did not owe a duty of care to the plaintiff with respect to the manner, timing and content of the two letters.
  1. [180]
    The defendant’s argument is that there was no duty owed by it in relation to matters “incidental to the contract of employment”[88] relying upon State of New South Wales v Paige [2002] 60 NSWLR 371.  The defendant relied in particular on the judgment of Spigelman CJ at [78].  The trial Judge in that case had found that the duty to “provide a safe system of work encompasses the provision of a safe system of investigation and decision making” with respect to procedures for discipline and termination of employment.  The issue was whether the duty of care did encompass provision of a safe system of investigation and decision making.  On appeal, Spigelman CJ at [78] wrote:

[78] The trial Judge’s reference to the well-known category of duty to provide a “safe system of work”, conceals the novelty of the duty his Honour identified in this case.  There is an ambiguity inherent in the word “system”.  The body of case law with respect to a “safe system of work” has been, so far as I am aware, exclusively concerned with the conduct of tasks for which an employee is engaged. (see, for example, Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308 – 309).  His Honour made no reference to any authority, nor was any authority drawn to the attention of this Court, that extended the concept of a “system of work” to matters concerning the incidents of the contract of employment, such as the disciplinary procedures under consideration in the present case.  This is a novel category of duty and involves an extension of the employers’ duties.  In the present context, it raises important considerations concerning the interrelationship between duties of care and statutory powers and duties. 

  1. [181]
    The plaintiff’s case, like the case in Paige, is based on the premise that the duty to provide a safe system of work extends beyond the conduct of tasks for which an employee is engaged and as far as the provision of a safe system of investigation and decision making. 
  1. [182]
    Paragraph 6 of the amended statement of claim provides, so far as is relevant, that the plaintiff’s injuries were caused by the negligence and/or breach of contract of the defendant particulars of which are:
  1. (a)
    failing to take… adequate precautions for the safety of the plaintiff… during its subsequent investigation…;
  1. (b)
    exposing the plaintiff… during its subsequent investigation… to a risk of injury…;
  1. (c)
    failing to provide and maintain a safe and proper system of work… during its subsequent investigation…

Those causes were impliedly linked to the duty set out at para 1(d) of the amended statement of claim “to maintain a safe and proper system of work”.

  1. [183]
    In Paige the plaintiff had been successful at trial having achieved the findings that the disciplinary procedure had not been properly carried out by his employer and that as a consequence he had suffered a depressive illness.  Spigelman CJ considered that the proposed duty to take care during the investigative process should not be recognised.[89]  It is significant that Spigelman CJ referred to it as a “proposed duty”.  It is clear from the judgment that his Honour did not regard the issue as resolving what should occur when there was a clash of two duties. It was not his Honour’s finding that there was a duty of care to provide a safe system of work which involved a duty to be careful about the timing and content of the letters sent when investigating conduct, but that the duty would not apply where it caused incoherence with another body of the law. His Honour held that there was no duty of care with respect to the conduct of the investigative process and was considering whether to extend the duty to provide a safe system of work beyond its conventional boundary so as to encompass the investigative process. 
  1. [184]
    Spigelman CJ continued:

[132] Of particular significance for the present case is the need for coherence in the law, in view of the interaction and interrelation between the proposed duty in tort and the law applicable to termination of employment, that is, the law of contract as modified by statute. In my opinion, the possibility of incoherence in the system of law applicable in this State is such that the proposed duty should not be recognised.

The Chief Justice also regarded a tension as having arisen in that case because of the need for coherence because a potential tension between the specific negligence alleged and the law of judicial review of administrative conduct.

  1. [185]
    In relevant respects, Mason P and Giles JA agreed.[90]
  1. [186]
    The plaintiff sought to distinguish Paige thus:

211. … the Plaintiff does not complain that the delivery of the two letters by the Defendant was not properly carried out in accordance with the requirements of any statutory provisions governing such disciplinary procedures (there are none), or with the requirements of any established procedures or written policies which the Defendant may have had in place for dealing with such disciplinary matters, about the existence and content of which procedures or policies there is just no evidence. The Plaintiff was not charged, let alone disciplined or dismissed, and thus the Plaintiff does not complain of any breach of administrative law relating to any alleged failure to accord her natural justice in relation to any disciplinary procedure which has never taken place, let alone any procedure relating to the termination of her employment, such as wrongful dismissal, etc. 

