Wolters v The University of the Sunshine Coast
[2012] QSC 298
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- Wolters v The University of the Sunshine Coast[2012] QSC 298
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Wolters v The University of the Sunshine Coast[2012] QSC 298
Wolters v The University of the Sunshine Coast[2012] QSC 298
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Claim |
ORIGINATING COURT: | |
DELIVERED ON: | 5 October 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20, 21, 27, 28 and 29 August 2012 |
JUDGE: | Applegarth J |
ORDER: | The plaintiff be awarded nominal damages for breach of contract, otherwise her claim is dismissed. |
CATCHWORDS: | EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – Generally – Duty to take reasonable care to avoid psychiatric injury – where plaintiff was employed as a security officer at the University – where during a power outage at the University a superior (“Bradley”) aggressive confronted and verbally abused the plaintiff – where plaintiff suffered psychiatric injury – where another employee of the University had earlier suffered psychiatric injury as a result of similar conduct by Bradley and successfully claimed workers’ compensation – whether by failing to adequately investigate this incident and counsel Bradley the University breached its duty of care to the plaintiff – whether the University breached its contract of employment with the plaintiff – whether, in the circumstances, had the University fulfilled its duty of care by reprimanding and counselling Bradley the incident involving the plaintiff would not have occurred and she would not have suffered psychiatric injury Batiste v State of Queensland [2002] 2 Qd R 119, cited Betts v Whittingslove (1945) 71 CLR 637, cited Chappel v Hart (1998) 195 CLR 232, cited Czatyrko v Edith Cowan University (2005) 214 ALR 349, cited E M Baldwin & Son Pty Limited v Plane & Anor (1998) 17 NSWCCR 434, cited Flounders v Millar (2007) 49 MVR 53, cited Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, cited Gittani Stone Pty Ltd v Pavkovic (2007) Aust Torts Reports 81-924, cited Hegarty v Queensland Ambulance Service (2007) Aust Torts Reports 81-919, cited Jovanovski v Billbergia Pty Ltd [2010] NSWSC 211, cited Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, applied Lusk v Sapwell [2011] QCA 59, cited March v E & MH Stramere Pty Ltd (1991) 171 CLR 506, cited Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, applied Rixon v Star City Pty Ltd (2001) 53 NSWLR 98, cited Roads and Traffic Authority v Royal (2008) 245 ALR 653, cited Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, cited Sheather v County Energy (2007) Aust Tort Reports 81-901, cited Tame v New South Wales (2002) 211 CLR 317, cited TC v State of New South Wales [2001] NSWCA 380, cited Vairy v Wyong Shire Council (2005) 223 CLR 422, cited Wyong Shire Council v Shirt (1981) 146 CLR 40, cited |
COUNSEL: | S D Anderson for the plaintiff G C O'Driscoll for the defendant |
SOLICITORS: | Shine Lawyers for the plaintiff Bruce Thomas Lawyers for the defendant |
[1] The plaintiff, Ms Wolters, was employed by the defendant (“the University”) as a security officer. Her work impressed those who worked with her, including her supervisors who assessed her performance very highly. Ms Wolters took pride in her work and planned to work as a security officer at the University for a long time.
[2] Mr Mark Bradley was instrumental in the construction of the University of the Sunshine Coast. As an employee of the University, and as part of a team that built it, he achieved remarkable results. The University’s inaugural Vice-Chancellor, Professor Thomas, who worked closely with Mr Bradley, praised his professionalism in building the campus. He described Mr Bradley as a “very direct, hands-on person who got things done.” Mr Bradley’s background was in the construction industry. He held the position of Director, Capital Programs and Operations. In that role he had management responsibility for a variety of services, including security.
[3] On Friday, 14 March 2008 at around 8.25 am there was a power outage on the campus. During that episode Mr Bradley confronted Ms Wolters. He walked quickly towards her, yelled at her and waved his arms at her. He accused her of having abandoned her duties. He was wrong about that.
[4] During the confrontation Ms Wolters attempted to explain what she had been doing, but to no avail. Mr Bradley did not discuss matters with her. He ordered her to get on with her work, and stormed off.
[5] Mr Bradley’s aggressive behaviour and his unfair accusation against Ms Wolters left her in a bad state. By the time of that afternoon’s de-briefing of staff about the power outage, Mr Bradley had calmed down, and no mention was made at the de-briefing about any shortcomings in Ms Wolters’ performance. Still, she was badly affected by Mr Bradley’s behaviour that morning, and was so preoccupied by it that she inadvertently drove through a red light that afternoon when she had her children in her car. She struggled to work her rostered shift the next night, and after that she did not work another shift.
[6] On Monday, 17 March 2008 she was accompanied by a supportive work colleague to the Human Resources section where she complained about Mr Bradley’s behaviour. It declined to investigate her grievance.
[7] Mr Bradley learned that Ms Wolters had complained about his conduct, and he had reason to be concerned about what might develop. A few months earlier he had engaged in similar aggressive behaviour towards a fellow employee, Ms Heather Carney. His verbal abuse of Ms Carney on 13 December 2007 proved to be the “final straw” for Ms Carney, who never returned to work.
[8] On 19 December 2007 she lodged with the University a formal complaint of workplace harassment and bullying against Mr Bradley. This was never properly investigated by the University. On the same day she also lodged an application for workers’ compensation. She alleged that on 13 December 2007 Mr Bradley verbally abused her, yelled at her, was physically red, waved his hands and threatened her position. The University did not contest these allegations. On 15 January 2008 it was informed in writing that WorkCover had accepted Ms Carney’s claim for depression sustained on 13 December 2007.
[9] A few weeks later the University’s Director of Human Resources met with Ms Carney. She remained seriously depressed and did not want to return to the University, where she would encounter Mr Bradley. On 6 February 2008 Ms Carney signed a Separation Agreement with the University, whereby she accepted a “separation package” that included a redundancy payment. She did not withdraw her complaint against Mr Bradley or indicate that she no longer wished it to be investigated.
[10] By Monday, 17 March 2008 Mr Bradley must have known that he was the subject of another complaint of having aggressively abused a female employee. The best form of defence was to attack. Rather than check his facts and apologise to Ms Wolters for what he had said and done on the Friday, Mr Bradley wrote to the Vice-Chancellor about Ms Wolters and accused her of “Unsatisfactory Performance”. He accused her of a lack of judgment and inappropriate response during a “critical incident”. This was said to be a matter of concern that required further training and mentoring for Ms Wolters. Mr Bradley recommended that until he was satisfied that Ms Wolters was “capable of responding to and has an understanding of a critical incident” she not be left in charge of a shift or be the point of call for security.
[11] If Mr Bradley had checked his facts before writing this damning letter he would have ascertained that Ms Wolters had not neglected her duties or helped a staff member with a computer problem. This unfair and unfounded accusation aggravated her condition. Understandably, she involved her Union. She claimed workers’ compensation. Her claims were contested, and she engaged lawyers to pursue a claim for damages. Her psychological condition did not improve, and she saw psychiatrists, either for treatment or for them to assess her compensation claims.
[12] Ms Wolters became introverted and did not pursue the recreational activities, family life and friendships that had earlier been part of her life. An attempt to return to the workforce proved disastrous. WorkCover arranged for Ms Wolters to work in an aged care facility, and this experience added to her grief. She took up ginger farming on a small scale, more for therapy than for income, and gradually developed that small business. It provides her with a small and uncertain income. She has been diagnosed with a psychiatric illness.
Ms Wolters’ claims in these proceedings
[13] Ms Wolters claims damages for “negligence and/or breach of contract”. Her claim is based on the incident between her and Mr Bradley on 14 March 2008, not any breach of contract or negligence in the University’s response to that incident. Her pleading alleged, among other things, that Mr Bradley’s acts and conduct were:
(a)assaults; and/or
(b)the intentional infliction of emotional distress; and
(c)trespasses to her person.
However, these allegations were not established by the evidence, or pursued in final submissions. The balance of her pleaded case was that:
1.Mr Bradley’s acts and conduct were negligent, and the University is vicariously liable for them, since he was acting in the course of his employment;
2.The incident was occasioned by the negligence and/or breach of contract of the University in:
(a)failing to provide and maintain a safe workplace;
(b)exposing her to a risk of injury which could have been avoided by the exercise of reasonable care;
(c)failing to take any or any adequate action in relation to the aggressive and distressing acts and conduct of Mr Bradley within the workplace of which it knew or ought reasonably to have known when, in all the circumstances, a reasonable person in the University’s position would have done so.
[14] Ms Wolters alleges that the University knew of Heather Carney’s case, and the fact that she left her employment and received WorkCover benefits as a result of having suffered a major depressive disorder that was caused by the “aggressive and distressing behaviour” of Mr Bradley. She alleges that, as a result, it was aware prior to the incident on 14 March 2008 that Mr Bradley was aggressive, capable of arousing fear and distress in other employees, particularly female employees, and capable of causing injury to them.
[15] The essence of Ms Wolters’ case is that a reasonable person would have contemplated that there was a risk of injury if Mr Bradley engaged in similar conduct. Her case is that the University failed to investigate Ms Carney’s complaint and failed to take the steps that would have followed such an investigation. Mr Bradley would have been reprimanded and counselled. He would have understood that he was under threat of disciplinary action if he behaved that way again. Ms Wolters submits that if those things had happened then the incident probably would not have happened, and she would not have suffered the psychiatric injury and its consequences in respect of which she seeks compensation.
The issues
[16] The substantial issues in the proceedings are:
1.What happened on 14 March 2008?
2.The aftermath of the confrontation.
3. Whether the University owed Ms Wolters a duty to take reasonable care to avoid psychiatric injury.
4.Whether prior to the incident on 14 March 2008 the University was aware that Mr Bradley was aggressive, capable of arousing fear and distress in other employees, particularly female employees, and capable of causing injury to them.
5.Whether Mr Bradley was negligent in his conduct towards Ms Wolters on 14 March 2008 (being conduct for which the University is vicariously liable).
6.Whether the University breached its common law duty of care to Ms Wolters and breached its contract with her. In particular, did it do so by failing to investigate Ms Carney’s complaint and take appropriate action to reprimand and counsel Mr Bradley?
7.Would the incident with Ms Wolters have been avoided if such action had been taken?
8.Did Ms Wolters suffer the psychiatric injury and other consequences claimed by her by reason of the negligence and/or breach of contract?
9.If so, what is the measure of her damages?
What happened on 14 March 2008?
