Keong v Queensland Rail Ltd[2018] QDC 31

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff claims damages from the defendant (referred to as QR), his employer at the time, for the consequences of what is primarily a psychological injury said to have occurred as a result of three separate incidents which occurred at work on 2 October and 12 and 17 November 2011. Each incident occurred during the performance of the plaintiff’s duties as an After Dark Customer Service Officer (“AD employee”). The first incident occurred at the Burpengary Railway station, the next at Zillmere station and the last at the Morayfield station. The defendant denies liability for the consequences of any of the incidents. The quantum of the plaintiff’s claim is, in any case, also disputed.

Background

2. [2]
   The plaintiff was born on 20 December 1984, so was 26 at the time of all three incidents. The defendant determined to employ AD employees in about 2002. Prior to doing so it commissioned a report from Risk Assessment International Pty Ltd entitled “Report on Risk Assessment for Proposed ‘After Dark’ Security Initiative’” (RMI Report). The plaintiff was engaged as an AD employee from 2 August 2010. He’d previously been employed by QR, from 16 November 2009.

3. [3]
   His initial position with the defendant as a customer service officer primarily required him to be one of a number of employees working day shifts at larger stations. He had performed AD duties on two or three occasions before he was contacted by QR staff in 2010 and asked if he wished to work as an AD employee.

4. [4]
   He accepted that offer. There was no interview. One of the attractions of such employment, he said, was that it offered a real prospect of permanent employment with QR. He was at that time only a casual employee. He said that if he performed such duties over the duration of six separate three month contracts, then he would obtain a permanent position. That contention was not disputed, and I accept it.

5. [5]
   His role as an AD employee required the plaintiff to carry out his duties at night time, working alone. The Position Description for an AD employee (Ex 1, “Employee Documents, p 28) required employees to provide a visible presence at selected railway stations in order to enhance the perception of risk by customers. I shall refer to that document more fully later. A significant issue at the trial concerned the extent to which the plaintiff required training, and what training he was provided prior to the alleged incidents. The effectiveness of his training was also significantly in issue. That is, whether, if further training had been provided, the incidents, and especially the first incident, which was by far the most serious, would have been avoided. The plaintiff’s psychiatric response to those incidents and the extent to which he was a psychologically vulnerable person was significantly in dispute. The plaintiff also alleged that the defendant was negligent in not conducting psychological profiling of the plaintiff prior to engaging him as an AD employee, that too was disputed.

The incidents

6. [6]
   The plaintiffs said in evidence that at about 1.25am on 2 October, he walked onto platform 1 of Burpengary Station, as a northbound train was due to arrive shortly after.

7. [7]
   The train arrived, discharging passengers onto platform 2, then departed at 1.32.30, according to the timing shown on CCTV cameras, being part of a disc showing all three incidents (part of Ex 1). A number of people got off the train, including a group of four young people. They walked to a car park adjacent to platform 2. This is clearly shown on the CCTV footage. Members of the group appear to be calling out and gesticulating at the plaintiff. The way they behave, turning towards the plaintiff and waving their arms, suggests strongly that there was verbal inter-play between the group and the plaintiff. The CCTV is however silent. He said they called him, among things “fatty”. The CCTV footage shows that they were certainly interacting with him by 1.34.30. They also appeared to be clearly gesticulating towards the plaintiff. At that time one of the group is seen to depart and use an overhead railway bridge to walk to platform 1, where the plaintiff had remained standing after the train had left. This man steps onto platform 1 at 1.35.28 and immediately approaches the plaintiff who was still standing on the platform and so was outside the ticket office. At 1.35.38, the youth stood only a distance of about 30 centimetres (I estimate) away from the plaintiff. He continued to taunt the plaintiff, the plaintiff said. The plaintiff said he had not initially appreciated that he was the one the group who had been taunting him from the other platform.

8. [8]
   At 1.35.59, the plaintiff looked towards the three members of the group who were then on platform 2 and, at that stage, the man strikes the plaintiff with his left hand to the right side of the plaintiff’s face. The man continued to attack the plaintiff. They both wrestled. One of the group from platform 2 crossed over the railway lines and joined in the attack. The plaintiff was pulled down onto the platform. He said he hit his head. His being on the ground is clearly shown on the CCTV footage. The third man kicked the plaintiff and stomped on his head when he was on the ground. After some initial scuffling and blows the plaintiff picked up his initial attacker, throwing him to the ground. This retaliation appeared to deter the two men who left, crossing to platform 2 over the railway lines.

9. [9]
   The plaintiff said he suffered physical injuries, including injuries to his face, and psychological distress, including symptoms of post-traumatic stress disorder and susceptibility to the onset of psychiatric injury. Photographs of his head and face show the obvious impression of the third man’s shoe.

10. [10]
    An issue of some importance concerns the question whether, as the man approached him, the plaintiff ought to have retreated to the office. He agreed that that was his training if he apprehended danger. He said he did not do so as he did not know the man who initially attacked him was part of the group who were abusing him from platform 2.

11. [11]
    The defendants pleading alleges the incident was contributed to by the plaintiff’s own conduct in becoming unreasonably involved in and escalating the melee. Having heard the evidence and seen the CCTV footage I do not think he was, subject to one caveat. It was, in my view, a cowardly and gratuitous attack upon the plaintiff working alone, by the two youths.

12. [12]
    The one caveat is this. Video from camera 1 clearly shows the plaintiff stood in a position very close to the train lines for some time after the train had departed. He was standing close to the edge of the platform and opposite the group of three youths, two male and one female, who were on platform two verbally abusing him.

13. [13]
    I said earlier that the plaintiff said he did not know the person who initially attacked him was a member of the group of youths who were verbally abusing him. That may be so. Footage from camera 19 shows this man leaving the group before other members of the group went onto platform two. The plaintiff may not have seen him leave the group. The CCTV appears to show some visual barrier between platform two and the car park. It is certainly possible therefore that the plaintiff did not appreciate that he was a member of that group. There is understandably no audio to the CCTV footage and so it’s not possible to know whether verbal interchanges would have alerted the plaintiff to the fact that the man descending the stairs, then approaching him on the platform, was one of that group of abusive youths. The plaintiff’s evidence about that was not compelling but, correspondingly, I cannot be satisfied he did know since there was no evidence to allow me to doso. I make no finding about that issue.

14. [14]
    A number of observations can however be made. The plaintiff accepts his training taught him that he was to withdraw, observe and report concerning incidents and not to intervene. When the group commenced verbally abusing the plaintiff, at about 1.34.30, it is surprising then that he did not return to the safety of the railway office. If he had, I think it would be highly likely the group would have continued on its way. To return to the office would, I conclude, have been the action of a prudent AD employee. Even without the training he received not to intervene, common sense would have indicated he should do so. Other passengers had left the station by no later than very shortly after 1.34.00. Indeed most had left by 1.33.30 and there was just one group of three, shown in the video footage from camera 28, who departed 30 seconds later. They can be clearly seen walking past where the plaintiff was, and would have left from a nearby exit shown on other cameras. There does not seem to have been any reason for the plaintiff to have remained on the platform thereafter, other than to engage with the group. He thus had a full minute after the last passengers had left the station before the youth approaches him.

15. [15]
    Instead the plaintiff chose to remain on the platform taking up the position I have described, close to the railway line separating the two platforms. The youths on the other platform were also, at times, close to the edge of platform 1. The result was that the plaintiff and the abusive youths were almost as close as they could be to one another without crossing the lines. The plaintiff appears to engage with the abusive youth’s, at least by maintaining visual conduct. It’s not possible to ascertain whether he said anything in retaliation to their verbal abuse.

16. [16]
    His failure to disengage from the youths by going inside the office meant the prospects of defusing the situation were lost. If he had, I have no doubt the youths would not have engaged with him, but would instead have left the station.

17. [17]
    In saying that I do not mean to imply that the plaintiff was the cause of the altercation. The assault was, as I have said, a gratuitous act of violence by his two attackers. His actions in remaining on the platform after passengers from the train had left, and engaging with the youths on the other platform, appears to me however to have been contrary to the training he had received which was to observe and report, and not to become involved. It was contrary to common sense.

18. [18]
    A security officer engaged by the plaintiff to provide a report in this matter, Dr Tony Zalewski, says that the outcome would have been different if the plaintiff had been provided by the defendant with adequate security training. I determined such an expressed opinion inadmissible but Dr Zalewshi’s report is nevertheless relevant in considering the extent and quality of training that may have been necessary for AD employees. I shall refer to that issue later.

19. [19]
    There was also a real, and important, dispute about the plaintiff’s immediate response to that initial incident. The plaintiff clearly had physical injuries. He had however only one day off actual work. In fact he obtained a medical certificate from the Caboolture Hospital stating he was unfit for work from 2 to 4 November and could then return on normal duties. He was however rostered to work only on 4 November, the earlier two days being his regular rostered days off.