212. The Defendant does not and cannot point to any specific administrative law, industrial law, employment law or any other tortious (e.g. defamation or assault) remedy of which the Plaintiff could have availed herself in the days post incident after her receipt of the first letter, or after her receipt of the second letter, or at any subsequent time. Nor is there, or was there, any remedy for damages available to the Plaintiff, analogous to her claim herein for negligence and/or breach of contract, which may either have prevented the injuries sustained by her as a consequence of such actions, or have subsequently compensated her for the consequences of such actions.

  1. [187]
    Paige was not concerned with incoherence with only administrative law. Spigelman CJ referred specifically to “the law applicable to termination of employment, that is, the law of contract as modified by statute”. It seems to me, with respect, that his Honour’s observations are equally applicable to the Queensland law applicable to termination of employment. One example arises from the application of section 83 of the Industrial Relations Act 1999 Qld which permits an employer to dismiss an employee for assault but not if the employee can show that in the circumstances, the conduct was not conduct that made it unreasonable to continue the employment. That section makes prompt investigation practical and makes practical the invitation to an employee to promptly show cause why it is unreasonable to dismiss the employee.
  1. [188]
    In O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 the Court of Appeal in New South Wales was considering an appeal by a plaintiff who had failed at trial.  Employed as a bookkeeper, he suffered psychiatric injury in reaction to evidence of others’ suspicion of his conduct and in reaction to his progressive isolation.  The employer’s conduct towards him had been wrong if not disgraceful in several respects.  His appeal was dismissed by the majority.  Spigelman CJ, consistently with his Honour’s judgment in Paige, observed:

[23] In my opinion, his Honour has confused other duties which arise in an employer/employee context — such as an obligation to accord natural justice or of fair dealing — with a duty of care… The duty breached, however, was not, in my opinion, in the circumstances of the case a duty of care.

  1. [189]
    In New South Wales v Rogerson [2007] NSWCA 346 a former police officer sued the state for breaches of the duty of care owed by his former employer, the Police Service, to safeguard him from foreseeable risks of psychiatric injury.  The trial Judge accepted that several breaches of duty had been established.  The Court of Appeal in New South Wales allowed the appeal, reversing the findings of breach of duty, in part on the basis that there was no duty of care.  The headnote accurately summarised as follows:

The substance of the plaintiff's complaints were that the Service had a duty to protect him from discrimination and victimisation because of his family relationship with his brother, Roger Rogerson, a disgraced former Police Officer. The relevant incidents were:

  1. (1)
    the advice of a legal officer that if the plaintiff was called as a witness before the Wood Royal Commission he might be asked questions about his association with his brother and the rejection of a formal complaint about that advice;
  1. (2)
    the rejection by the Casino Control Authority of the plaintiff's nomination for secondment to that Authority;
  1. (3)
    remarks by a fellow officer of lower rank who had been recommended for a promotion ahead of the plaintiff; and
  1. (4)
    the rejection of the plaintiff's formal complaint about those remarks.
  1. [190]
    The Court[91] relevantly found:

[26] … The Service and the State owed him no duty of care in the administration of the procedures for promotion to commissioned rank: compare State of New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371.

…

[38] … The plaintiff was transferred, possibly without prior discussion or consultation… to the Firearms Trafficking Unit.  This was said to have been unwanted and unrequested.  The absence of prior consultation, if this did not occur, might demonstrate some lack of sensitivity but that is all…

[39] There was no common law duty of care owed to the plaintiff in this situation, and no breach of such a duty; compare State of New South Wales v Paige.