[17] Some of the events of 14 March 2008 are not in dispute: they are accurately recorded in the security log which was compiled from contemporaneous notes taken by staff. In other respects, there are different recollections between witnesses, or witnesses place different complexions on undisputed events. For example, views differ about whether it took Ms Wolters too long to complete an important telephone call at around 9.15 am. Similarly, there are differences about whether Mr Bradley rudely interjected over the radio at about that time. It is unnecessary to resolve all of these disputes.
[18] The critical issue is the nature of the confrontation between Mr Bradley and Ms Wolters that occurred in a breezeway or passageway in Building C at around 9.20 am that day. Again, there is scope for witnesses to have different opinions about whether someone who raised their voice was yelling or not. Still, there is a distinct difference in the recollection of witnesses about what was said and done by Mr Bradley and Ms Wolters during the confrontation.
[19] The resolution of disputed questions of fact turns largely upon a conflict between, on the one hand, the evidence of Ms Wolters and an eye witness called by her, Ms Gould, and, on the other hand, the evidence of Mr Bradley and his work colleague, Mr Stamford. I was impressed by Ms Gould’s recollection of events. She has recently retired from the University. She has no particular loyalty to either party. She did not know either Ms Wolters or Mr Bradley very well at the time of the incident.
[20] I generally accept the evidence of Ms Wolters concerning the events that day, notwithstanding the possibility that her memory of the event has been overlaid by retelling of it to work colleagues, union representatives, lawyers and doctors. I take account of the University’s submissions concerning the various statements that she has made over the years to such individuals. There are some minor and understandable variations between them. They tell essentially the same story and that story accords with Ms Gould’s evidence, which I accept.
[21] I do not find Mr Bradley’s recollection of events to be particularly reliable, especially where it conflicts with the evidence of Ms Gould. Mr Bradley could not recall certain matters, such as whether he was throwing his arms around. It may be that often he is not conscious of his behaviour when he waves his arms around. He said as much in his evidence. It may be that he simply cannot recall his actions during the confrontation because he was not thinking clearly and had lost control. I found other aspects of Mr Bradley’s evidence unreliable. He claimed to have arrived at work that day at around 8.45 am, some time after the power outage had occurred. If this is so, he should have been informed before arriving at work about this event, and was entitled to be upset that the procedure which required this had not been followed by Mr McGuire. He denies that he was upset about this.The security log records him as having been amongst the individuals who responded at 8.26 am to the power outage. In the end, I was not persuaded that Mr Bradley arrived at work when he claimed or that, if he did, he was not upset that his senior managers failed to tell him about the power outage.
[22] Mr Bradley was unconvincing in his evidence on certain critical points. Under cross-examination he gave evidence that he thought at the time that Ms Wolters had abandoned her duties. However, he did not complain about her conduct in that regard to her immediate superiors, or raise the matter in even the most general terms at the 2.30 pm de-briefing. His evidence that he did not raise the matter at the de-briefing because it “did not feature” and was not an incident that impacted upon the whole incident was unconvincing. If the matter was as serious as Mr Bradley apparently thought it was on the day then it was a proper subject to mention at the de-briefing. I have reached the view that Mr Bradley did not raise the matter at the de-briefing because by the time of the de-briefing he had calmed down.
[23] I do not find Mr Stamford’s evidence about the incident to be reliable. For example, according to Mr Stamford the incident occurred outside Building C. This is inconsistent with the other evidence, including evidence of what was seen on a CCTV recording. It is inconsistent with the University’s pleaded case that the incident happened when Mr Bradley was walking through the passageway outside Ms Gould’s office. If Mr Stamford can be mistaken about where the incident happened, I can have little confidence in his recollection of the tone of the conversation and the nature of Mr Bradley’s actions. Mr Stamford’s relationship with Mr Bradley, who was and remains his manager, inclines me to conclude that Mr Stamford has downplayed the extent to which Mr Bradley yelled at Ms Wolters and aggressively waved his arms at her. I find that Mr Stamford does not have a reliable recollection of the encounter.
[24] There were also inconsistencies between the evidence of Mr Bradley and Mr Stamford, for example, as to whether there was a conversation between them before Mr Bradley’s interaction with Ms Wolters.
[25] In summary, I found Ms Gould’s evidence about the contentious events at the time of the confrontation the most reliable.
[26] The confrontation occurred against the following background.
[27] The power outage commenced at 8.25 am. It was responded to by staff whose responsibilities included ascertaining the cause of the outage, activating generators if they did not automatically start and checking to see that people were not trapped in lifts. The staff who responded to the incident included Mr Russell Stamford, who was the Works Manager and Mr Richard McGuire, who was the Manager of Operations. Mr McGuire’s managerial responsibilities included security. Whilst a power outage is a serious event, requiring a rapid response and the restoration of power to enable the University to continue its activities, it is not listed amongst the examples of critical incidents in the University’s “Critical Incident Management Procedures and Guidelines”. The policy for dealing with power failures requires a security officer to:
1.Record all events in a written log.
2.Record time of the power loss.
3.Ensure that buggies and mobile phones remain charged.
4.Prioritise and attend to other calls for assistance.
5.Arrange portable lights and torches.
[28] On 14 March 2008 Ms Wolters commenced her shift at 7 am. Her immediate supervisor, Mr Ashley Muller, was away from work that day. Another security officer, Mr Arnold de Prinse, was working the same shift. He was working on a software program for a key safe that was being built, and so Ms Wolters took over the “in charge role” which meant that she had possession of the radio phone and the security mobile phone. Two other security officers were on parking duties. Ms Wolters was on her normal patrol when the power outage occurred. She responded appropriately by checking lifts and ensuring that generators had started. Later, she had to attend to fire indicator panels with Mr McGuire which enabled him to make announcements throughout buildings. After Ms Wolters and Mr McGuire had attended various fire indicator panels he instructed her to maintain visibility in the “spine of the campus”.
[29] At some stage Mr Bradley arrived at the building in which his office and the security office was located. He needed to obtain a key to access a panel to a generator in order to restart it. He could not access the safe in which the key was stored and he sent a radio message asking for the security code for the safe. Neither Mr de Prinse nor Ms Wolters provided it over the radio. As Mr de Prinse explained, providing such a code over an open radio system would have been a breach of protocol. Mr de Prinse recalls that Mr Bradley was loud and frustrated. He was threatening to break into the control panel. Mr de Prinse responded appropriately by going to the office and obtaining the key out of the safe. The problem was solved.
[30] Firecom is responsible for maintaining the fire fighting system at the University. It had occasion to communicate with the University that morning and Ms Wolters took the call. This occurred at about the same time as Ms Wolters was driving in a buggy past Ms Gould’s office. Ms Gould was waving her arms rapidly, so as to request Ms Wolters to come and assist her. The Firecom call came over the radio. A fire alarm had been activated in the sports stadium. Ms Wolters had to address the problem. She advised Firecom of the power outage and told it that she would have someone immediately go to the sports stadium and assess the matter. She picked up the security mobile phone to call this officer, Mr Nathan Gordon, just as she was entering Ms Gould’s office.
[31] At the same time Mr Bradley came over the radio phone and, according to Ms Wolters, “berated” her about the length of her communications. Others heard Mr Bradley’s interjection over the radio system. It was certainly louder than normal calls. Incidentally, Mr de Prinse who overhead Ms Wolters’ communications with Firecom that day, and who is a very experienced security officer, had no problem with the manner in which she conducted her communications with Firecom. Some might have found Mr Bradley’s interjection over the radio rude. I accept Mr de Prinse’s evidence that it was “an order rather than a request”, that Mr Bradley was “very forthright and direct” and that the volume of his communication was “very loud and clear”.
[32] Ms Wolters explained to Ms Gould that there was a power outage. Ms Gould did not ask for assistance with her computer, and Ms Wolters did not offer to provide it. She told Ms Gould to contact the IT department for assistance. While she was in Ms Gould’s room Ms Wolters continued to communicate with Mr Gordon about the fire alarm. She was seated opposite Ms Gould at a desk making notes, as required, about her communications with Firecom and Mr Gordon. She looked outside and saw Mr Bradley waving his arms erratically and yelling. She could hear his voice despite the double glazing. He was yelling, “Get the bloody hell out of there”. Ms Wolters ended her telephone conversation with Mr Gordon and walked immediately out of Ms Gould’s office into the breezeway to see what was wrong.
[33] As she walked into the breezeway, Mr Bradley was walking quickly towards her. He was screaming and yelling. He said things like, “What the hell do you think you’re doing in there? There is a power outage and you’re in there”. Ms Wolters sensed that Mr Bradley was rushing towards her and she felt frightened because she did not know if he was going to stop. He stopped about one metre away from her. She did not know what she had done wrong. He continued to yell at her and wave his arms around in an angry fashion. His face was red and flushed.
[34] Ms Wolters had never encountered anyone behaving like that towards her before. This was despite experience of having people yell at her at the University and lengthy experience as a security officer at Qantas where she was yelled at by “lots of cranky passengers”. She coped with those experiences because she understood that the passengers were upset. On this occasion she did not understand what she had done wrong and what was happening.
[35] Ms Wolters had inadvertently left her mobile phone on Ms Gould’s desk, and Ms Gould raced after her to return it to her. Ms Gould was in good position to observe Mr Bradley yelling at Ms Wolters and waving his arms in all directions. She described his actions as being “like when somebody’s crazy”. Ms Gould was observing the confrontation while she was backing away to go over to the Student Administration offices. She says that she was very concerned for Ms Wolters and felt that she should have stayed. She reflected, “There was nothing I could do, but I was also scared to turn my back.” She describes Mr Bradley’s behaviour as very aggressive and very confronting. Ms Wolters was clearly upset. Ms Gould can remember her saying, “But I’m just doing my work”. Ms Gould had not seen anything like the interaction that she witnessed between Mr Bradley and Ms Wolters.
[36] Contrary to Mr Stamford’s evidence that Ms Wolters “gave as good as she got”, I accept Ms Gould’s evidence that Ms Wolters was not arguing and her voice was quivering. Ms Wolters could hardly “get a word in” as she was trying to explain why she had been in Ms Gould’s office. She said words to the effect that she would help people who asked for her help. She may have yelled such words in her defence, but not in anger. Ms Wolters explained that she yelled these words:
“Because I was frightened and scared and I didn’t, I just didn’t know how to express myself.”