20. [20]
    The plaintiff alleges he was “required” to return to his normal work duties and received no debriefing or other assistance. In circumstances where, as I shall describe, he did not assert any difficult in doing so, his saying he was “required” to work is somewhat emotive and somewhat of an indication of his belief that his employer was to blame for his circumstances.

21. [21]
    The defendant, in allowing the plaintiff to return to his normal duties. relied on the medical certificate indicating he could return to normal duties within three days. The plaintiff had also twice been contacted on 2 October by his Customer Service Manager (“CSM”) or acting CSM, enquiring about his wellbeing. He was again contacted on 4 October. He said on each occasion he was well and fit to return to normal duties on 5 October. He was also contacted “at various times” by a health and safety representative of the defendant Kate Pinkard to ensure he was fit for work.

22. [22]
    In addition:

1. (i)
   The plaintiff was offered use of the defendant’s confidential employee counselling service, but did not use it.

2. (ii)
   Mr Sims, his supervisor conducted a debrief, called a “Why Tree Analysis”, on 5 October (Ex 6).

23. [23]
    It is clear however that this debrief was directed to the circumstances of the event and whether it could have been avoided rather than designed to psychologically debrief the plaintiff. That of course does not mean that if the plaintiff had complained of psychological distress that might not have resulted. But in circumstances where there was no such complaint, no psychological debrief occurred. The plaintiff was instead advised about steps that he might have taken, for example by returning to a position of safety, which would have averted the incident. He was also made aware of other safety steps such as the use of hotkeys on his phone that might assist in the future.

24. [24]
    Clearly the plaintiff advised everyone that he was “alright” prior to and after returning to work on 5 October. The defendant later arranged, through its staff, for the defendant to later attend medical check-ups on 21 and 28 October, even arranging transport for the plaintiff. I shall refer shortly to these appointments

25. [25]
    I conclude there was nothing to cause QR to believe the plaintiff was not able to return to his normal duties when he did.

26. [26]
    On 11 November, at about 9.00am a group of approximately four or five girls were on a platform at Zillmere Station. The plaintiff told them that if they weren’t catching a train they should leave. They appeared to him to do so. He said that at about 9.05am he went to sweep the platform, catching a lift up to the overhead walkway. This is clearly shown on the CCTV footage of the incident. The plaintiff can be seen getting out of the lift he had used. He was carrying a dust pan and small broom with a slight handle. I would estimate it to be about 250mm long. On seeing the girls at the top of the stairs he seemed to commence to walk through them, and onto the stairwell so as to walk down to the platform. There must have been some sort of altercation. Three of the girls can be seen to scurry onto the overhead walkway. A fourth appears to be seated on the top step and is perhaps shown being struck by the plaintiff’s broom. He says that this girl threw a plastic container of rice at him, hitting him in the face and knocking his spectacles off. He says that he held the broom towards the girl causing her to stop advancing towards him and he then returned to the office, closed the door and called the police. Footage from the camera on the platform shows the plaintiff proceeding down the stairs, pursued by this girl. She stops short of the bottom step and was clearly yelling at him as he hurriedly walks away – presumably to the station office.

27. [27]
    I might add that shortly before he is shown on this footage descending the stairs another young girl can be seen going from the platform and up the stairs that the plaintiff then descends. This young woman, who may or may not have been part of the group who were seated at the top of the stairs, then appears ahead of the plaintiff, running down the stairs. She trips on the platform and falls. At the trial questions were asked of the plaintiff as to whether he was chasing this young woman. He denied doing so. I do not think he was. His actions seem to me to be of a man retreating from the “rice thrower” and he appears to show no interest in the girl in front of him.

28. [28]
    It does not seem to me that this relatively minor incident was of particular significance other than in two possible respects. The plaintiff says it stirred up his emotions and anxiety which he had after the first incident. The defendant says that his actions, in effectively pushing his way past the young women seated on the stairs, gives the lie to the plaintiff’s assertion that he was anxious and fearful after the first incident in the way he described in his evidence. I shall return to these issues shortly.

29. [29]
    The plaintiff said that after this incident he was not provided with any time off work. The defendant admits that he had no time off work, but says that the plaintiff did not request any such time off or provide any medical or other documentation in support of any time off work. That is clearly so.

30. [30]
    The third incident is again shown on CCTV footage. It shows the plaintiff arriving at work at Morayfield Station at 18.55 on 17 November. After going into the office he is seen to emerge and go onto the platform with a female QR staff member, Ayleen Gordon, at 18.56.

31. [31]
    They are clearly discussing some issue in an animated fashion. For some reason a group of five youths – three men and two females – seek to become involved. At 18.56.12 Ms Gordon is seen sending them away while she and the plaintiff continue their discussion.

32. [32]
    The two of them then return to the office. Ms Gordon leaves the station at 18.57.27. She seems clearly to be leaving work. Immediately thereafter the plaintiff and two of the youths, a young woman and a male, start to have an animated discussion through the ticket office window. For some reason at 18.57.42 the plaintiff is seen to leave the window. He comes onto the platform through the office door at 18.57.47 and approaches those two persons and takes up a position close to and immediately in front of the young man. It can properly be described as being “in his face”. The young man returns the favour. At 18.58.01 a second young male, also one of the original group of five who initially sought to intervene in the dispute between the plaintiff and Ms Gordon, intervenes, separating the plaintiff and the male he was confronting. The plaintiff then returns to the safety of the station office. The two he had been arguing with through the ticket office appear to push him through the door and into the office. Immediately after doing so the young women kicks the door of the office. The plaintiff said in evidence she broke the glass.

33. [33]
    It seems to me the plaintiff’s action in leaving the office was clearly contrary to his training. Again, it was a matter of some conjecture whether or not further or adequate training could have obviated this confrontation. The extent to which the plaintiff suffered any adverse psychiatric response was also disputed.

The Plaintiff

34. [34]
    The defendant submits that any psychiatric condition which the plaintiff suffered following the incidents was a consequence of his pre-existing vulnerabilities. In particular the defendant’s counsel relied on a report of Dr Paul Zimmerman of 24 June 1999 (Ex 11, p 276). The plaintiff was of course then only 14 years of age. Dr Zimmerman was then the director of thoracic medicine at the Prince Charles Hospital. He was not a psychiatrist but of course it was the history given to him, upon which counsel primarily relied.

35. [35]
    Dr Zimmerman said that plaintiff’s major problem was his behaviour at school. He was said to frequently get volatile and to “explode”. He had a history of suspensions and of changing schools. His mother reported significant sleep problems (something he now complains about as a result of the subject assaults). She said he was frequently awake during the night and “prowls around the house”. He was then 123.8kg. His mother described what seems clearly to have been excessive eating of grossly inappropriate foods, not only by the plaintiff but others in the family also. It is clear that the plaintiff’s father and brother each suffer from obesity.

36. [36]
    Dr Zimmerman described that the plaintiff as a grossly obese young man with major behavioural problems and severe day time somnolence.

37. [37]
    At the time he was working with Queensland Rail as an AD employee he was however 26 years of age. There is no medical history of any psychiatric symptoms in the intermediate period. The defendant did not produce evidence to suggest conflict with fellow employees (other than the argument with Ayleen Gordon) or other workplace issues consistent with significant psychiatric problems. At least up until 2 October 2011 he does not appear to have exhibited any psychiatric difficulties which impacted on his employment with QR.

38. [38]
    I accept however that there were a number of features of the plaintiff’s life which have made him very vulnerable to the development of psychiatric symptoms and other ill health and which, consequently, are relevant to both the assessment of damages in this case and also whether if profiling had been carried out, QR would have employed the plaintiff as an AD employee.

39. [39]
    The plaintiff relied on the evidence of the psychiatrist, Dr Eric De Leacy. In his initial report of 6 May 2013 Dr De Leacy says, (p 4 of Ex 1);

“His main problem is being overweight.  He now weighs 180kg – he was already obese but he now has sleep apnoea.  He’s in danger of having obesity related illnesses.”

40. [40]
    In his evidence the plaintiff said that at the time of the subject assaults he was 170kg. This is confirmed by Caboolture Hospital records (exhibit 3, p 87ff). He is 182 centimetres tall. Consistent with Dr Zimmerman’s report it seems there is a significant incidence of family obesity.

41. [41]
    The plaintiff’s counsel’s submission set out the following background circumstances:

“[69] The plaintiff has always been a large person and by the age of 14 he weighed about 120kg and was tall (T1-40/L25-28). He did not play sport (T1-40/L7) due to his size (T1-40/L9). He suffered from asthma at school (T1-40/L32). He was bullied at school and would eventually lash out (T1-40/L35). As at October 2011, the plaintiff was around 170kg and his weight was stable (T1-45/L39-43). He was not a person to respond confidently to situations involving heightened anxiety and which may involve aggressive acts against person or property. He enjoyed computers.