…

[41] The incidents that the plaintiff found distressing and his numerous disappointments did not involve any breach of a common law duty of care owed to him by the Service…

  1. [191]
    In Palmer & Ors v State of Queensland [2015] QDC 63 McGill DCJ was obliged to consider a related issue concerning whether an employer’s lack of support for an employee during an investigation caused psychiatric injury and the related issue of whether there was an obligation to provide my support imposed by a duty of care to avoid psychiatric injury.[92]  His Honour observed:

[124] The need for support, if it existed, arose because the complaints were made against the plaintiff, and they were being investigated, which would be productive of anxiety for her, and because her being removed from her position would also be productive of anxiety for her. It follows from the decisions in New South Wales to which I have referred[93] that there can be no duty of care arising in such circumstances directly from the fact of the allegations, the investigation, or the removal from the position. It would in my opinion be inconsistent with that approach to say that, although there was no duty not to cause psychiatric injury by doing those things, there was a duty to provide support in response to those things so as to avoid psychiatric injury. In my opinion, there was no duty to provide special or additional support arising from the fact of the investigation of the complaints, and the removal of the plaintiff from her position.

  1. [192]
    I reject the plaintiff’s submission that Paige is relevantly distinguishable.
  1. [193]
    Consistently with the decisions in Paige, O'Leary, Rogerson and Palmer I find that, in spite of the fact that by the content and timing of its letters the defendant caused reasonably foreseeable psychiatric injury to the plaintiff, the defendant is not liable for it.  This is because the defendant owed the plaintiff no duty to take reasonable care to prevent psychiatric injury by those letters as they were sent as part of the process of investigating whether there was misconduct arising from an alleged assault by the plaintiff in the course of her employment. 
  1. [194]
    It follows that the plaintiff fails in her claim against the defendant. 

Quantum

  1. [195]
    I assess quantum in case the findings on liability are erroneous. I will not make the final calculations for those items which vary according to the date of final judgment.
  1. [196]
    I consider quantum firstly, on the simple hypothesis that the plaintiff succeeds entirely on liability and that the defendant is responsible for the injuries caused by MD and by the letters Ex. 6 and Ex. 7.
  1. [197]
    Future economic loss needs to be discounted. Firstly, for the ordinary contingencies of life; secondly for the other health risks for the plaintiff’s cardiac condition for which she declines to comply with her medication regime.
  1.  

Past and future pain and suffering and loss of amenities

$60,000.00

  1.  

Interest on past pain and suffering (50% of 1) at 2% pa since incident

…

  1.  

Special damages:

  1. (a)
    Hospital expenses paid by WCQ (Ex. 15)
  2. (b)
    Medical expenses paid by WCQ (Ex. 15) 
  3. (c)
    Rehab expenses paid by WCQ (Ex. 15) 
  4. (d)
    Refund to Medicare (to 18.04.14) (Ex. 50)
  5. (e)
    Medical expenses paid by plf (agreed)
  6. (f)
    Travel expenses paid by plf (agreed)

 

$1,380.00

  10,180.50

    3,493.94

    4,444.15

800.00

    2,500.00

22,798.59

  1.  

Interest on special damages paid by plf ($3,300) @ 5% pa since incident

…

  1.  

Past economic loss

  • $1,018.29G ($816N) pw av (Ex 17) for all wks from 04.12.09 to date of judgment in plaintiff’s favour

…

  1.  

Interest on net past economic loss (after deduction of $87,311.01 net WC payments, $68,263.75 WC lump sum, and $30,000.00 est C’link payments from 29.05.12 to 20.11.15) @ 5% pa since WC ceased on 11.05.12 to date of judgment in plaintiff’s favour

…

  1.  

Fox v Wood

26,282.00

  1.  

Future economic loss

  • $850N pw  from date of judgment for the plaintiff to age 67 (multiplier to be used) discounted by 25% for contingencies

…

  1.  

Past superannuation loss (9% of 5)

…

  1.  

Future superannuation loss (10.5% of 8)

…

  1.  