[37] I do not accept the suggestion that Mr Bradley simply spoke in an authoritative voice and said things like, “You should be out checking the University”. He did not have a discussion with Ms Wolters. He yelled at her and waved his arms rapidly whilst in close proximity to Ms Wolters. He did not simply gesture the direction in which he wanted her to go. His face was red and he appeared flustered. He was aggressive in the tone of his voice and in the manner of his behaviour. Ms Wolters was frightened.
[38] After aggressively confronting Ms Wolters and, in effect, accusing her of being derelict in her duties, he stormed off in the direction of another building where he understood a generator needed attention.
[39] Mr Bradley believed at the time he confronted Ms Wolters that she should not have been in Ms Gould’s room and was not performing her duties, as required during a power outage. His belief in this regard was not based upon reliable information. Had he bothered to check with Ms Wolters or Ms Gould he would have appreciated that Ms Wolters was called by Ms Gould into her office and at the time Ms Wolters was not to know whether there was some kind of emergency that required her assistance. Whilst in the room Ms Wolters attended to necessary communications and the recording of events. At some stage during the confrontation Mr Bradley may have misunderstood that Ms Wolters had gone into Ms Gould’s room in order to help her with her computer. But this was not Ms Wolters’ intention in going into the room, and she did not in fact help Ms Gould with her computer.
[40] Ms Wolters felt frightened by the manner in which Mr Bradley conducted himself. He walked quickly in her direction whilst yelling and throwing his arms around. However, Mr Bradley’s conduct did not constitute an assault.[1] Mr Bradley did not intend to create in Ms Wolters an apprehension of imminent harmful or offensive contact. At some point Ms Wolters may have been in doubt about whether he would stop walking quickly towards her, but Mr Bradley’s conduct did not give rise to a reasonable apprehension of physical contact. Still, Mr Bradley’s erratic arm movements and verbal abuse of Ms Wolters were frightening. They frightened Ms Wolters, at whom they were directed, and would have frightened someone in her circumstances.
[41] Those circumstances were materially different from being yelled at by a drunk or a stranger who was engaging in disorderly conduct. Ms Wolters was being verbally abused in public by a senior manager. His accusations were without justification. His hand gestures and the manner in which he conducted himself were aggressive. Ms Wolters was entitled to feel aggrieved and upset by Mr Bradley’s aggressive behaviour.
The aftermath of the confrontation
[42] After he departed the scene of the confrontation, Mr Bradley apparently calmed down. Power was restored to the University campus at 9.30 am. A de-briefing session about the power outage was convened at 2.30 pm. Mr Bradley led the discussion. Those in attendance recall that he was quite happy with the way people had responded, but brought up an issue about access to keys. Minutes taken by Mr Bradley’s personal assistant record what was discussed. Mr de Prinse, Mr Hasted and Ms Wolters gave evidence about what was said. The effect of their evidence is that no issue was raised about radio communications or about the location of security officers during the incident. There were no complaints or issues raised about the performance of Ms Wolters or anyone else. The de-briefing was not the occasion simply to talk about technical matters. As Mr Stamford acknowledged, it would have been appropriate for someone to say that staff should make sure that they remained outside of private offices during a power outage. Nothing of the kind was said.
[43] If Mr Bradley is to be believed, on 14 March 2008 he thought that Ms Wolters had abandoned her duties during the power outage. If he is to be believed, he felt so strongly about the matter that he wrote a memorandum to the Vice-Chancellor on Monday, 17 March 2008 headed “Unsatisfactory Performance” about her conduct. Yet he did not raise any issue in this regard, even in the most general terms and without referring to Ms Wolters in particular, at the de-briefing on the afternoon of 14 March 2008. When asked why he did not raise the matter at the de-briefing his evidence was that:
“It wasn’t an incident that impacted on the whole critical incident – so – we try and look at the whole incident and look at lessons learned and make changes.”
This response was unconvincing and I do not accept it. The duties that security officers perform and Mr Bradley’s concern about security officers being in offices when they should be elsewhere in the University were appropriate subjects to raise at the de-briefing.
[44] In any event, if Mr Bradley believed that Ms Wolters had been derelict in her duty and did not wish to embarrass her at the de-briefing or had some other reason not to raise the issue on that occasion, then it was appropriate for him to take the matter up directly with her at a separate meeting, or have one of her superiors, Mr McGuire or Mr Muller, ask her to explain her actions and apparent dereliction of duty, not to mention her insubordination in yelling at Mr Bradley. None of those things occurred.
[45] Instead of asking Mr McGuire or someone else to address what Mr Bradley believed to be a serious dereliction of duty, he simply mentioned to Mr McGuire that he “had words” with Ms Wolters after seeing her in a room. In response, Mr McGuire caught up with Mr de Prinse and Ms Wolters and asked after her well-being. He asked her if everything was okay and, according to Mr McGuire, she said that it was. It is telling that Mr McGuire did not ask Ms Wolters to explain why she was in the room. It seems that Mr Bradley did not convey any complaint to Mr McGuire about Ms Wolters’ performance, and Mr McGuire did not feel the need to ask what had happened. His interest was in Ms Wolters’ well-being.
[46] Although Mr McGuire may not have detected it, Ms Wolters was far from okay. She was upset and distraught. Another security officer, Mr Hasted, was due to start work at 3 pm, but came to the University at about 1 pm because Ms Wolters had phoned him and said she had been abused by Mr Bradley. She said that she would try to complete the shift, but Mr Hasted came in early to be of assistance to her. He attended the de-briefing along with others, including Mr de Prinse. By that time Ms Wolters had calmed down but, according to Mr Hasted, was “very withdrawn in herself”. She was not “her normal bubbly self”. I accept Ms Wolters’ evidence that she reluctantly went to the de-briefing. She did not feel safe and was afraid that Mr Bradley would yell at her again. This did not happen. Instead, he commended everyone on their effort and the only issue that he wanted addressed was the keys.
[47] Saturday, 15 March 2008 was Ms Wolters’ last day at work. She worked the shift that night after asking to be relieved of it. No replacement could be found at short notice and she undertook the Saturday night shift with Mr Hasted. He recalls that she was very quiet.
[48] Mr de Prinse has worked as a security officer at the University for about 14 years. Before that he was a police officer in South Australia. Like the other security officers who worked with Ms Wolters or supervised her, he was complimentary about her work performance. The formal evaluations of her performance were good.
[49] On Monday, 17 March 2008 Ms Wolters saw her general practitioner. She did not feel safe returning to work until the matter was resolved, and on the Monday she went to the University’s Human Resources section to seek assistance in resolving the matter. She was accompanied by Mr de Prinse. Ms Wirgau, who worked in that section, told Ms Wolters that she had the option of making a complaint under a bullying and harassment policy and could give evidence which would be reviewed prior to a decision being made. She would still have to be at the University and perform her duties. Ms Wolters understood that she had to provide the University with the evidence and that the University would not investigate the matter. Mr de Prinse gained the same impression. His recollection of the meeting is that the University did not want to take the complaint and “seemed to put the onus back on to Gjenie”. He did not think that Ms Wolters was in any condition to deal with such an exercise or other legal matters. He was not happy that the University was taking no action.
[50] Ms Wolters declined to make a formal complaint. She felt that she could not return to the University until she felt safe enough. She did not feel safe about the prospect of encountering Mr Bradley.
[51] The fact that Ms Wolters was in no fit condition to work and had taken a grievance to the Human Resources section of the University was no secret on Monday, 17 March 2008. The administrative section in which Mr Bradley, his managers and security officers work is a relatively small organisation and by 17 March 2008 Mr Bradley was in a position to know that Ms Wolters had taken her grievance to the Human Resources section.
[52] An appropriate course of action for Mr Bradley that day would have been to ascertain the true facts, if necessary by speaking to individuals such as Ms Gould, and apologise for his behaviour towards Ms Wolters the previous Friday. Instead he failed to check his facts and sent a memorandum to the Vice-Chancellor accusing Ms Wolters of unsatisfactory performance. This written complaint about Ms Wolters’ performance arrived “out of the blue”. Rather than escalate the matter and involve the Vice-Chancellor, Mr Bradley should have resolved the matter by other means. Although Mr Bradley had a close working relationship with the Vice-Chancellor and the Vice-Chancellor encouraged Mr Bradley to report to him about important matters, including matters that might become the subject of media attention, Ms Wolters’ performance during the power outage was not of that character. The Vice-Chancellor had never received a memorandum from Mr Bradley before about the need to give additional training to a security officer.
[53] On Friday, 14 March 2008 after the incident with Ms Wolters, Mr Bradley went to see the Vice-Chancellor, but made no mention of Ms Wolters. Yet, by Monday, 17 March the matter apparently justified a written memorandum to the Vice-Chancellor. The memorandum was written without first according Ms Wolters any opportunity to respond to the serious allegations contained in it about her alleged unsatisfactory performance.
[54] I conclude that Mr Bradley’s memorandum to the Vice-Chancellor was an exercise in self-protection. It was unfair and unfounded. It was apt to aggravate the situation.
[55] Ms Wolters’ psychological condition did not improve. Understandably, she involved her Union when a claim for workers’ compensation became contentious.
[56] Soon after the incident Mr Muller was informed by Mr de Prinse that Mr Bradley had confronted Ms Wolters and had been very aggressive. Mr Muller spoke to Ms Wolters and she was upset. He tried to assure her that she had done nothing wrong. Mr Muller raised the matter with his manager, Mr McGuire, because he was concerned about her well-being.
[57] The University took no steps to preserve relevant CCTV footage. The junior security officers who reviewed it were not authorised to take copies of it. To do so would have been a breach of policy. Senior managers who were aware of the incident did not take steps to preserve the CCTV footage. Mr Muller viewed it. It did not depict the entire incident. However, it accorded with Ms Wolters and Ms Gould’s evidence.
[58] The CCTV footage depicted Mr Bradley walking fairly fast from the entry into the breezeway. The image was taken from an angle that did not record Mr Bradley’s right arm, but Mr Muller could see an image of Mr Bradley waving his left arm around. Mr Muller reported the existence of the CCTV footage to his superior, Mr McGuire. No direction was given to preserve the CCTV footage when Mr Muller spoke to Mr McGuire about it on 17 or 18 March 2008.