[70] The report of Dr Zimmerman of 24 June 1999 (EX 11 – Narrangba Medical Records) refers to the plaintiff suffering behavioural problems at school. He frequently gets volatile and explodes and he had been suspended. He had a possible history of asthma and was tired. He was grossly overweight, weighing 123.8kg at 14 years of age. The plaintiff’s case is that the behavioural patterns resulted from teasing at Dakabin State School and improved when moved to Pine Rivers High School (T1-40/L35-46; T1-41).”

42. [42]
    I interpose that when Dr Zimmerman saw the plaintiff he was then 14 years old, and well past state school.

43. [43]
    The plaintiff’s counsel further submitted:

“[100] Dr Steinberg stated, when referring to the plaintiff, that proneness to anger may be oppositional defiant disorder and those difficulties can be taken into adulthood. Dr Steinberg stated that the plaintiff lived a fairly socially isolated lifestyle and he may have had difficulty forming relationships or may have had difficulty in social interactions and his way of managing a difficult social interaction where he was threatened might have been anger. It might have been a consistent personality trait that he had all his life. (T2-129/L47; T2-130/L1-43).

[101] Dr Steinberg stated that the plaintiff was predisposed to anger or behaviour difficulties when challenged and when stressed (T3-132/L30-35).

[102] Dr De Leacy agreed that the plaintiff was predisposed to a psychiatric condition (T3-83/L32-40).

[103] Dr Holm questioned whether the plaintiff had a vulnerable personality (EX 3 – p.38).

 …

[107] Further, the evidence of Dr Steinberg, as set out in his various reports (EX 5), is as follows:

1. (a)
   In a file note date 21 July 2016 at page 2, paragraph 2, Dr Steinberg referred to the records of the Narangba Medical Centre dating back to 1998, and identified significant schooling problems, attention deficit disorder and oppositional defiant disorder. He thought that such matters were developing personality characteristics but thought the plaintiff did not have a personality disorder but was prone to anger;

2. (b)
   In a file note dated 23 October 2017 (page 1, paragraph 3), Dr Steinberg states that having regard to Dr Zimmerman’s report, the plaintiff’s reported behaviour does show an early pre-disposition to intolerance of other people that can persist into adulthood. Dr Steinberg thought the plaintiff was a person with a lack of social correctness and a poor tolerance of stress. He thought the plaintiff was more comfortable with his family and he lives with his brother.”

44. [44]
    Up until the plaintiff commenced work with Queensland Rail in November 2010 he had a very poor employment history. He also said he commenced, but failed to complete, two diploma courses in information technology. His explanation for stopping those courses, after completing about nine months of the twelve month duration of each courses – namely that he had to stop to care for his father who had obesity related illnesses – does not in my view really explain such discontinuities. There was no explanation of why he commenced the second such course, if the need to care for his father effectively prohibited him doing the first course. There was no attempt to explain how it had been possible for his father to cope whilst the plaintiff completed the first nine months of each such course. The fact that he then sought and obtained work in September 2003, about twelve months after discontinuing the first course, also seems inconsistent with the plaintiff’s explanation of why the courses were discontinued. Most jobs he had were also very short lived. The longest demonstrated employment seems to have been for six months with Unisky Pty Ltd from July 1 to December 16 2007. He then did not work at all for a period of 23 months, as a 23/24 year old, until he started with QR on 16 November 2009.

45. [45]
    The evidence discloses that he was also significantly socially isolated. Throughout his life he had few friends. He had never had any relationship although indicated a wish for such a relationship. Indeed it was said neither of his siblings had ever had a relationship. Chris Frank, the psychologist to whom the plaintiff was referred by Dr Huntley in January 2012 noted the plaintiff said (Ex 3 p 86(1) being a transcript of his notes) – “life has always been difficult…always had to learn to cope alone, take lesser positions - never had a full social capacity.”

46. [46]
    Consistent with this evidence and the opinion of Dr Steinburg, I find that this background made the plaintiff very vulnerable to the development of emotional and psychiatric problems during his lifetime.

47. [47]
    I shall return to these issues shortly, especially in consideration of whether the defendant was negligent in not conducting psychological profiling of the plaintiff prior to employing him as an AD employee.

Contemporaneous history

48. [48]
    Following the initial incident of 2 October 2011 the plaintiff was taken by ambulance to Caboolture hospital. The records of the hospital (exhibit 3, p 87 ff) indicate that he was “alert and orientated”. His GCS was 15/15 but there was a record of complaint of a mild headache and of his being a bit vague and mildly confused. The hospital noted a shoe imprint on the right hand side of his face, consistent with photos being part of exhibit 1.

49. [49]
    The plaintiff was provided with the Work Cover medical certificate certifying he was unfit for work until 5 October, stating he suffered “mild concussion”.

50. [50]
    There was no subsequent attendance at the hospital or on any medical practitioner, until he saw Dr Huntley at Hub Medical Centre on 21 October, 2011. He then was seen by a Doctor Carter at that same practice on 28 October (see p 1 ff of the medical record section of exhibit 3). After these two consultations there was no subsequent consultation until 17 January 2012 when he again saw Dr Huntley. This was apparently after he had lodged a workers compensation application. The actual date of the application is unknown but I note payments wore backdated to 4 January 2012, suggesting that may have been when the application was made.

51. [51]
    The plaintiff in his evidence complained of significant symptoms following the initial assault, which he said were then renewed by the second and third incidents. He complained in his evidence of being emotionally disturbed, having trouble talking on the phone, staring at the wall in a catatonic way, and of disturbed sleep, nightmares, an inability to leave his unit and also of locking himself in the office when at work.

52. [52]
    The records of the consultation of 21 October 2011 note that in the incident on 2 October the plaintiff said he had been “kicked in the head” and fallen, hitting his head. There was said to be no loss of consciousness but he was a “bit blurry”. He also said that he’d hurt his back but “that has settled”.

53. [53]
    Importantly Dr Huntley records;

“back at Work Oct 5

OK Then

All OK on Return

Headaches started 1/52 ago…Daily”

Examination by the doctor seemed entirely unremarkable.  A diagnosis of post-concussion headache was made and a CT scan arranged.

54. [54]
    On 28 November, when the plaintiff attended Dr Carter, his supervisor was also present but not, I find, in the room during the examination.

55. [55]
    Doctor Carter records that the plaintiff was “well today” and had not had a headache for two days. He reported that the CT scan of his head, which Dr Huntley had arranged, was normal.

56. [56]
    An important feature of these two consultations is that there was no complaint at all of any of the emotional symptoms that the plaintiff said in evidence he had suffered both before and after his return to work on 5 October.

57. [57]
    The plaintiff complained of emotional symptoms earlier set out when giving evidence of his condition in the trial (see T 1-65/67 and 1-70/71). He also produced a document, Ex 24, which he said was a page of his diary of 7 October 2011. It records, “21:50 – 22:00 closed shutters while I had a breakdown”. No other page of his diary was provided. All that was tendered was a one page photocopy of a particular page of what seems to be from a Spirax notebook. Indeed, when that 1 page photocopy was produced the plaintiff undertook to attempt, overnight, to locate the original diary. He was unable to do so (See T4-4/5). I’m unable, in such circumstances, to ascertain whether it was part of a consecutive daily diary that he kept. I cannot read it in the context of other diary entries. The tenor of it however appears genuine. There is reference to performing a particular task at 19:18 and, reference to an event at 19.50 when a group of youths were spoken to. There is reference to a phone number and a notation that “my head still hurts. Tried to call SMO twice, engaged.”

58. [58]
    It was submitted on behalf of the plaintiff that the reason he had not made statements about his emotional condition to Dr Huntley and Dr Carter was because of a sense of shame that he felt about his reaction to the incidents, especially to doctors he understood had been engaged by QR to see him. He said he spoke of such embarrassment to the psychologist, Chris Frank, but my perusal of Dr Frank’s notes did not ascertain any notation to that effect.

59. [59]
    It is important to also note that there was no other evidence of his distress at that time – from his brother, with whom he shared a unit, or from work colleagues, family or friends.

60. [60]
    I have referred already to the fact that his supervisor spoke to him frequently to ascertain whether he was ready to return to work after the first incident, which was clearly the most serious. Exhibit 25 includes an email of Graham Sims, Customer Service Co-ordinator to Anthony McLean, the Customer Service Manager of, it would seem, October 24 2011. Mr Sims’ notes that on both the Sunday morning and Sunday afternoon of 2 October, the day of the first incident (which occurred at about 1.30am), Mr McLean had rung the plaintiff enquiring how he was feeling. Mr Sims notes that on Tuesday 4 October he himself rang the plaintiff to see how he was going. He said he was advised, according to the memo, that the plaintiff was “fine and able to resume on Wednesday 5 October”. As I said earlier he did in fact return to work on that day. Mr Sims also records that the plaintiff had “received (sic) phone calls from Kate Pinkard from fitness for work”. Mr Sims records that on 5 October he and an acting safety advisor, Rebecca Whelan visited the plaintiff on his first day back at work at Bray Park station and that the plaintiff said he was “alright”. Mr Sims also arranged for another QR employee, Remo Mazzocato, the AD customer service attendant supervisor to visit the plaintiff at Bray Park.