Future expenses (Chau)

  1. (a)
    psychiatric/psychological treatment 2 yrs
  1. (b)
    psychotropic medication ($60 pm for 20 yrs)
  1. (c)
    PTSD Clinic

 

$12,000.00

9,220.00

10,000.00

31,200.00

 

Gross assessment

…

 

Less: refund to WCQ

196,911.20

 

Net assessment

…

  1. [198]
    Having found that that the receipt of Ex. 6 and Ex. 7 caused the plaintiff loss it is necessary to value or assess the extent of that in monetary terms on the hypothesis that the plaintiff cannot recover for the loss caused by MD’s assault. That involves assessing the extent of the aggravation caused by receipt of Ex. 6 and Ex. 7. On the evidence that is difficult.
  1. [199]
    I am satisfied that the assault, without the letters Ex. 6 and Ex. 7, would have led to the plaintiff’s hospitalisation, a need for prompt investigation by the defendant, cessation of employment and “Moderately Severe Post Traumatic Stress Disorder and Major Depressive Disorder”. I infer from Dr Curson’s opinion that the perceived lack of support from the defendant during the plaintiff’s convalescence, and termination of employment were themselves aggravating matters. Except to the extent that the letters contributed to the perception of lack of support, the lack of support and cessation of employment and the incomplete investigation are to be disentangled from the effects of the two letters. I am satisfied that the consequence of subjecting the plaintiff to proportion of the loss attributable to the two letters is 15%.

Footnotes

[1] Exhibit 8, report Doctor Curson 11. 12. 14 at page 4.

[2] ASOC para 1(g).

[3] ASOC filed 17 September 2015 at para 1 (g) (i) A to D.

[4] T1-47.

[5] Exhibit 17.

[6] T1-46.

[7] Beginning at T1- 47 Line 25.

[8] T1-50 line 10.

[9] T1–52.

[10] T1-55.

[11] FFAD 4(b).

[12] T7-92.

[13] T7-92.

[14] T7-93.

[15] SOC and ASOC.

[16] Filed 13 April 2015.

[17] Filed 21 September 2015.

[18] T7-45 line 24.

[19] T1-63, Line 40.

[20] T1-65.

[21] T1-65.

[22] T1-66.

[23] T1-64 and T1-65.

[24] T1-66.

[25] Further Further Amended Defence para 4(d).

[26] FFAD para 4(f).

[27] Exhibit 19.

[28] T7-82 line 26.

[29] FFAD para 4(b).

[30] T7-53 line 18.

[31] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 per Dixon J.

[32] T1-66, Line 32.

[33] T1-69, Line 17.

[34] T1-72, Line 46 to T1-73, Line 5.

[35] T1-72, Line 5.

[36] T1-73.

[37] T1-78, Line 19.

[38] T1-78, Lines 25 to 36.

[39] T1-78, Line 43.

[40] T1-79.

[41] FFAD 4(a).

[42] FFAD 4(a).

[43] ASOC paragraph 1(g)(v).

[44] T7-82 line 12.

[45] T1-80.

[46] T1-80, Lines 1-4.

[47] T1-19, Line 12.

[48] T1-79.

[49] T1-79, Line 1.

[50] T1-80.

[51] Exhibit 48 par 11.

[52] Exhibit 18.

[53] Exhibit 6.

[54] Exhibit 5.

[55] T5-65, l 9.

[56] Exhibit 21.

[57] Exhibit 52.

[58] T1-101 line 27.

[59] Exhibit 7.

[60] T1-104 line 40 to T1-105 line 25.

[61] Exhibit 7.

[62] See e.g. Exhibits 22 and 4.

[63] Exhibits 15 and 50.

[64] Exhibit 21.

[65] Exhibit 53 paragraph 8.

[66] Exhibit 8 Report Doctor Curson 11.12.14  2nd and 3rd pages.

[67] Exhibit 8 report 11.12.14.

[68] Exhibit 8 page 1 at page 6 last sentence.

[69] Plaintiff’s Outline of Submissions paragraph 103.

[70] Outline of defendant’s Submissions, para 116.

[71] Plaintiff’s Outline of Submissions paragraph 206.

[72] Plaintiff’s Outline of Submissions, paragraphs 186, 215 and 216.

[73] ASOC para 6(a) and (b).

[74] ASOC para 6(n).

[75] ASOC para 6(p).

[76] Exhibit 35.

[77] Exhibit 34, p 4 of 10.

[78] Exhibit 35.

[79] Exhibit 8, report 22 June 2011, p 1.

[80] ASOC paragraph 1(d) and 6(a), (b) and (p).