[59] The failure of the University to preserve the CCTV recording became a subject of contention. The matter became litigious. Ms Wolters developed a serious psychological injury. Her life changed dramatically. She had been a fun-loving person who took her two daughters to the beach. She became completely introverted and has never taken her daughters to the beach since the incident. I accept the evidence given by her mother about the dramatic change in her personality and lifestyle. Before the incident Ms Wolters was an extrovert. Now she has very limited interaction with others. Old friends are not invited to visit her. She has no confidence in herself. She remains depressed and continues to receive treatment from her psychiatrist, Dr Mungomery. After an initial improvement her condition has plateaued over the last 12 months.
[60] An issue to be addressed later in this judgment is whether Ms Wolters’ psychiatric illness and the financial and personal consequences of suffering it were caused by the University’s alleged negligence or breach of contract. By way of preview to this causation issue, the psychiatric illness which she currently suffers originates with the incident. An issue exists as to whether that psychiatric illness would have developed or developed to the same extent and for the duration that it has if the University’s response to the incident had been different. Ms Wolters’ current psychiatric condition and the financial loss that she has suffered and continues to suffer as a result of it originate with the incident, but also have been caused by a host of subsequent events. These include the University’s failure to adequately respond to her grievance and Mr Bradley’s conduct in aggravating matters by sending his 17 March 2008 memorandum to the Vice-Chancellor. These issues will be further addressed in connection with issues of causation and damages.
Did the University owe Ms Wolters a duty to take reasonable care to avoid psychiatric injury?
[61] Ms Wolters relies upon implied terms of her contract of employment and duties imposed by the general law upon an employer. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.[2]
[62] The general law, like the law of contract, does not impose two duties on the employer: one to avoid physical injury and one to avoid psychiatric injury. The ruling principle is that an employer is bound to take reasonable care for the safety of its employees.[3] The employer’s obligation is to take reasonable care; it is not an obligation to safeguard an employee from all perils. The duty to take reasonable care to avoid exposing employees to unnecessary risks of injury may require an employer to not expose employees to an unreasonable risk of psychiatric harm.
[63] In Tame v New South Wales,[4] a majority of the High Court rejected “normal fortitude” as a test of foreseeability, whilst accepting the relevance of the idea. In Koehler v Cerebos (Australia) Ltd,[5] McHugh, Gummow, Hayne and Heydon JJ affirmed that “normal fortitude” was not a pre-condition to liability for negligently inflicting psychiatric injury, and that the concept was not to be re-introduced into the field of liability as between employer and employee. Their Honours stated:
“The central inquiry remains whether, in all the circumstances, the risk of a plaintiff ... sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful”.[6]
[64] Issues of duty and breach often overlap. Questions of breach of duty require examination of the foreseeability of the risk of injury and the reasonable response to that risk.[7] The joint judgment in Koehler emphasised that to begin an inquiry by focusing only upon questions of breach of duty invites error, since an assumption may be made about the content of the duty of care which fails to take account of fundamental aspects of the relationship between the parties. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable, and that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.[8]
[65] An employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job.[9]
[66] In this case, the University was entitled to assume that Ms Wolters considered that she was able to perform the duties of a security officer. These duties would require her on occasions to confront stressful and sometimes dangerous situations. She had worked as a security officer before gaining employment at the University. She did not show signs that she was not able to do the job. On the contrary, she met the job’s requirements and performed well in tests.
[67] A reasonable person in the position of the University would have foreseen that her work exposed her to the risk of being distressed by traumatic events. In addition, like most employees working in an organisation, she was exposed to the risk of stress at work, and distressing situations that arise from conflict between employees, including distressing situations triggered by conflict between her and someone above her in the University hierarchy. The risk of exposure to stress and potential sources of conflict in the workplace should not be equated with a risk of psychiatric injury, as distinct from psychological disturbance. The liability of an employer is not engaged unless there is a reasonably foreseeable risk of the plaintiff sustaining a recognisable psychiatric illness. In practical terms, a claim in negligence would require that the University knew or ought to have known of conduct which was likely to give rise to a risk of psychiatric injury to Ms Wolters, in circumstances where steps directed to avoiding that risk should reasonably have been taken.
[68] It is possible to imagine a variety of conduct which was likely to give rise to a risk of psychiatric injury to Ms Wolters. These include exposure to traumatic incidents, including acts of violence. Such traumatic episodes may have arisen from the conduct of strangers or from encounters with fellow employees. In that regard, it is possible to conclude at a level of generality that the University owed Ms Wolters a duty to take reasonable care to avoid psychiatric injury since as a security officer she was exposed to the risk of encountering traumatic incidents which would cause not only distress but, depending upon their severity and the steps taken to ameliorate their effect, psychiatric injury.
[69] Expressed in general terms, given the nature of her duties and the range of misbehaviour which a security officer might encounter from strangers, students and university employees, it was reasonably foreseeable that Ms Wolters would experience great distress as a result of encountering such misbehaviour and, depending upon the nature of the misbehaviour, by whom it was perpetrated and the circumstances in which it was encountered, that Ms Wolters might sustain a recognisable psychiatric illness. Depending upon the steps taken to avoid such incidents or to minimise their psychological impact, it is reasonably foreseeable that a security officer might sustain a recognisable psychiatric illness as a result of being exposed to a traumatic incident. The risk of sustaining such an illness was not far-fetched or fanciful.
[70] It is possible to frame a duty to take reasonable care to avoid psychiatric injury at a level of generality without reference to the precise nature of the traumatic incident. A duty of care cast in such general terms requires consideration of its content in more specific situations. Alternatively, reference to the content of the duty of care in particular situations may inform the related issue of breach. The probability of psychiatric injury would be much higher in a case in which a security officer has been exposed to a murder scene or involved in a hostage crisis than one in which she or he encounters a drunken student on the campus. Exposure to certain traumatic incidents would not be expected to give rise to a recognisable psychiatric illness. Less traumatic incidents, such as heated verbal exchanges between employees, would not ordinarily expose an employee, particularly a security officer who is accomplished in their work and shows no warning signs of possible psychiatric vulnerability, to the risk of a recognisable psychiatric illness. Sustaining a recognisable psychiatric illness in such situations would not be reasonably foreseeable, particularly for someone who is trained to deal with stressful events and presents as someone of “normal fortitude”.
[71] As Hodgson JA observed in Sheather v County Energy,[10] cases of negligence generally raise three broad issues, the second of which tends to be bracketed with the first or third:
1.Existence of a duty of care;
2.Content of the duty; and
3.Breach of the duty.
Often issues 2 and 3 are bracketed together, as making up the totality of the question of whether a duty of care is breached. Hodgson JA remarked that in some discussions issue 2 appears to be bracketed with issue 1 rather than issue 3, but this does not appear to make any material difference to the reasoning or the result. His Honour’s insights serve to emphasise the importance of determining the content of the duty of care in a particular context. If a duty of care, such as the ordinary duty of an employer to an employee to exercise reasonable care not to expose the employee to avoidable risks of injury, is formulated in general terms, then the content of that duty falls to be considered in conjunction with the issue of breach. That was his Honour’s approach both in Sheather and in Gittani Stone Pty Ltd v Pavkovic.[11]
[72] Whether the content of the duty of care is considered in conjunction with the issue of the existence of a duty of care, or in conjunction with the issue of breach, in a case such as the present the central issue remains whether the employer knew or ought to have known of conduct which was likely to give rise to a risk of psychiatric injury to the plaintiff. Liability in negligence will depend upon whether steps directed to the avoidance or reduction of that risk should reasonably have been taken.
[73] Depending upon the circumstances, it is possible to reach the conclusion that in the specific circumstances of the particular employee, the employer did not have a duty to take reasonable care to avoid psychiatric injury. Such a conclusion might be reached in circumstances where the employer had no reason to suspect that the employee was at risk of psychiatric injury as a result of the relevant conduct. For example, an employer might not reasonably foresee that an employee would suffer a recognisable psychiatric injury, as distinct from psychological disturbance such as stress, as a result of being yelled at by a fellow employee. A more serious form of conduct, such as sustained verbal abuse accompanied by an assault, may make the sustaining of psychiatric injury reasonably foreseeable in the sense that the risk is not far-fetched or fanciful.
[74] As to the related inquiry into breach of duty, the possibility that an employee will suffer a psychiatric injury as a result of workplace stress, bullying or an incident in which the employee is verbally abused by a superior is not sufficient to establish breach. The possibility or even predictability of harm, based upon advances in medical knowledge about the variety of circumstances in which emotional disturbance can trigger, or even develop into, recognisable psychiatric injury do not necessarily result in a co-extensive expansion of legal obligations.[12] As Spigelman CJ has observed:
“It may well be the case that it is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury. That does not, however, lead to the conclusion that the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough.”[13]
His Honour went on to observe that an employer can be liable for negligence because of a failure to protect an employee against bullying and harassment. However, the existence of such conduct does not determine the issue of breach of duty. As his Honour stated, one of the elements required to be assessed is the degree of probability that the risk of psychiatric injury may occur, even when the reasonable foreseeability test of risk that is not far-fetched and fanciful has been satisfied.
[75] In this case, the issue of whether, prior to the incident on 14 March 2008, the University was aware that Mr Bradley was aggressive, capable of arousing fear and distress in female employees, and capable of causing injury to them, is relevant both to the content of its duty of care to Ms Wolters and to the question of whether it breached any duty to take reasonable care to avoid psychiatric injury. It is convenient to deal with its alleged knowledge of Mr Bradley’s capacity to cause distress and psychiatric injury as a separate topic.
Was the University aware prior to 14 March 2008 that Mr Bradley was aggressive, capable of arousing fear and distress in female employees and capable of causing injury to them?
[76] Ms Heather Carney worked for the University for 11 years, commencing in 1996. She worked in the administration of a growing organisation. She worked in association with Mr Bradley, initially as his assistant on the administration of capital works projects and numerous other services. During those 11 years her role changed and by 2007 she was the Business Manager of Capital Programs and Operations (“CPO”). She also served on the University Council. Ms Carney had to cope with heavy workload demands. However, her dealings with Mr Bradley were also a major source of stress in her employment. He was under a lot of pressure. Ms Carney would be the one who would advise him of problems and often it was a case of “shoot the messenger”.
[77] Another problem which developed in the relationship was that as the University grew as an organisation and adopted appropriate procedures and policies for the letting of contracts and other matters, it had to be compliant. Ms Carney had responsibility for ensuring compliance and this brought her into conflict with Mr Bradley who would ridicule her for being “a purist”. Mr Bradley’s focus was on getting things done, even if this meant not following proper procedures. His dismissive approach to compliance issues was made clear to Ms Carney and others who he would belittle with aggressive comments such as, “What are you carrying on about?”.