61. [61]
    The plaintiff rang in sick on two consecutive Saturdays, 8 and 15 October. On both occasions it is said that Mr Sims rang the plaintiff to see how he was as he was concerned the absences may have been related to the incident. Exhibit 23 comprised the rehabilitation case notes relating to the plaintiff. They show that on 12 October he told Kate Pinkard who was an assistant rehabilitation officer that he had taken 8 October off work “so I could have a four day weekend and relax”.

62. [62]
    Incidentally those notes refer also to an incident “on Friday night at Bray Park Station … . There were some youths shouting at me”. I note that 7 October was a Friday. The description is generally consistent with the content of the incident noted to have occurred at 19.50 on that day in Exhibit 24, of the plaintiff’s diary note, giving support to its legitimacy as a contemporaneous record.

63. [63]
    Exhibit 23 notes that in relation to the work absence on 15 October the plaintiff told Kate Pinkard that his absence from work on that day was “not related to work injury” and that the plaintiff did not “feel there is any further treatment I need”.

64. [64]
    Mr Sims also visited the plaintiff at Morayfield on 20 October. The note records that the plaintiff;

“Advised that when he was in Caboolture hospital he received no medical treatment and was concerned that no x-rays were taken as he had concussion at the time of the assault and still had headaches”.

As a result arrangements were made for the plaintiff to see a doctor on 21 October.  This is the consultation I have referred to with Dr Huntley.

65. [65]
    I should note also that on 13 October 2011 the plaintiff sent an email to Kate Pinkard, who was a rehabilitation case worker with QR. In it the plaintiff said, some 11 days after the initial incident, “back of my head still aches a bit and is still tender to the touch. It’s been almost two weeks, so I should probably get it checked”. There was no mention of any emotional symptoms. In reply Miss Pinkard told the plaintiff that she thought “it is a little bit concerning that it still aches two weeks later so I would be suggesting that you make an appointment to see your GP for review.”

66. [66]
    Exhibit 23, QR’s rehabilitation case notes also refer to phone calls to the plaintiff on both 3 and 5 October in which the plaintiff said his head was still hurting a bit and he was taking Panadol for the pain in the back of his head, and a twinge in his back. There is no reference to any emotional symptomology.

67. [67]
    Whilst there is reference in that exhibit to the plaintiff complaining of still suffering headaches as late as 20 October, consistent with his complaints to Dr Huntley and Dr Carter, that there is no reference at all to any at the emotional problems of which he complained at trial.

68. [68]
    Mr Sims in a further email, of 28 October, being part of exhibit 25, noted that after seeing the doctor (on either 21 or 28 October) the CAT scan was “positive” and as a result the plaintiff was “able to resume normal duties as from Wednesday 2 November and not Wednesday 9 November as previously advised”.

69. [69]
    In my view the history of the matter contained in contemporaneous documents is of significant importance. In the resolution of issues of credit contemporaneous records are almost always of significant help. Oral recollections of what people believe may have been their condition can often be misleading. It seems clear there was no complaint of what might be described as developing psychological or psychiatric ill health at any time up to the end of October 2011.

70. [70]
    The defendant’s counsel, at [6] of his submission to a passage in the judgment of Lord Pearce in Onassis and Calogeropoulos v Vergottis (1968) 2 Lloyd’s Rep 403 at 431, approved in Withyman v NSW [2013] NSWCA 10 at [65], as follows:

""Credibility" involves wider problems than mere "demeanor" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." (My underlining)

71. [71]
    Other than the plaintiff’s oral evidence of developing emotional symptoms from early October 2011, and the possible reference thereto in his diary note, the first record of any such symptoms are those of Dr Huntley concerning the consultation with the plaintiff of 17 January 2012 (see exhibit 1, Medical Records, p 2). Dr Huntley records that the plaintiff then said that since being kicked (on October 2) he got “teary easily” and “cannot concentrate”. He notes the plaintiff said he “was put off his work”. A mental health care plan was developed and the plaintiff was referred to a psychologist, Mr Chris Frank.

72. [72]
    On 25 January the medical records note that alternative work was “not comfortable for me”. By 30 January Dr Huntley records that the plaintiff was reacting “like PTSD”. On 10 February all was “going well now”. He was seeing Mr Franks. He continued to consult the practice.

73. [73]
    On 30 March the plaintiff again saw Dr Carter, whom he had first seen at the practice on 28 October 2011. Dr Carter asked the plaintiff to tell him why he was unable to work and records that the plaintiff said;

“PTSD which had been present for the last 2/12”.

74. [74]
    That would of course date such symptoms from late January 2012, generally consistent with Dr Huntley’s notes of the consultation of 17 January, and significantly inconsistent with the plaintiff’s oral testimony at trial of his significant symptomology immediately after the initial assault of 2 October, exacerbated by events of 12 and 17 November. Furthermore, Dr Carter asked the plaintiff why he was unable to work and notes the plaintiff said “there was an investigation into his work practice (sic)” and that he viewed the video of the attack.

75. [75]
    It is apparent from the CCTV footage, especially of the third incident, why the plaintiff’s behaviour was of concern to QR. He is shown arguing with another employee and is shown leaving the office and confronting a member of the public. Subsequently an associate of that person, a young woman, is shown kicking and apparently breaking the glass door of the station office. The plaintiff’s counsel accepts his conduct on this occasion did not accord with QR guidelines, but attributes it to the plaintiff’s stress arising from the first two incidents.

76. [76]
    At paragraph 28 of his written submissions Mr Kimmins says;

[28] “The plaintiff was not thinking correctly due to the state of his mind after the previous two incidents, and exiting the office was not something he would normally do in a heightened situation.

[29] The plaintiff does not recall the conversation he was having with the people outside the office.  He only remembers that they were upset that he had raised his voice to Ayleen.

[30] The plaintiff was shaken and upset and was in tears.  He went back to staring at walls and matters came back to him about the first incident.  He did not ever relive the third incident.” (Transcript references omitted).

77. [77]
    I’ve noted already that the plaintiff’s asserted emotional condition at that time was unsupported by the content of contemporaneous records or by other evidence.

78. [78]
    A question which therefore arises is whether there is another explanation for the onset of significant emotional symptoms in January.

79. [79]
    On 25 November the plaintiff received a letter excluding him from the workplace. The letter is part of exhibit 7 and indicates QR’s concerns that the plaintiff had placed himself in unsafe situations, putting himself and customers at risk. The letter continues:

“An investigation of this matter has commenced and you will be excluded from the work place effective Thursday 24 November 2011.  The exclusion is for a period of 72 hours which is due to expire on Sunday 27 November 2011.  Given that your exclusion period is due to expire on a weekend, this period will need to be extended until 1600 hours, Monday 28 November 2011.  You will be notified in writing if your exclusion is extended.

During this period you will be excluded from the work place and you are not to attend any Queensland Railway workplace for work purposes unless requested…

During your exclusion you may be required to assist us by making yourself available (during business hours) and provide any documents, electronic files or other information that Queensland Rail requests”.

80. [80]
    This letter, and indeed each of the letters which comprise exhibit 7 and which I shall shortly consider, refers the plaintiff to the Employee Support (counselling) services. A phone number for that service was provided. The plaintiff did not make contact with anyone from that service.

81. [81]
    That exclusion period was by letter of 28 November (also part of exhibit 7) extended to Thursday 1 December and by letter of 1 December and as “agreed with Tony McLean on 30 November 2011…will remain in place until further notice or until this matter is finalised.”

82. [82]
    Finally on 20 December, almost 4 weeks after he was first suspended on 24 November, he was advised:

“As previously discussed with Mr Tony McClain your exclusion period has now ceased and you are now required to report for your next rostered shift at 1835 on Wednesday 21 December 2011, at Caboolture station.”

83. [83]
    After his then return to work the plaintiff was assigned to alternate duties in a supervised role at Caboolture station. He says that after only a small number of shifts he felt he was unable to continue work. This is presumably why on 25 January he told Dr Huntley work was “not comfortable to me” as earlier noted. In fact he said in evidence he hid in a small room for long periods (T1-82 L15-21). I make no finding that in fact occurred. Soon after he lodged the Work Cover claim which was ultimately accepted and backdated to January 4.

84. [84]
    On December 2^nd the plaintiff had attended a meeting with representatives of his union at QR offices.  Tony McLean, Claire Gosewisch (a senior HR advisor), and Glen Keong a Customer Service Attendant, were also present. A memo of that meeting is Ex 20. The purpose of the interview was said to be to obtain further information from the plaintiff regarding a written complaint he had made in relation to the conduct of Ayleen Gordon, which immediately preceded the third incident.  It seems that the plaintiff believed that Ms Gordon was somehow to blame for the conduct of the youths leading to the confrontation between he and one of the youths after Ms Gordon had left the office.  The plaintiff appeared to suggest that she had raised her voice and had not remained at the station to quieten down the youths who were upset that the plaintiff had raised his voice at a woman. Although the purpose of the meeting was not to consider the plaintiff’s injuries arising from his employment, there is nothing in that interview to suggest the plaintiff was at that time significantly emotionally distressed by the incident on October 2 or by this 3^rd incident. I note he was again referred to the Employee Support Line.