[81] Plaintiff’s Outline of Submissions, para 34.

[82] Exhibits 4 or 22.

[83] Plaintiff’s Outline of Submissions, para 181.

[84] Woolworths Limited v Perrins [2015] QCA 207 at [66] per McMeekin J, Fraser and Gotterson JJA agreeing, applying Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [33].

[85] Woolworths op. cit at [67].

[86] (2005) 222 CLR 44 at [41].

[87] Exhibit 7 extracted herein at [108].

[88] Defendant’s Submissions in Reply, para 2.

[89] State of New South Wales v Paige op.cit [132].

[90] Mason P at [330] and Giles JA at [358].

[91] Handley JA, McColl JA agreeing at [1] and Hoeben J agreeing at [43].

[92] [123].

[93] Paige (supra); O'Leary (supra); Rogerson (supra).

Close

Editorial Notes

  • Published Case Name:

    Govier v Unitingcare Community

  • Shortened Case Name:

    Govier v Unitingcare Community

  • MNC:

    [2016] QDC 56

  • Court:

    QDC

  • Judge(s):

    Andrews DCJ

  • Date:

    18 Mar 2016

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2016] QDC 5618 Mar 2016Personal injuries claim dismissed: Andrews SC DCJ.
Appeal Determined (QCA)[2017] QCA 1210 Feb 2017Appeal dismissed: Fraser, Gotterson JJA and North J.
Special Leave Granted (HCA)[2017] HCATrans 18315 Sep 2017Special leave granted: Bell, Keane and Edelman JJ.
Special Leave Refused (HCA)[2018] HCATrans 6513 Apr 2018Contract of employment central to determination of issues on which special leave to appeal was granted not in evidence; special leave revoked: Bell, Gageler, Nettle, Gordon and Edelman JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
1 citation
Jump To
Cite 1 - (1986) 160 CLR 301
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw (1938) HCA 34
2 citations
Jump To
Cite 1 - (1938) HCA 34
Cite 2 - (1938) HCA 34
Hegarty v Queensland Ambulance Service [2007] QCA 366
2 citations
Jump To
Cite 1 - [2007] QCA 366
Cite 2 - [2007] QCA 366
Jones v Bartlett (2000) 205 CLR 166
1 citation
Jump To
Cite 1 - (2000) 205 CLR 166
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
2 citations
Jump To
Cite 1 - (2005) 222 CLR 44
Cite 2 - (2005) 222 CLR 44
Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 205 CLR 254
1 citation
Jump To
Cite 1 - (2000) 205 CLR 254
NSWCA 7 and New South Wales v Rogerson [2007] NSWCA 346
2 citations
Jump To
Cite 1 - [2007] NSWCA 346
Cite 2 - [2007] NSWCA 346
O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7
2 citations
Jump To
Cite 1 - [2004] NSWCA 7
Cite 2 - [2004] NSWCA 7
Palmer v State of Queensland [2015] QDC 63
2 citations
Jump To
Cite 1 - [2015] QDC 63
Cite 2 - [2015] QDC 63
State of New South Wales v Paige [2002] NSWCA 235
2 citations
Jump To
Cite 1 - [2002] NSWCA 235
Cite 2 - [2002] NSWCA 235
State of New South Wales v Paige (2002) 60 NSWLR 371
1 citation
Jump To
Cite 1 - (2002) 60 NSWLR 371
State of New South Wales v Paige (2004) 60 NSWLR 371
6 citations
Jump To
Cite 1 - (2004) 60 NSWLR 371
Cite 2 - (2004) 60 NSWLR 371
Cite 3 - (2004) 60 NSWLR 371
Cite 4 - (2004) 60 NSWLR 371
Cite 5 - (2004) 60 NSWLR 371
Cite 6 - (2004) 60 NSWLR 371
Woolworths Limited v Perrins[2016] 2 Qd R 276; [2015] QCA 207
3 citations
Jump To
Cite 1 - [2015] QCA 207
Cite 2 - [2015] QCA 207
Cite 3 - [2015] QCA 207

Cases Citing

Case NameFull CitationFrequency
Govier v Unitingcare Community [2017] QCA 12 34 citations
1

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