[78] Ms Carney raised her concerns informally with Human Resources at different times and was advised that unless she put a complaint in writing, the matters that she raised would not be considered a complaint. She was fearful of doing so. As a result of matters, including unreasonable workload expectations, unreasonable work requests and harassment, Ms Carney sought medical assistance and the University provided counselling assistance for a few months in 2004. She continued with this counselling at her own cost for a few months in early 2006.
[79] In her evidence Ms Carney explained Mr Bradley’s manner of working. He was prone to make loud outbursts. He would become stressed and “have a bit of a blow up”. These became very frequent and the workplace became a fearful environment. Staff members were fearful and Ms Carney ended up as the buffer between the staff and Mr Bradley.
[80] By late 2007 Ms Carney was tired of performing that function. She was tired of being yelled at. She was tired of having staff scared to speak up. Her uncontested evidence was that:
“Mark Bradley yelled at people no matter whether it was staff, whether it was architects, whether it was construction people, academics even. He yelled at people. And it became so frequent it was very hard to handle”.
[81] At different times Ms Carney had taken her concerns to the head of Human Resources or the Registrar at the time. She would tell them that Mr Bradley was having a bad time and ask them to offer him some assistance. She described Mr Bradley as “a heart attack waiting to happen.” She was concerned about his well-being. At times he would become illogical. At that point she would telephone one of his mates at the University and ask them to contact Mr Bradley and have a cup of coffee with him. She would let them know when Mr Bradley was getting erratic.
[82] If Mr Bradley could be settled and calmed, then things would operate normally. However, if he was not settled and calm he was “a yeller”. He would vent his anger at staff members. He did not only yell at Ms Carney. As she explained, his yelling was “a regular thing”.
[83] The events of 13 December 2007 proved to be the final straw for Ms Carney.
[84] The University had agreed for a contractor to construct a new building. A letter of intent had been signed but there was no contract to govern payment for its work. The contract was still being negotiated by 13 December 2007. The contractor was already performing work and directed an invoice for more than $600,000 to the University. The invoice was held by Mr Stamford.
[85] On 13 December 2007 Mr Bradley learned from his personal assistant that the contractor was pressing for payment and, understandably, he became concerned about the consequences of not paying the invoice. If he had checked his facts, Mr Bradley would have ascertained that the invoice was with Mr Stamford. One reason it had not been paid is that no purchase order had been raised in respect of the work and this, in turn, was because there was no contract.
[86] Mr Bradley followed Ms Carney to her work area, loudly asking why the invoice had not been paid. He was very angry. He was very red in the face. He stood in front of the desk of the business officer, Ms Fuller, and accused the business unit of not supporting other branches of the CPO. Ms Carney attempted to explain the situation, but Mr Bradley did not listen. At the same time as making repeated pointing gestures, he stated to Ms Carney:
“You have to make a choice of whether you’re coming with CPO or not”.
Ms Carney took this as a threat to her position. She felt sickened, threatened, humiliated and powerless.
[87] Mr Bradley walked off. After he left Ms Fuller said to Ms Carney, “That was unfair, we’ve been asking for the paperwork. When can we expect the apology?”.
[88] Ms Carney’s evidence about this episode is supported by the evidence of Ms Fuller. It was not really contested by Mr Bradley. He acknowledged that he was concerned and upset. His evidence was that “[his] voice would have been raised, as [he did]”. He said that he usually speaks in a loud voice. He could not recollect gesturing with his hands on this occasion and explained that he often gestures with his hands. The following passage of his evidence-in-chief is revealing:
“Did Heather explain to you on that day why the invoice hadn’t been processed?-- No.
Did you let her explain why the invoice hadn’t been processed?-- I recall I was very upset and I moved away pretty quickly.
Why did you move away pretty quickly?-- Well, I didn’t want to prolong the engagement.”
Of course, if Mr Bradley had remained to hear an explanation from Ms Carney and Ms Fuller, he would have ascertained that they did not have the invoice and were not responsible for the problems that had arisen in relation to the non-payment of it.
[89] In summary, the incident with Ms Carney on 13 December 2007 involved:
(a)verbal abuse by Mr Bradley of Ms Carney;
(b)yelling and waving of his arms;
(c)a failure and refusal to listen to what Ms Carney might say in response to the unfounded allegations that had been levelled at her; and
(d)a threat to her position.
[90] After this incident Ms Carney was extremely upset, physically shaken and felt ill. She told a senior Human Resources officer that she was leaving the campus and that she was in no position to be able to face Mr Bradley to request approval to do so. She also contacted the payroll office about details of leave due to her should she resign. She consulted her doctor and he recommended that she make an application to WorkCover. She did so on 19 December 2007 and complained about Mr Bradley’s abusive conduct on 13 December 2007, including the threat to her position. The University submitted an employer’s report the same day, which accepted that the incident had happened and that the University was satisfied that Ms Carney suffered a work-related injury as a result of the event. The employer’s report was signed by Mr Mark Nugent, the Director of Human Resources.
[91] WorkCover followed up the application and gave further details to the University of the factors that had been nominated by Ms Carney as the cause of her depression. Her complaint related to the incident on 13 December 2007 and stated that Mr Bradley had been abusive, had yelled at Ms Carney and Ms Fuller and threatened Ms Carney’s position. It reported that Mr Bradley was red and that his hands were moving. The University was given an opportunity to respond with information that either confirmed or refuted these allegations. It chose not to refute them. On 15 January 2008 WorkCover was advised by the University that it had supplied all the available information in its earlier Employer Report. On the same day WorkCover wrote to the University and advised that it had accepted Ms Carney’s “claim for depression sustained on 13 December 2007” and would pay her benefits.
[92] On 19 December 2007 Ms Carney lodged a formal complaint of workplace harassment and bullying against Mr Bradley with the University’s then Deputy Vice-Chancellor. As Ms Carney explained in her letter of 19 December 2007, and in her evidence, it was a difficult document for her to write for a number of reasons. It complained of a “sustained pattern of bullying, unreasonable work requests and non-recognition of [her] priorities in the workplace”. The incident on 13 December was described by Ms Carney as “the final straw” for her.
[93] The University had policies governing procedures for such harassment complaints. On 20 December 2007 the then Deputy Vice-Chancellor acknowledged receipt of Ms Carney’s formal complaint of workplace harassment and advised that the matter had been referred to the Director of Human Resources for appropriate action. Due to the University’s close down and staff absences, action in relation to the matter was not to commence until mid-January 2008.
[94] Soon after his return from work in late January 2008, Mr Nugent contacted Ms Carney and arranged to meet her at a coffee shop. The purpose of the meeting was to ascertain what Ms Carney wanted to happen in relation to her future employment. Mr Nugent was concerned about her well-being and asked her whether she thought she would be able to come back to the workplace. Ms Carney was still very shaken and upset, and replied that she could not see that she could go back. Discussion turned to the negotiation of a separation package, which included a redundancy component. In the next few days Ms Carney came to an agreement with the University and this was documented on 6 February 2008. At no stage did she tell Mr Nugent or anyone else that she wanted to withdraw her complaint against Mr Bradley. She was not asked to withdraw her complaint. She was not contacted by anyone at the University about participating in an investigation of her complaint.
[95] Ms Carney’s formal complaint was not investigated in accordance with the University’s policies, or at all. If it had been there would be records of that investigation in accordance with the policy, and there are none. Mr Nugent accepted that Ms Carney’s complaint was not investigated under any formal procedure. The complaint was never resolved. Instead, Ms Carney’s employment with the University was resolved in the form of a separation agreement.
[96] The University’s Vice-Chancellor at the time, Professor Thomas, spoke to Mr Bradley informally about the matter. However, that did not constitute an investigation. In his evidence Professor Thomas accepted that he did not investigate any aspect of the complaint other than to speak with Mr Bradley about the shouting incident. He accepted that he did not investigate the complaint because Ms Carney left the University. He accepted that there was no indication that Ms Carney withdrew her complaint, and that the reason that he did not investigate Mr Bradley’s behaviour was because, in Professor Thomas’ view, Mr Bradley had never been a bully before. Professor Thomas explained that there was no formal investigation and he had never seen anything approximating bullying from Mr Bradley in all the years he knew him, during which they had an extraordinarily close relationship professionally.
[97] In short, the sworn evidence of University witnesses, including its former Vice-Chancellor, is that Ms Carney’s complaint was not investigated. Despite this the University’s amended defence, which was filed by leave on the first day of the trial alleged that it took “reasonable and appropriate steps to investigate” Ms Carney’s allegations and, having done so, “found them to be unfounded so that no further action was required to be taken.” Its particulars of this allegation asserted that the allegations were investigated when Ms Carney spoke to Mr Nugent and when Professor Thomas raised the allegations with Mr Bradley. Subparagraph E of the particulars asserted that:
“The allegation was found to be without merit, however Professor Thomas counselled Bradley to ensure he took care when speaking with subordinates as his approach may be misinterpreted.”
It was untenable to plead that the University took reasonable and appropriate steps to investigate Ms Carney’s allegations. It did not investigate them.
[98] The sworn evidence of Mr Nugent and Professor Thomas is that Ms Carney’s allegations were not investigated, even informally by speaking to witnesses to the incident on 13 December 2007, other than Professor Thomas’ conversation with Mr Bradley. Therefore it is remarkable that in July 2008 Mr Nugent drafted a letter for Professor Thomas to send to Mr Bradley about Ms Carney’s allegations. According to a memorandum written on 1 July 2008 by Mr Nugent to the Vice-Chancellor, Mr Nugent understood that Professor Thomas had discussed the allegations with Mr Bradley and was satisfied that there was no substance to them. The letter that he drafted and which was signed by Professor Thomas on 15 July 2008 advised Mr Bradley:
“I am writing to advise that on consideration of your response to the above allegations, I am satisfied that there was no substance to the allegations.”
The delay in writing such a letter and its contents were not explained. The contents of the letter cannot be reconciled with the sworn evidence before me. Professor Thomas could not have been satisfied that there was no substance to the allegations because neither he nor anyone else at the University investigated them. Professor Thomas may have believed, on the basis of his high opinion of Mr Bradley and in the absence of any investigation, that Mr Bradley was not a bully. However, that did not constitute the results of an investigation into Ms Carney’s allegations, particularly her allegations concerning the incident on 13 December 2007.