85. [85]
    An obvious issue is thus whether the plaintiff in fact decompensated emotionally only after his being excluded from the work place and then returning to work in a role that was apparently unacceptable to him or whether he had exhibited signs of significant emotional distress from as early as the first week of October 2011, which was then exacerbated by the subsequent two incidents. In any case it is also necessary to consider whether or not the defendant’s negligence, was a cause of those incidents and especially the first.

86. [86]
    But for Exhibit 24 I would have little hesitation in concluding that the cause of the plaintiff’s distress when he saw Dr Huntley were the circumstances surrounding his being excluded from the workplace as a result of his complaint about Ms Gordon and QR’s investigation of that and his reaction to QR’s awareness of the circumstances of the incidents, including the first incident. His job must have been important to him. He had not worked for 23 months prior to November 2010 and was still only a casual employee. He needed to work as an AD employee until about mid-2012 to gain a permanent position. He must have seen that possibility was threatened by his return to a supervised position in December 2011, and by their earlier exclusion of him from the workplace.

87. [87]
    Those matters, and his personality, I conclude, caused his emotional response necessitating his seeing Dr Huntley and consequently Chris Frank in January 2012. By the time he saw them a WorkCover claim had been made.

88. [88]
    Whilst Exhibit 24 causes me some doubt it does not cause me to conclude otherwise. I have said already that only the photocopy of a single page of the Spirax pad said to be his diary was produced. I therefore cannot read it in context. I conclude there was no other page of the diary which might have been a contemporaneous record of his alleged then emotional distress – the absence of such a page is a strong indication of that. The entry does not refer to the cause of the alleged “breakdown”. It is insufficient for me to accept the plaintiff’s evidence about the onset of significant distressing symptoms immediately after the October 2 incident, or his evidence as to the cause of his subsequent symptoms.

Alleged Breach of Duty

89. [89]
    The plaintiff’s allegations of breach of duty by the defendant are set out in paragraph 16 of the Further Amended Statement of Claim. Counsel for the plaintiff, in part 12 of his written submissions, sets out the basis for the alleged breach of duty under three headings, namely:

1. Failure to undertake psychological profiling (part 12.1 of submission, being paras 92-119 thereof).

2. Failure to properly train the plaintiff as an AD employee including failure to provide conflict management training after the first incident (part 12.2, being paras 120-167 thereof). 

3. Breach of section 28 of the Workplace Health and Safety Act (part 12.3, paras 168 thereof).

90. [90]
    The Plaintiff’s counsel accepts that, generally, an employee is not required to undertake psychological profiling of an employee. He refers however to observations of Thomas J, with whom McPherson JA agreed, in Finn v The Roman Catholic Trust Corporation for the Dioceses of Townsville [1997] 1 QdR 29 at 35 namely;

“In my view unless some fact, circumstances or state of affairs which should put an employer upon special enquiry, there is no duty to interrogate either prospective or existing employees in relation to their health or history.”

91. [91]
    Such an approach has recently been adopted by McMeekin J in Clarricoats v JJ Richard and Sons Pty Ltd [2017] QSC 214 at [110] and [111] and by  Philippides J in Marshall v Queensland Rehabilitation Services Pty Ltd [2012] QSC 168 at [54].  Her Honour there formulated the relevant test as involving consideration of “whether there was any fact or circumstance which should have alerted a reasonable employer to any need for special further enquiry into the medical condition of the employee.”

92. [92]
    In support of the view that it was appropriate to enquire of or examine the plaintiff in relation to his psychological health prior to or after engaging him as an AD employee, the plaintiff’s counsel referred in particular to the contents of the RMI report. That report was obtained on 6 May 2002 and is at pages 1 – 69 of the QR documents section (Tab 4) of Exhibit 1.

93. [93]
    A number of features of the report are in my view of significance. In the executive summary, at page 1 of the report, it is said that QR had been “granted funds…to improve the quality of security at unmanned stations outside normal working hours. The initiative involves Queensland Rail stationing security guards at up to thirty stations outside normal working hours (to be phased in over a 5 year period).” It is said that the primary justification for the After Dark security initiative is to “improve the visible security presence at stations and so enhance the public perception of safety and security”. It is said that on that basis “the role requirements for a security guard are basic and should focus on the ability to identify, assess, monitor and observe developing issues, rather than require the ability to intervene in situations.” That requirement is important in this matter. The plaintiff accepted that was consistent with his understanding of the role.

94. [94]
    This overview of the role of an AD employee is amplified at page 29 of the report. The “Role Overview” of an AD security job is there stated in the following terms;

“On the basis of the proceeding analysis, the primary role of an “after dark” security guard must be to manage safety and security perception risk after dark at selected railway stations.

Therefore it would not be expected that the guard would need to intervene in a significant way in relation to safety or property protection issues, but would be expected to seek external assistance.”

95. [95]
    The expectations of the role are then set out. They include providing “a visible presence at selected stations…to enhance the perception of risk (i.e. lower risk) by customers” and “be highly visible to customers arriving, waiting or departing from the respective railway stations.” It was also expected AD employees would “be proactive ensuring the safety and security of staff and customers through continued surveillance of potential threats” and would “monitor, observe and take appropriate action to secure the safety and security persons on QR property.” They were also expected to “be confident in responding to situations involving heightened anxiety and which may involve aggressive acts against persons or property.” At p. 33 of the report RMI sets out a number of resources that would be required if QR were to choose to provide its own security force. I understand this to be reference to the AD employees being employees of QR, rather than externally sourced security personnel. Of particular importance to the matter under consideration is the recommendation at p. 34 that “given the discussion in section 10 above and the need for guards to be confident in responding to situations involving heightened anxiety and which may involve aggressive acts against persons or property, it is recommended that psychological profiling of prospective guards be undertaken, as the basis for ensuring that suitable persons are selected.”

96. [96]
    Counsel for the plaintiff submits that this recommendation in the RMI report that psychological profiling be undertaken to ensure that suitable persons are selected and the failure of QR to carry out such psychological profiling exposes them to a finding of breach of duty.

97. [97]
    The defendant’s counsel’s submission (para 71) notes that the allegation relating to psychological profiling “was a late addition to the Plaintiffs allegations, opportunistically made after reading the 2002 report on risk assessment by Risk Management Intercontinental Pty Ltd…which suggested psychological profiling of employees.”

98. [98]
    In my view whether it was a late addition – and it seems to have been made shortly before original trial dates in this matter in August 2016 – is inconsequential. My recollection – for I was the Judge who was to hear the matter in August 2016 – is that it was only then that the report was disclosed by QR. That late disclosure led to the adjournment of the trial. No doubt if the report had been provided in a more timely fashion by the defendant the allegation may have been made earlier. Ultimately however I do not think that of any importance. The question is whether profiling was required as a matter of fact and law and whether if it had been done, it would have meant the plaintiff would not have been employed as an AD employee so consequently not exposed to the incidents which in facts occurred.

99. [99]
    In support of the proposition that an employer does not have to investigate an employee’s physical or psychiatric health prior to the commencement of employment, the defendant’s counsel also referred to Finn v The Roman Catholic Trust Corporation for the Dioceses of Townsville (supra), but as I’ve already indicated, that general qualification is subject to the caveat earlier set out.  Mr Morton submits that the submission that there should have been psychological profiling of a person such as the plaintiff “runs counter to the notion that the High Court expressed in Koehler v Cerebos (Australia) Ltd [2005] 222 CLR 44 “where the Court pointed out that the employee’s agreement to do the work ran counter to the notion that there was any reason the employer should suspect that it was dangerous to the employee’s psychological health.”  He submits that many people - taxi drivers, bus drivers, nurses and others - working at night are exposed to risks of injury and submits that an employer dos not have to psychologically profile them all. He also submits that there was no evidence as to what would have been revealed had any psychological profiling been undertaken.  In my view that submission does not overcome the importance of the caveat to the general principle that profiling is not required as expressed in Finn v The Roman Catholic Trust Corporation for the Dioceses of Townsville (supra).

100. [100]
     In submissions in reply, Mr Morton also submits that the RMI report “was in relation to a different role. It is plain on its face it was in relation to a security guard role. The plaintiff was not a security guard, something that he well understood. …It is not open to make findings against the defendant on the basis of a document that was ten years old and which did not relate to the situation in which the Plaintiff was working. That document dealt with a security guard role. The plaintiff was not a security guard. He was a customer service attendant who worked at night. The RMI report is simply irrelevant.”

101. [101]
     In order to consider that submission it is necessary in my view to refer to the position description for a Customer Service Attendant (After Dark) (pages 28 – 31 of the Employment Documents section of exhibit 1, being the first tab in that exhibit). The wording of the Position Description is remarkably similar to that in the RMI report. In a sub heading “Responsibilities” the Position Description sets out the following;

“1. Provide a visible presence at selected stations…in order to enhance the perception of risk (i.e. lower risk) by customers ensuring high visibility to customers arriving, waiting or departing from the respective railway stations;

2. Ensure the safety and security of staff and customers proactively who continued surveillance of potential threats and assessment of those threats;

3. Monitor, observe and take appropriate actions to secure the safety and security of persons on QR property;

4. Respond confidently to situations involving heightened anxiety and which may involve aggressive acts against persons or property.”

102. [102]
     Other responsibilities are also enumerated but in my view the similarity between the words in the Position Description and those in the RMI report are remarkably similar. So too the Key Selection Criteria in the Position Description are said to be;

“1.  High interpersonal, communication and problem-solving skills enabling on the spot decision making for safe resolution of difficult and dangerous situation.

2. High level of skill in providing customer service to both internal and external clients particularly in distinguishing and clarifying customer requirements and potential needs.”

This too is reflective of the language in the RMI report.

103. [103]
     In my view consideration of the RMI report and of the Position Description that I’ve set out causes me to reject the submission of defence counsel that the RMI report was in respect of a significantly different role. Specifically, I reject the notion the report was in respect of a security guard role and the plaintiff’s job was something significantly different. The expectations of the position (at 10.1, p 29 of the report) make it clear that the role was something less than might commonly be envisaged by a “security role”. The statement of responsibilities in the Position Description and the identified selection criteria very closely reflect the language used in the RMI report.

104. [104]
     Merely because the RMI report had recommended psychological profiling, is not determinative of the issue. It is however, in my view an important fact to be considered in determining whether or not there was “any fact or circumstance which should have alerted a reasonable employer to any need for special further enquiry into the medical condition of the employee”, to adopt the words of Philippides J in Marshall  v Queensland Rehabilitation Services Pty Ltd (supra).

105. [105]
     Apart from the RMI recommendation, the defendant’s own experience with AD employees ought, I conclude, have alerted it to the need for such profiling.

106. [106]
     One of the reasons RMI recommended profiling was because QR, in prioritising stations considered suitable for placement of an AD employee, considered police crime statistics in making that determination (see for example Part 2.3 of the report). Whilst other factors – patronage, whether a station was a “nodal station” and strategic significance – were also used, Burpengary, where the first incident occurred, was ranked in the top 10, fifth in fact, and selected as one of the initial stations for AD deployment.

107. [107]
     That QR employees were at risk of assaults is clear. Document 2 of the QR document section of Exhibit 1 is a QR report entitled “Employee Violence Elimination Strategy 2011-2013”. There had been an earlier similar report in 2009. The report recognises the significant risk of assaults against QR employees. There were some 22 assaults against station staff in 2009, 19 in 2010 and 18 in 2011 (see pages 89-90 of that Exhibit). Details of assaults at Burpengary, Morayfield and Zillmere stations, where the three incidents occurred are set out at pages 117 to 128 of Exhibit 1.

108. [108]
     At page 129 of the Exhibit is a QR prepared document entitled “Station Operations Guardian Station”. It is dated 5 August 2013, so 23 months after the first incident. It includes a review of the AD initiative. The report notes that the initiative, which involved the decision by QR to use internal QR employees rather than “private security” as had originally been intended, had not been a success. One of the causes identified for that lack of success was said to be “skills not specific for the role”. It seems to me that is clearly applicable in respect of the plaintiff. More importantly, the report notes:

‘“After dark’ positions account for less than 5 per cent Stations Operations total positions.  However the last three years they represent 50 per cent … of the total cost of Worker’s Compensation claims.”

109. [109]
     The figure of 50 per cent was said to be an estimate and was waiting confirmation by WorkCover. Although that report was no detailed until August 2013 the information in it was available to QR earlier.

110. [110]
     Consideration of such issues causes me to conclude that by the time of the plaintiff’s engagement as an AD employee in August 2010, and certainly by the time of his entering into his third casual contract on 14 June 2011, QR must have known AD employees faced a significant risk of assaults and/or other injury and, as the RMI report had earlier noted, therefore needed to engage staff likely to “be confident responding to situations involving heightened anxiety and which might involve aggressive acts against persons or property”.

111. [111]
     If QR had undertaken profiling as recommended by RMI I have no doubt it would have determined the plaintiff was not suitable to be engaged in an AD role. Although, as defence counsel submits, there is no direct evidence of what profiling would have revealed I have no doubt that the plaintiff’s personal circumstances and history would have meant he would have been assessed as unsuitable for a role as an AD employee. If such an assessment had been made then I conclude the plaintiff would not have been engaged as an AD employee. As a consequence he would not have been involved in the incidents and would not have been excluded from the workplace as he was. He would not have reacted as he did in January 2012 causing him to lie Dr Huntley, then Mr Holms.

112. [112]
     It is important also to understand that features of the plaintiff’s character which ought, as I have found, have been identified by profiling have contributed to each of the incidents. His remaining at the station near the edge of the platform and so near to the group of verbally abusive youths, his effectively walked through the girls at the top of the stairs and his misconduct in arguing with, and then leaving the office and “eyeballing” a youth at the time of the third incident as set out earlier are all I think attributable to his peculiarities of personality.

113. [113]
     All three incidents were in part related to issues with the plaintiff’s confrontational character which ought to have been ascertained by QR through profiling.

114. [114]
     In such circumstances I find the defendant breached its duty of care, altered by the provisions of ss 305B to 305E of the Workers Compensation and Rehabilitation Act (WCRA).  In my view the risk of psychological injury to the plaintiff from his work was foreseeable, was not insignificant and, in the circumstances, QR should have taken precautions against that risk by conducting psychological profiling before employing the plaintiff.  But for the defendant’s breach the plaintiff would not have suffered the injury he did since he would not have been in the situation which led to the incidents.  It is appropriate that the defendant be liable to the plaintiff for the consequences of its breach.

115. [115]
     I might add that but for that finding it is not possible in my view to determine that any other negligence of the defendant resulted in injury to the plaintiff. It is not enough that the plaintiff prove only the possibility that he might not have been injured if the defendant had undertaken further steps such as training or post injury counselling to minimise the risk of injury.

116. [116]
     In Tabet v Scott (2010) 240 CLR 538, Kiefel J (as her Honour then was) said at [111];

“The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant's negligence caused the injury or harm. "More probable" means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.” (citations omitted)

117. [117]
     If the plaintiff had been given further training or had (despite his denial when asked about his role being of any symptoms other than the headache for which he saw a general practitioner) been referred for counselling, the outcome was likely to have been the same or very substantially so. The attitude of the assailants in the first incident was such that the plaintiff adopting another stance or using other language was very unlikely to have led to a different outcome. The assailants were … in assaulting him. The critical issue from the employer’s point of view was the plaintiff decided to remain on the platform despite his knowing of the need to withdraw from any danger. He had also been advised of confidential counselling and determined not to utilise that. His denial to QR staff of any emotional symptoms meant they had no reason to insist he see anyone for counsellors to overcome the possibility of any unobservable and unknown emotional symptoms.

118. [118]
     In counsel’s submissions the issue of contributory negligence was not raised, although it was pleaded. In the circumstance of my finding that the defendant was negligent in engaging the plaintiff as an AD employee without undertaking psychological profiling that is appropriate. I have concluded that if profiling had been undertaken the defendant would not have employed the plaintiff because such profiling would have indicated, inter alia, that he was unable to effectively deal with threatening situations. He was likely to respond with anger or defiance. In circumstances where it was that very shortcoming which resulted in the plaintiff being involved in the incidents it is not appropriate to also find that he has contributed to those events by his own negligence.

119. [119]
     That is not to say that it would so conclude if the plaintiff’s conduct had been more overtly antagonistic. There must be a line where a plaintiff’s conduct would amount to contributory negligence, even in circumstances where the defendant’s liability was due to its failure to conduct profiling. In my view the plaintiffs conduct was consistent with what might have been revealed by profiling, so that I make no such finding.

Medical evidence

120. [120]
     The plaintiff relies on reports of Dr Eric de Leacy, a psychiatrist. Dr de Leacy has consistently diagnosed the plaintiff as suffering from PTSD arising from the subject incidents. In particular he says the plaintiff’s condition developed as a result of the assault of 2 October and was exacerbated by the two subsequent events. He also says the plaintiff’s condition was exacerbated by his viewing of CCTV footage of the first incident during the course of QR’s investigation following the plaintiff’s suspension from work on 24 November 2011.

121. [121]
     There are a number of features of Dr de Leacy’s reports and evidence which are of importance having regard to findings I have made in the matter.