[99] Even in the absence of a proper investigation, the University knew that there was substance in Ms Carney’s allegations. The University was aware that Ms Carney made an application to WorkCover in relation to the 13 December 2007 incident, and it knew the details of those allegations of abuse and threatening behaviour. The University did not refute the allegations when given an opportunity to do so. Any inquiry of Ms Fuller, who witnessed the incident, would have corroborated Ms Carney’s account of it. Mr Bradley did not dispute that such an incident took place.
[100] The University received advice from WorkCover in mid-January 2008 that it had accepted her claim for depression sustained on 13 December 2007.
[101] The incident of 13 December 2007 involved conduct that was far more serious than raised voices and a misunderstanding between employees. Of course, workplaces involve people raising their voices and criticising the work performance of other employees. People like Mr Bradley are able to achieve results under difficult circumstances because they adopt a “very direct, hands-on” approach. The incident of 13 December 2007 involved much more than this. Mr Bradley did not just raise his voice. He yelled and accused Ms Carney of serious wrongdoing. His ultimatum to her whereby she had to decide whether she was working with the CPO or not was a thinly-veiled threat to her employment. She was given no opportunity to explain herself. Mr Bradley was not interested in hearing her explanation. So he left a person wrongly accused of dereliction of duty with a strong sense of being abused, and with no opportunity to respond to the accusations that had been levelled against her.
[102] These aspects of the incident on 13 December 2007 have disturbing similarities to Mr Bradley’s behaviour towards Ms Wolters on 14 March 2008. There are also differences between the two incidents. Mr Bradley’s abusive behaviour towards Ms Carney on 13 December 2007 was against a background of tension in their relationship. I have no sound reason to not accept Ms Carney’s account of that relationship and the stresses that it placed upon her. Her evidence was not really contested. That the relationship was so bad was not obvious to Professor Thomas. Presumably Mr Bradley did not bully Ms Carney or other employees when Professor Thomas was present. Perhaps Professor Thomas’ close working relationship with Mr Bradley and his admiration for Mr Bradley’s achievements gave Professor Thomas a blind spot in respect of Mr Bradley’s behaviour towards Ms Carney and others. I should add that Professor Thomas gave evidence of other cases in which he and the University took strong action against bullying and harassment in the workplace. The adequacy of the University’s response to Ms Carney’s complaint will be considered in connection with the issue of breach. The present issue is what the University knew about Mr Bradley’s capacity for arousing fear and distress in female employees and his capacity to cause injury to them.
[103] By February 2008, and well prior to Mr Bradley’s confrontation with Ms Wolters on 14 March 2008, the University knew that Mr Bradley had verbally abused Ms Carney, behaved in a threatening manner and threatened her job. It knew that the incident on 13 December 2007 caused Ms Carney a workplace injury. It acknowledged this on 15 January 2008 in its communications with WorkCover. By February 2008 the University knew that the injury was a serious one and Ms Carney was suffering debilitating depression. Her psychiatric injury was the result of Mr Bradley’s aggressive behaviour on 13 December 2007. That behaviour had caused fear and distress to its victim and had left her with a psychiatric injury. Mr Bradley was capable of causing the same injury to another female employee, and the University was aware of this prior to 14 March 2008.
Was Mr Bradley negligent in his conduct toward Ms Wolters on 14 March 2008?
[104] Ms Wolters’ pleading includes the allegation that the acts and conduct of Mr Bradley pleaded in subparagraphs 4(a) to (v) of the statement of claim were negligent and unlawful and that the University is vicariously liable “for the intentional and/or negligent acts and conduct of Mark Bradley”. The acts alleged in subparagraphs 4(a) to (u) of the statement of claim broadly accord with the events that I have found. However, subparagraph 4(v) alleges that as a result of those acts, and particularly his conduct in waving his arms “around in a threatening manner in proximity to the plaintiff’s person”, Ms Wolters apprehended that Mr Bradley “may physically strike her”. Mr Bradley may have been waving his arms around, but the evidence does not establish that Ms Wolters apprehended that he would physically strike her.
[105] That part of Ms Wolters’ case which asserted that Mr Bradley’s conduct was negligent and that the University is vicariously liable for his negligence was not developed in her submissions. They focused upon the University’s own alleged negligence in failing to take adequate steps to ensure that Mr Bradley did not engage in similar conduct to the conduct he engaged in towards Ms Carney on 13 December 2007.
[106] The University’s oral submissions addressed Ms Wolters’ pleaded case of vicarious liability for Mr Bradley’s alleged negligence by disputing that Mr Bradley was negligent. Ms Wolters’ submissions did not engage with the University’s submissions, which I generally accept. A claim in negligence against Mr Bradley would require consideration of the duty of care, if any, which he owed to a fellow employee. The existence and content of such a duty of care was not pleaded. It would require consideration of whether, among other things, it was reasonably foreseeable that a female security officer in Ms Wolters’ position would suffer a psychiatric injury if confronted in the manner that Mr Bradley confronted her on the day. These issues were not explored in Ms Wolters’ submissions.
[107] The essence of the University’s submissions in relation to Mr Bradley’s alleged negligence is that Mr Bradley was under a misapprehension about what Ms Wolters was doing in Ms Gould’s room, and that it was not negligent for him to have acted in the way that he did at a time of stress when he had other matters to attend to. The fact that, in hindsight, he should have acted differently and should not have confronted Ms Wolters does not mean that he was negligent in acting as he did. He believed that Ms Wolters had been derelict in her duty and acted accordingly. He was not aware of his hand movements and the distress which his words and actions might cause.
[108] I accept the University’s submission that the question of whether Mr Bradley was negligent in behaving in a way that others might perceive as physically threatening must be viewed in the circumstances, including the circumstances as he understood them to be, namely that Ms Wolters had been derelict in her duties and was in Ms Gould’s room when she should have been elsewhere. The circumstances may have led him to believe that she was in Ms Gould’s room helping Ms Gould with a computer. His belief was mistaken and a more measured approach by him would have ascertained the true facts. Instead of taking time to make inquiries or simply telling Ms Wolters that he would speak to her later, he chose to make clear his displeasure at what he apprehended was a dereliction of duty and to order Ms Wolters to get on with her work.
[109] Ms Wolters was a security officer. Even with the experience of what had happened to Ms Carney, Mr Bradley might not have reasonably foreseen that his words and actions towards Ms Wolters would cause her more than psychological distress.
[110] If Mr Bradley owed Ms Carney a duty of care to take reasonable steps to avoid causing her a psychiatric injury (a matter neither pleaded nor proven by Ms Wolters) then I am not persuaded that he breached such a duty. The standard of behaviour to be expected of him and whether he departed from that standard to such an extent as to have been negligent must be determined by reference to a reasonable person in his circumstances. A reasonable person who erroneously believed that Ms Wolters had been derelict in her duties, and who believed that she should be elsewhere, might have yelled at Ms Wolters as a means of reprimanding her on the spot. Mr Bradley was under stress, some of it self-imposed and some of it due to his poor physical condition. He suffered high blood pressure and was unfit. He was concerned to activate generators within a limited period of time. A failure to restore power might have serious consequences for the University’s operations. In all the circumstances, I am not persuaded that he owed a duty of care to Ms Wolters to take reasonable care to avoid causing her psychiatric injury or, if he did, that he breached such a duty.
Did the University breach its duty of care to Ms Wolters and breach its contract with her by failing to investigate Ms Carney’s complaint and take appropriate action to reprimand and counsel Mr Bradley?
[111] An inquiry into breach must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event, it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.[14] In Nationwide News Pty Ltd v Naidu, Spigelman CJ observed:
“The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.
Koehler affirms the line of High Court authority, including, Tame and Gifford, which focuses attention on the purpose for which the inquiry as to foreseeability is undertaken, namely, to determine what reasonableness requires by way of response and, therefore, whether legal responsibility for the conduct should be attributed to the defendant for the injury to the plaintiff.”[15]
[112] As noted, Ms Wolters’ case on breach focuses upon the failure of the University to take any or any adequate action in relation to the conduct of Mr Bradley within the workplace, particularly in the light of what it knew after the Heather Carney incident in relation to his aggressive conduct and its capacity to cause distress and psychiatric injury to female employees. Ms Wolters submits that a reasonable person would have contemplated that there was a risk of injury if Mr Bradley engaged in similar conduct. The University had processes for investigating complaints of the kind made by Ms Carney. Ms Wolters submits that Mr Bradley’s conduct towards Ms Carney ought to have been investigated. It was not. Without an investigation the University was not in an informed position to take appropriate steps to prevent or minimise future injury to other staff. There was no attempt to interview Ms Fuller about the incident on 13 December 2007. Ms Carney had made a formal complaint which was not withdrawn. There was no investigation in accordance with the University’s procedures or even an informal investigation. So much was acknowledged by Mr Nugent and Professor Thomas.
[113] Because the conduct of Mr Bradley on 13 December 2007 and his propensity to act in a similar aggressive way were not investigated, he did not receive the type of warning that would have followed such an investigation, and consequently was not left to understand that he was under threat of disciplinary action if he behaved the same way again. Ms Wolters submits that Mr Bradley appears to be a person who has difficulty dealing with his anger and stress, and that it was open to the University to provide him with counselling and/or anger management training.
[114] The University submits that Professor Thomas counselled Mr Bradley in an informal way, and that there is no evidence which suggests that more should have been done. It also submits that the onus is on Ms Wolters to prove that further counselling would have been effective and probably prevented injury to her.
[115] A reasonable person in the University’s position would have contemplated that there was a risk of injury if Mr Bradley again engaged in the type of conduct which Ms Carney alleged. A reasonable person, confronted with that foreseeable risk of injury, would not have done nothing. Reasonableness required by way of response, in the first instance, the taking of reasonable and appropriate steps to investigate Ms Carney’s allegations. No such investigation was undertaken. The course of an investigation, even of a relatively informal kind, would have been documented. As matters transpired, there was no investigation and it is quite unclear whether Professor Thomas found Ms Carney’s allegation to have been substantiated. The letter that he wrote to Mr Bradley on 15 July 2008 stated that he was satisfied that there was no substance to the allegations. However, that cannot be the case, even on the basis of the limited amount of information that he was given by Mr Bradley about the incident. Professor Thomas was told only one side of the story, but even Mr Bradley’s account of events confirmed that he had yelled at Ms Carney.
[116] Shortly after Ms Carney’s complaint was received, Professor Thomas asked Mr Bradley to come and see him about it. Mr Bradley told Professor Thomas that Ms Carney had delayed raising a purchase order so that an invoice could be paid. He told Professor Thomas that Ms Carney had delayed doing that because she believed that due process had not been achieved. This was an inaccurate or at least incomplete account of the facts. Yet Professor Thomas accepted it and neither made nor caused any inquiries to be made of University staff. If he had done so he would have ascertained that Ms Carney had not received the invoice, and the reason why no purchase order had been raised was because other people within the administration had not taken steps to document arrangements with the contractor that would allow such a purchase order to be raised in accordance with University procedures and the requirements of external auditors. Mr Bradley also responded to Ms Carney’s complaint by saying that she had been getting slower and had a lot of personal problems in her life. This was untrue. Ms Carney’s problems related to her work, particularly the stresses placed upon her by Mr Bradley’s behaviour. Having been told only one side of the story, Professor Thomas was in no position to reach an informed conclusion about the incident on 13 December 2007 or its causes.
[117] Ms Carney’s employment status was resolved early in 2008 and the University decided not to investigate her complaint against Mr Bradley. Professor Thomas said in his evidence, “It was his word against hers”. However, an investigation, even of an informal kind involving an interview with Ms Fuller, would have established that Ms Carney’s word about what happened was true. If her complaint about the incident on 13 December 2007 had been properly investigated then Mr Bradley’s conduct would have been shown to be far more serious than Professor Thomas supposed it to be.
[118] Any proper investigation in the January/February 2008 period would have established that WorkCover’s investigations had proven that Ms Carney’s complaint about the incident on 13 December 2007 had been established and that Mr Bradley’s verbal abuse, aggressive behaviour and threats had caused Ms Carney a psychiatric injury.
[119] In the absence of an investigation by the University, either in accordance with its own procedures or of a more informal kind, Professor Thomas reached the ill-founded conclusion that Mr Bradley had yelled at Ms Carney because Ms Carney had failed to pay an invoice that should have been paid by her or Ms Fuller. Being uninformed as to the true facts, Professor Thomas took a low-key response to a complaint that had not been investigated.
[120] According to Professor Thomas, he told Mr Bradley that raising his voice, as Mr Bradley explained he had done, was “not good management style”, particularly with Ms Carney, and that “other people’s perceptions of his management style were just as important as his perception of what he was actually doing to expedite a building being completed”. Professor Thomas told Mr Bradley that there needed to be a balance struck with more sensitivity on his part rather than having outbursts of that kind. Mr Bradley was told that he needed to carefully examine his management style so that the perceptions of other people were taken into account. This advice was given in an informal setting.
[121] According to Mr Bradley he was given general advice, rather than any direction. The advice was to be careful about those sorts of interactions and that “there are threats out there”. By this Mr Bradley understood that Professor Thomas was counselling him that “people can sort of take advantage of those situations.”
[122] I am unable to determine whether Professor Thomas or Mr Bradley’s recollection of what was said by way of advice is the more accurate. One of the reasons I cannot resolve what was said is that this informal, general advice was not recorded in a contemporaneous note or confirmed to Mr Bradley in writing. Mr Bradley was not directed that if he engaged in similar conduct again then it would have serious consequences for him. Mr Bradley received no form of directive. The message that he took away was one about other people’s perceptions and how people can take advantage of such situations.
[123] The course taken by the University was not a reasonable response. The risk that an employee, particularly a female employee, might sustain serious psychological distress, if not a psychiatric injury, as a result of being yelled at and threatened by Mr Bradley was reasonably foreseeable. The matter warranted investigation because Ms Carney’s complaint had not been withdrawn and her complaint involved a serious matter. An independent assessment had concluded that Mr Bradley’s behaviour had caused Ms Carney a psychiatric injury. Without a proper investigation into Mr Bradley’s conduct there was a real risk that it would be repeated. A proper investigation was necessary in order to determine what should be done. A proper investigation would have resulted in findings that Mr Bradley had engaged in abusive conduct that resulted in a serious psychological injury to a female member of staff. Such a finding would have resulted in at least Mr Bradley being reprimanded and steps being taken that required him to address his aggressive behaviour.
[124] The informal discussion between Professor Thomas and Mr Bradley was not a reasonable response in all the circumstances. It was not reasonable because it did not follow an investigation that determined the facts. The general advice that Mr Bradley received was inadequate and fell short of the reprimand that would have followed any proper investigation. A formal reprimand by Professor Thomas, with or without a written warning that Mr Bradley would face more serious disciplinary action if he behaved that way again, would have been the response of a reasonable person in the University’s position following an investigation into the matter.
[125] It would have been open to the University to provide Mr Bradley with additional counselling from a suitable provider of such services. However, whilst this was open by way of a reasonable response, I am not persuaded that the failure to require him to receive such counselling constituted a breach of duty. A reprimand and counselling by Professor Thomas, who Mr Bradley regarded as a mentor, after an appropriate investigation into the matter was the action that a reasonable person in the University’s position would have taken in all the circumstances in response to the foreseeable risk of injury to one of its employees.
[126] In circumstances in which the University was aware prior to 14 March 2008 that Mr Bradley was aggressive, capable of arousing distress in female employees and had in fact caused Ms Carney to develop a psychiatric injury, the University owed its female employees, including Ms Wolters, a duty to take reasonable care to avoid psychiatric injury.
[127] By failing to investigate Ms Carney’s complaint and in failing to take appropriate action to reprimand and counsel Mr Bradley after such an investigation, the University breached its common law duty of care to Ms Wolters and breached its contract with her.
Would the incident with Ms Wolters have been avoided if the University had taken appropriate action to reprimand and counsel Mr Bradley?
[128] A defendant who exposes a plaintiff to a risk of injury or who, by omission, fails to take reasonable steps to avoid or minimise that risk is not liable unless the risk comes home in the sense that the Court is ultimately satisfied on the balance of probabilities that the defendant’s breach caused or materially contributed to the harm actually suffered.[16] The onus remains on a plaintiff to prove that the harm in fact resulted from the risk, or increase to the risk, created by the defendant’s breach of duty.[17]
[129] Questions of causation depend on hypothetical considerations, but unless these issues are resolved in the plaintiff’s favour, on the balance of probabilities, the court cannot be satisfied that the conduct of the defendant caused the loss.[18] In a case such as the present, the plaintiff must prove that performance of the duty would have averted the harm, and this depends on the probabilities for and against. It is not sufficient to establish causation that the defendant’s breach of duty increased the risk of injury.[19] All relevant circumstances, including an increase in the risk to the plaintiff from the defendant’s breach of duty and the character and sequence of events, must be considered in deciding whether a defendant’s breach of duty which is a possible cause of the plaintiff’s damage materially contributed to that damage.[20] In some cases breach of duty coupled with an incident of a kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the incident did occur owing to the act or omission that constitutes the breach of duty.[21] In such a case, the inference leading to liability on the part of the defendant is more probable than any other inference. But the onus always remains on the plaintiff to prove causation. The mere fact that a breach of duty has occurred, followed by injury within the area of foreseeable risk, does not necessarily mean that the evidential onus is reversed.[22]
[130] The question of causation is not answered by pointing out that the relevant duty was to take reasonable care to prevent the very kind of injury that has transpired. A plaintiff does not succeed merely by showing that certain steps might have prevented the injury from occurring.[23]
[131] Ms Wolters submits that, as a matter of common sense, the University’s breach of duty caused the incident. She submits that Mr Bradley appears to be a person who has difficulty dealing with his anger and stress, and that it is likely if counselling had been performed in a proper way, or if anger management training had been offered, Mr Bradley would not have behaved in the way that he did on 14 March 2008. I have found that the University breached its duty by failing to reprimand and counsel Mr Bradley against behaving in the same way again. It was open to it to advise him to receive further counselling, including “anger management training”, but the evidence does not support the conclusion that the University was in breach of duty in not requiring him to undertake such steps, and there was no evidence about the efficacy of such training.
[132] During argument I raised the point that if Mr Bradley’s propensity to angry outbursts was as deeply entrenched as some of the evidence suggested, then it was difficult to conclude that proper counselling, even by the Vice-Chancellor who Mr Bradley respected, was likely to make a difference. In response, Counsel for Ms Wolters disclaimed my suggestion that her case was that Mr Bradley’s behaviour in yelling and waving his arms around was his “standard operating procedure”. She submitted that Ms Wolters’ case was that there were only two demonstrated events of this kind: one with Ms Carney and one with Ms Wolters. However, this submission did not address Ms Carney’s evidence about Mr Bradley’s habit of yelling at people.
[133] In deciding whether, on the balance of probabilities, a reprimand and proper counselling from the Vice-Chancellor would have avoided the incident on 14 March 2008, I have regard to the evidence about the effect of the general advice that Mr Bradley was in fact given. According to Mr Bradley, he heeded the advice. According to Ms Fuller, there was an occasion after the incident with Ms Carney in which Mr Bradley was able to restrain himself when he appeared “ready to explode”. Professor Thomas believed that Mr Bradley took on board the advice that he gave him, and said that he received “no formal evidence” to suggest otherwise. What other evidence he may have received was not explored.
[134] I find that Mr Bradley would have taken on board a reprimand and counselling that further, similar behaviour would not be tolerated. He would have tried to follow such counselling, especially if it had been given by the Vice-Chancellor. It is possible, even probable, that a reprimand and proper counselling would have significantly reduced the risk of Mr Bradley aggressively yelling at staff, particularly female staff, in the usual course of his administration.
[135] The issue, however, is whether, on the balance of probabilities, it would have avoided the incident with Ms Wolters. It is possible that it would have. However, I am not persuaded, on balance, that it would have. A reprimand and counselling might be expected to have some effect; otherwise it would not have been a reasonable response to the risk that Mr Bradley would yell at and verbally abuse staff, particularly female staff. However, I am not persuaded that it would have been effective to alter Mr Bradley’s behaviour towards Ms Wolters on 14 March 2008. This was not a normal office situation, and Mr Bradley might have expected a security officer to accept robust criticism and emphatic directions. According to Professor Thomas, Mr Bradley had been involved in past confrontations and raised his voice with security officers. Professor Thomas did not regard this as bullying because the security officers had provoked the situation and were “strapping ex-forces guys who raised their voices on a regular basis” and were “quite different from the normal people who populate universities”. Of course, Ms Wolters did not have that background, but her position as a security guard would have put her in a different category, so far as Mr Bradley was concerned, from a female office worker who might be less robust.