122. [122]
     Contrary to the plaintiff’s evidence before me, Dr de Leacy does not say the plaintiff was distressed after the initial incident. He refers to the violent nature of the incident and says it would have been distressing, but does not suggest the plaintiff told him of the onset of the symptoms he described in his evidence. I have no doubt the assault was distressing. I also have no doubt that that does not inevitably mean that the plaintiff would have been psychologically distressed, in the sense that he exhibited significant symptoms thereafter. Dr de Leacy says that watching the subsequent footage of the first incident “caused his distress”. That assessment depends on an acceptance of the plaintiff’s evidence about that. He certainly did not seem distressed when viewing it before me, though he may, of course, have become desensitised from seeing it numerous times over time.

123. [123]
     In my assessment the plaintiff’s description of the second incident to Dr de Leacy also suggested that it was significantly more serious than it in fact was. He spoke of a number of indigenous youths attacking him and he having to fight them off. That did not occur. So too in describing the third incident to Dr de Leacy the plaintiff minimises his own conduct, not telling Dr de Leacy that he voluntarily left the safety of the office and confronted the youth outside.

124. [124]
     Such matters reflect poorly on the plaintiff’s credit. In my view his description of symptoms when giving evidence was significantly exaggerated.

125. [125]
     Whilst recognising that symptoms of PTSD can develop over time, and not immediately after a traumatic event, I do find his symptoms developed only from January 2012. Any prior symptoms were very minor.

126. [126]
     I find the plaintiff also downplayed conditions he suffered that pre-dated the incidents themselves. For example, although he was, according to the Caboolture Hospital records 170kg on October 2, 2011, he told Dr de Leacy he gained a lot of weight after the incidents suggesting that he was comfort eating due to anxiety (see Exhibit 1, p 3.9, p 13.6 and p 22.7). Although he did increase his weight after these incidents, he had I find, real problems with his weight from his childhood, consistent with Dr Zimmerman’s report earlier referred to. He was very prone to weight problems and that is as likely to be due to anxiety about his employment as PTSD. In such circumstances, I also find it improbable that problems with sleep apnoea are significantly related to anxiety arising from the incidents of his employment – they are as likely to be due to his fears concerning his employment arising from QR suspending him in November 2011.  There are also references to investigations for sleep apnoea significantly earlier.

127. [127]
     I find too that the plaintiff’s complaints that Dr de Leacy of impairment of his social circumstances are not accurate. It is clear that his enjoyment of life was diminished even before the incidents. I have referred to such issues earlier. His continued obesity, his very poor employment record prior to commencing with QR and his lack of social contact, other than with his immediate family, are all significant factors. So too his failure – twice – to complete the last three months of a 12 month certificate course related to information technology, allegedly due to the need to care for his ill father, is a cause for concern.

128. [128]
     In circumstances where Dr de Leacy opines that the plaintiff is dependent on his brother to an unhealthy extent – saying “it is not normal to be so dependent” – it is unusual that his brother was not called to give evidence. The evidence of the plaintiff was that he and his brother share a dwelling. Not only could his brother have spoken of his current condition, and the level of his dependence, but, presumably, would also have been able to speak both of the plaintiff’s condition prior to October 2011 and of the emergence of symptoms immediately thereafter. I conclude that any evidence of his brother would not have assisted the plaintiff (see Jones v Dunkel (1959) 101 CLR 298 and Rossi v Westbrook & Anor [2011] QSC 311 and on appeal [2013] QCA 102 at [26]). That does not mean, of course, that I can infer it would have been adverse to the plaintiff.

129. [129]
     Another feature of the history given by the plaintiff to Dr de Leacy concerned his schooling and employment history. In his first report Dr de Leacy noted his primary schooling was reasonable, and that he coped adequately and mixed reasonably well. He makes no mention of difficulties at high school or of the significant periods of unemployment, especially the significant 23 months during which he was unemployed prior to starting with QR.  (See for example, Exhibit 3, p 4.9).  This is repeated in his reports of October 2014 and August 2016.  In his last report of 27 October 2017 Dr de Leacy addresses issues concerning the plaintiff’s consultation with Dr Zimmerman in 2011.  He suggests it was a relatively isolated incident associated with his being bullied about his size to which he responded aggressively.  Dr de Leacy says “matters improved when he changed schools and he learnt to control his emotions better and had little difficulty since”.

130. [130]
     In my view this significantly understates the issues about which the plaintiff saw Dr Zimmerman in 1999.  He was only 14 at the time and no doubt may well have been teased at school due to his size.  Dr Zimmerman notes however that he also changed schools some 18 months previously for the same reason.  His mother reported him waking in the very early hours of the morning and prowling the house.  Dr Zimmerman notes he was “continually yawning” through the interviews.  Dr Zimmerman described him as having “major behavioural problems and severe daytime somnolence.  This somnolence was also referred to in a report of Dr Appleton obtained at about that time.

131. [131]
     The plaintiff had been referred to Dr Zimmerman by his GP, along with his 12 year old brother, for possible sleep apnoea, a condition his father also had (see Exhibit 11, p 254). In October 2010 when the plaintiff was 16 his general practitioner Dr Stephenson noted he “has been suffering from multiple illnesses since June 2000 which would have impacted his ability to study especially the daytime somnolence” (Exhibit 11, p 257).  In January 2000 a thoracic physician, Dr Masel had said he didn’t have a significant sleep apnoea but also noted that there had been no psychological improvement with CPAP therapy (Exhibit 11, p 269).

132. [132]
     While there is no history of medical consultations for psychological issues between when he was 16 and the subject incidents 10 years later, there were significant issues in his life – his weight, relative social isolation, long periods of unemployment before starting at QR, lack of personal relationships, an inability to complete either of two year-long TAFE courses.

133. [133]
     In my view Dr de Leacy does not address the importance of such issues in his reports or evidence. His diagnosis of PTSD is made in circumstances where he very largely accepts the plaintiff’s statements about the occurrence and effect of the three incidents – contrary to my findings about both – and does not appear to realistically have been alive to the likelihood that the plaintiff may have been vulnerable to the onset of psychological symptoms arising from concern about the future of his employment with Queensland Rail.

134. [134]
     The reports of Dr Steinberg on which the defendant relied comprise Exhibit 5. He too gave evidence. He said in his report of 3 March 2014 that the plaintiff described his greatest difficulty as disturbed sleep. He described nightmares about once a month involving his being assaulted. He said he plays on his computer, browsing the internet and playing strategy games for up to 10 or more hours per day. His only described activities outside the computer and cooking were going to a gym at a medical centre two to three times per week and doing “all the shopping” for himself and his unemployed brother. He said he didn’t have many friends, lacked any sort of motivation, and his personal hygiene had declined. He described anger problems. He said his life was “on hold”, waiting for the outcome of his court case. He hoped in the future to be able to return to study and perhaps become a teacher.

135. [135]
     Dr Steinberg noted the plaintiff’s sporadic employment history after leaving school (likely to have been in December 2001).

136. [136]
     He recounts the first incident and notes that whilst the plaintiff was shocked at the attack he said “he didn’t think he was going to die”. He denied feeling anxious, agitated, hypervigilant or jumping – presumably meaning he did not have those symptoms immediately after the incident.

137. [137]
     He described an incident of 7 October, clearly that referred to in his diary note, and of having “an anger attack”. He said he was fearful and angry on hearing young men of similar age to his assailants talking nearby to him.

138. [138]
     In the overall circumstance I am not able to conclude the events of 2 October played a significant part in such an “anger attack”. It was very likely to be related to the plaintiff’s underlying personality which as I have said manifest it, and so contributed, to each of the three incidents. The absence of any pages of his diary setting out any such prior symptoms and in the absence of any complaint to QR staff or to doctors at the time causes me to conclude that he was not then suffering significant symptoms from the attack of 2 October.

139. [139]
     At page 7 of Dr Steinberg’s initial report he sets out the plaintiff’s complaint that he was put off work because the defendant was “trying to cover their asses”. He claimed to have become distressed watching the video. I note that when viewing the videos of all three incidents at the trial, which he did a number of times, he did not exhibit any signs of distress that I could observe. Dr Steinberg noted that the plaintiff was then 194 Kgs and had lost 3 Kgs since December 2013. That suggests he gained some 27 Kgs over the prior two years.

140. [140]
     Dr Steinberg noted the plaintiff’s father’s significant medical complications from obesity. He referred to the plaintiff being bullied at school and of only ever having few friends. His only source of social interaction appeared to have been the internet, playing games and engaging in chatroom conversations.

141. [141]
     The plaintiff told Dr Steinberg that from 2002 to 2005 he cared for his father, receiving a carer’s allowance. Dr Steinberg says that thereafter up until November 2009, he worked for six months for an internet company and otherwise only ever had one to two weeks work at a time. The reference to work for 6 months seems clearly to be a reference to his employment at Unisky for six months up to 16 December 2007.

142. [142]
     Ultimately Dr Steinberg diagnoses an adjustment disorder with depressed mood and a major depressive disorder, the latter of which was then in remission. He also diagnosed avoidant personality traits and noted general medical conditions of obesity and sleep apnoea. Dr Steinberg disagreed with the diagnosis of post-traumatic stress disorder made by Dr De Leacey and the others, noting instead that the plaintiff had become angry and depressed after he felt QR had told him he was partly to blame for what happened. He says the adjustment disorder exacerbated his avoidant behaviour. He says the plaintiff did not describe a range of symptoms consistent with PTSD. Dr Steinberg assessed a PIRS impairment of only one per cent, principally related to his inability to work in his prior role because of the risk of him becoming angry.

143. [143]
     The defendant submitted that the adjustment order diagnosed by Dr Steinberg was triggered by his perception of the way QR dealt with him after the incidents. Dr Steinberg suggested that was so in his first report (see p 19 thereof). I accept that as so. His symptoms emerged only after he was required to work in an alternative supervised condition. Thereafter his personal vulnerability allowed the condition to fester.

144. [144]
     In my assessment however that condition was caused by the negligence of QR in not conducting profiling. If profiling had been conducted, and the plaintiff not offered a position as an AD employee, the events would not have unfolded as they did. Put shortly, he would not have then developed the adjustment disorder, or earlier depression that Dr Steinberg identified. Whilst vulnerable to such conditions the lack of profiling meant he was working as he was, responded in the way he did, was censured and decompensated.

145. [145]
     In my view the diagnosis of Dr Steinberg is preferable to that of Dr De Leacey. In making that assessment I am conscious that Dr De Leacey’s diagnosis is consistent with that of other doctors who have seen the plaintiff, but who did not give evidence. In the absence of evidence that they had considered all of the evidence before me, particularly that concerning the plaintiff’s prior vulnerabilities and history and were conscious of the fact – consistent with my finding – that a major source of his distress was his concern about possible loss of his job, and that he did not develop psychiatric symptoms until January 2012, I am unpersuaded by the weight of numbers. The plaintiff’s lack of emotional response when viewing the videos before me also plays some small part in my assessment.

146. [146]
     Dr Steinberg concludes in his report of March 2014 that the plaintiff may have had a major depressive disorder in 2012 but which was now in full remission. I accept that in 2012 he was significantly depressed as a result of all that had occurred at his work, including his concern that his hope for long term employment might be dashed.

147. [147]
     Dr Steinberg did not think the plaintiff’s condition arising from the workplace significantly impacted his capacity to work. Rather he thought, that his major problem was lack of skills and qualifications. I also conclude however that his lack of motivation is a significant inhibitor to his gaining employment up to the present, and that is significantly related to his anger about what he perceives as QR’s conduct. Dr Steinberg says that he said himself his life was on hold, waiting for the conclusion of his common law claim.

148. [148]
     In the subsequent report of 14 November 2016 Dr Steinberg says the plaintiff told him he had been looking for work until 12 months ago, applying for a number of administration or help desk type jobs. He gave evidence to similar effect. This suggests that for some time prior to November 2015 the plaintiff thought he was capable of employment. He said that he had a number of interviews but had not been able to find work.

149. [149]
     Dr Steinberg said the plaintiff appeared to have symptoms of depressed mood and a major depressive disorder, presumably in 2012, which was successfully treated with Lexapro. Despite his stated dependence on his brother, for which the plaintiff said his brother received a carer’s allowance, Dr Steinberg said he “cannot explain why he has become dependent on his brother. He does not have a psychiatric illness which causes him to require assistance with activities of daily living”. I agree with that assessment also.

150. [150]
     Dr Steinberg concludes that the plaintiff is preoccupied with the legal proceedings. He says the plaintiff has a personality which predisposes him to developing abnormal illness behaviour and that the court proceedings are perpetuating his symptoms. Dr Steinberg anticipates a resolution of court proceedings will lead to increased independence.

151. [151]
     He assessed that the plaintiff now has no permanent impairment but said he has elements of abnormal illness and had a premorbid, avoidant and dependent personality type.

152. [152]
     Whilst generally I prefer Dr Steinberg’s assessment to Dr De Leacey’s - largely because his understanding of the facts is much more reflective of my own view than Dr De Leacey’s – I do think that the plaintiff remains somewhat affected by his work as an AD employee. I accept that the plaintiff’s premorbid condition plays a major role in his symptomology, but it is nevertheless the case that but for the plaintiff’s decision to employ the plaintiff as an AD employee, and to do so without conducting a psychological profile, he would not have developed the initial depression Dr Steinberg diagnosed and may even still be employed as a CSO. He has continued to have symptoms of psychological distress because of his underlying vulnerabilities and personality.

153. [153]
     The great difficulty in assessing the plaintiff’s damages of course is that if profiling had been undertaken it would, I find, have been determined the plaintiff was not a suitable candidate for an AD job. That means he would not have been ever employed as an AD employee and, from about August 2010 would have been at risk of not having his casual employment as a CSO renewed. There was no evidence before me to allow me to conclude what QR would have done in such circumstances. Logic might be thought to dictate that his future with QR would be very limited but there may have been industrial relations issues which would have affected that outcome. The absence of any evidence from QR about that issue was important. I assume, consistent with Jones v Dunkel (supra), that there was nothing, or at least little, which QR could say which would have assisted their case.

154. [154]
     That does not mean that I conclude that the plaintiff’s damages should be assessed on the basis that he could, or would, have worked for QR indefinitely. But it does I think lead me to the conclusion that he had some prospects of continued employment at QR in the short to medium term. In the long term, it is unlikely that he would have continued in such employment, either because QR would have dismissed him, or because the development of psychiatric symptoms as a result of his vulnerable personality might have disqualified him from continued employment. He might indeed have left on his own volition, distressed by QR’s rejection of him as suitable for AD employment. In circumstances where he was only a casual employee, it would presumably not have been difficult for QR to have declined giving him a further contract.

Damages

155. [155]
     In such circumstances I turn to assessment of the plaintiff’s damages. His psychiatric injury in my view falls within item 12 of Schedule 9 of the Workers Compensation and Rehabilitation Regulation. A mental disorder with a PIRS rating of 4%-10% is an example of such an injury.  Here I do not think the plaintiffs PIRS assessments by Dr de Leacy or Dr Steinberg are critical. He has however endured and continues to endure moderate levels of distress. I do not accept much of what he says of his disability, and do not accept his evidence about his dependence on his brother. Most of his impairment, I find, relates to his agitation at being laid off by QR and now effectively being unable to find employment. I would assess his ISV at 6, amounting to general damages of $7500.                                

156. [156]
     If he had been employed as a CSO from January 2012 to 17 November 2017 his loss, calculated by his counsel in his submissions, amounts to $215,153. His current earnings would be $759 per week. His loss from the date of counsel’s calculation, namely 18 November 2017 to 15 March 2018 (17 weeks) amounts to a further $12,903. In all therefore his loss from 4 January 2012 to date, if he had been fully employed as a CSO, would be $228,056.

157. [157]
     Although as I said the defendant did not call evidence on the issue I think the plaintiff could not reasonably have expected to have been employed for more than about half of that period. It is possible, as I said, he might not have been employed under another contract as a casual CSO from as early as 2010, even prior to these incidents. In that circumstance I assess his past economic loss in the sum of $114,028.

158. [158]
     He would be entitled to interest on the sum of $78,857, being his past economic loss less compensation payments of $35,170, at 1.435 per cent per annum for 6.2 years amounting to $7,015. He would also be entitled to superannuation entitlements at 9.1 per cent of his past loss amounting to $10,376.

159. [159]
     His future economic loss is even more problematic. Not only must the possibility, indeed likelihood, that his employment would have been determined by now be considered, but there is also the strong prospect that, after completion of this litigation, the plaintiff’s condition will ameliorate consistently with Dr Steinberg’s view, and that he will return to paid employment. I think that prospect is in fact highly likely.

160. [160]
     I also have no doubt the plaintiff’s past employment history, at least partly caused by QR’s negligence, will make his obtaining work somewhat difficult.

161. [161]
     I would allow his future loss in the sum of $40,000 and allow superannuation thereon in the sum of $4,060, being 10.15 per cent thereof.

162. [162]
     In my view his claim for special damages of $10,536.91 ($6,306 of which is refundable to QR and $2,969.60 to Medicare) is recoverable. Interest on the balance of $1,261 should be allowed at 1.435 per cent per annum for 6.2 years amounting to $112.

163. [163]
     There is no basis for a claim for other than a minimal sum for future special damages which I assess in the sum of $1,000. After minimal further treatment the disorder assessed by Dr Steinberg should ameliorate sufficiently to allow the plaintiff to return to the workforce and lead a life significantly in accord with that he previously had.

164. [164]
     In all therefore I assess that the plaintiff’s damages is as follows:

165. [165]
     Subject to any submissions about mathematical calculations there will be judgment for the plaintiff in that sum. I circumstances where the parties have agreed on the form or the order, there is no order as to costs.