[136] More importantly, the incident did not evolve in the course of Mr Bradley’s normal duties in an office. He was reacting to what he perceived to be a crisis. He perceived Ms Wolters to have abandoned her duties during such a crisis. He reacted to the situation impulsively.
[137] A reprimand and proper counselling in response to the Heather Carney incident, even if administered a few weeks earlier, was unlikely to have altered Mr Bradley’s impulsive response to Ms Wolters’ perceived dereliction of duty at the height of a crisis.
[138] I am not persuaded that Mr Bradley would have acted differently once he saw Ms Wolters sitting in Ms Gould’s office. The confrontation would have been much the same. It is more probable than not that he would have acted towards Ms Wolters much the same way as he did. The incident still would have occurred and its aftermath would have been much the same.
[139] Ms Wolters has not proven that if the breach of duty had not occurred, and instead the University had taken appropriate action to reprimand and counsel Mr Bradley, the incident would have been avoided.
[140] Ms Wolters has failed to prove that the University’s negligence and breach of contract caused the incident.
Did the incident cause Ms Wolters to suffer the psychiatric injury and other consequences claimed by her?
[141] If Ms Wolters had proven that the University’s negligence and breach of contract caused the incident, then she was required to prove that the negligence and breach of contract caused her to suffer the psychiatric injury and other consequences claimed by her. Ms Wolters has been diagnosed as suffering an adjustment disorder with depressed mood.
[142] As already previewed, the psychiatric illness which she currently suffers originates with the incident. That psychiatric illness probably would not have developed, or not developed to the same extent and for the duration that it has, if the University’s response to the incident on 14 March 2008 had been different. These include the University’s failure to adequately respond to her grievance and Mr Bradley’s conduct in aggravating matters by sending his 17 March 2008 memorandum to the Vice-Chancellor.
[143] The issue is whether the incident, as distressing as it was and having the potential to cause a psychiatric illness if her psychological distress was not ameliorated, should be treated as a cause of Ms Wolters’ psychiatric injury and the financial and other consequences in respect of which she claims compensation.
[144] The law requires that a plaintiff prove that a defendant’s conduct materially caused the injury.[24] In law, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence.[25] A person should not be liable for every wrongful act or omission which is a necessary condition of the occurrence of the injury.[26] The mere fact that injury would not have occurred but for the defendant’s act or omission may not be enough to establish a causal connection for legal purposes. Accordingly, the mere fact that Ms Wolters’ psychiatric injury would not have befallen her but for the incident on 14 March 2008 may not be enough to establish a causal connection for legal purposes.
[145] If, however, the incident did cause her injury, then it need not be its sole cause. Causation will be established if the relevant act or omission contributed materially to the damage suffered. The law recognises that concurrent or successive acts may each amount to a cause of the injury suffered by the plaintiff.[27]
[146] Questions of causation are resolved by applying common sense to the facts of each case. Value judgments are involved.[28]
[147] The evidence supports the conclusion that, depending upon the severity of the incident and Ms Wolters’ circumstances, the incident could have caused not only psychological distress, but a recognisable psychiatric injury. This might be the case for a female security officer in Ms Wolters’ circumstances, who appeared to be of “normal fortitude”. This evidence included expert evidence which was relevant to issues of reasonable foreseeability in the context of duty of care, and to issues of causation.
[148] Ms Wolters’ treating psychiatrist, Dr Mungomery, expressed the opinion that it would be “reasonably foreseeable that a person of normal fortitude without any particular emotional vulnerability would be likely to have developed a psychiatric injury if exposed to workplace abuse by a high level superior of similar severity and nature to that experienced by Ms Wolters in March 2008.” Dr Mungomery’s assumption about the abuse experienced by Ms Wolters in March 2008 accords with my findings. His report of 28 April 2011 continued:
“Subsequent denial of [the] workplace event having occurred by the University, allegations by the University of poor work performance against Ms Wolters, their unwillingness to provide mediation or return to work placements to assist in her rehabilitation and recovery, protracted delays in her psychiatric injury being accepted as work related and impact of her injury on her capacity to return to gainful employment and secondary financial hardship would be also considered to have likely contributed to the development of a psychiatric injury in a person of normal fortitude without any particular emotional vulnerability.”
Dr Mungomery explained in his oral evidence that in her previous work as a security officer Ms Wolters had had to deal with numerous events and demonstrated a capacity to deal with conflict in many different situations. By contrast, the situation on 14 March 2008 was a conflict that “psychologically overwhelmed her and started the beginning of her psychiatric injury”. This was because she was belittled by somebody in a position of power and authority, which made her much more vulnerable. This situation differed from one in which a peer may have said the same thing. Dr Mungomery was taken to Ms Wolters’ sworn evidence about the incident and remarked that the various aspects of it had “a threat aspect to them”. She felt threatened in relation to the hands that were being waved wildly at her, Mr Bradley came at such a pace that she did not know whether he was going to come over the top of her and, even though he did not, the perceived threat existed. Such an episode would have unsettled her psychologically due to her loss of control over the situation and a breakdown in the normal relationship between a superior and a worker. Having a superior treat her in that sort of way was outside of her normal experience.
[149] Dr Mungomery explained under cross-examination that there were two kinds of threat in operation. One was a sort of primal threat from the aggressive verbal and physical aspects of the interaction. This was coupled with a professional threat and it is hard to separate the two because they happened together. Although the personal threat was removed, the event had an enduring impact on her ability to have “that sense of identity that came from her professional role as a security guard”.
[150] Dr Byth expressed the opinion that most people subject to the same amount of stress in the context that Ms Wolters experienced it would have developed some kind of adjustment disorder. He accepted that the more significant the physical and emotional threat, the greater the likelihood that someone would decompensate. He did not accept that a reasonable person would not decompensate as a result of the exchange that occurred between Mr Bradley and Ms Wolters. The exchange that had already occurred over the radio meant that she was “primed” to be upset, then Mr Bradley gave her a severe dressing-down which she thought she did not deserve, she felt very trapped and anxious and even under physical threat. Dr Byth could understand a person decompensating after that, particularly somebody like Ms Wolters who “has somewhat of an obsessive compulsive type of personality traits in her make-up who take their work very seriously.” To be accused by a superior in such a situation of having done a hopeless job would make such a person feel personally offended and crestfallen, and it could linger on in the person’s mind, especially if there was not much support for her after it.
[151] Dr Byth expressed the opinion that it could lead to an adjustment disorder in a person who did not have a vulnerable, pre-morbid personality. He explained that Ms Wolters’ personality traits in relation to her work were not a personality disorder. Most people in her kind of work who had such traits would find them advantageous in terms of being thorough, conscientious and orderly. A person with such traits who was unfairly criticised in front of another employee in a very boisterous sort of manner by an employer would be likely to develop a mild adjustment disorder. Many people would take stress leave and see their general practitioner after such a traumatic event in the workplace. It was not a normal reaction for such an adjustment disorder to remain for so long. However, as Dr Byth explained, such a condition can lead to a vicious cycle of depressive thoughts, being off work and loss of confidence in returning to work. Anti-depressant medications may only partly work and social relationships are adversely affected. The depressive condition became chronic, and the memory of the incident lingered on as “an insult to her capacity to work, and reduced her confidence in herself as a reliable worker”. In Ms Wolters’ case it has had a profound effect on her confidence.
[152] According to Dr Byth, the aftermath of the incident has stirred her up, rather than settled her down.
[153] As to the incident itself, Dr Byth thought that her traits of being an orderly and conscientious worker meant that she was understandably offended when a representative of her employer told her that she was doing a bad job when there was no basis for that claim. She took the matter very seriously. This was reflected in the fact that she drove through a red light that afternoon. This demonstrated the anxiety of the event and feeling overwhelmed. When asked when Ms Wolters’ adjustment disorder actually developed, Dr Byth expressed the opinion that “it started right at the moment” of the incident when “she experienced high anxiety and feeling threatened”. She saw her general practitioner shortly afterwards and took stress leave. It was present from the beginning and varied in severity.
[154] Professor Whiteford examined Ms Wolters on 17 March 2010 and found that she met the diagnostic criteria for an adjustment disorder with depressed mood, in partial remission. On the basis of the information available to him, Professor Whiteford thought that Ms Wolters developed either a major depressive episode or an adjustment disorder with mixed anxiety and depressed mode. He thought it would be “very unusual” for incidents of verbal abuse to have caused the onset of a mental disorder in a person not otherwise vulnerable to develop such a disorder. She became distressed by the adversarial process in which she became engaged. Professor Whiteford thought that a number of non-work related stressors including the death of her step-father, problems relating to the health of other family members and her own physical health contributed to her condition. His report of 18 March 2010 expressed the opinion that it was likely that her psychological reaction to Mr Bradley’s comments was such that, when combined with other stressors, an adjustment disorder was triggered. On the basis of his understanding of the incident, namely verbal abuse of Ms Wolters, he thought it would be very unusual for an individual without any pre-existing mental health problems or psychological vulnerability to have developed a mental disorder. For a mental disorder to develop the person would have to have been psychologically vulnerable or to have other stressors operating. He believed the latter was the case with Ms Wolters. He concluded that work and non-work factors, especially the adversarial legal process in which she was involved, had prevented full resolution of her adjustment disorder.
[155] In a subsequent report dated 14 November 2011, after a further examination of Ms Wolters on 10 November 2011, Professor Whiteford thought that the residual manifestations of her adjustment disorder had resolved, and there was no continuing mental disorder. He was unable to identify any pre-existing mental health problems or significant psychological vulnerabilities and again concluded that other stressors, including issues related to her partner’s mental health problems and the stress of the litigation, explained why her symptoms persisted for so long. Professor Whiteford did not at that time identify any obsessive personality traits that amounted to a psychological vulnerability. However, on 24 August 2012, having reviewed the evidence given at the trial, Professor Whiteford stated to the University’s legal representatives that Ms Wolters had obsessive personality traits and that this was a vulnerability in relation to her decompensation. He also observed that although Ms Wolters had been exposed to episodes of interpersonal conflict and stress previously in her position as a security officer with the University and at Qantas, she had never suffered a decompensation as a result of those incidents. According to Professor Whiteford, the difference with this incident was that the confrontation was with a superior who was criticising her in relation to the performance of her duties.
[156] Professor Whiteford thought on 24 August 2012 that Ms Wolters could not still have an adjustment disorder since, by definition, an adjustment disorder must not continue for more than six months after the date of the stressor that caused it. He also expressed the opinion that Ms Wolters’ personality traits prompted her to continue searching for an apology which would have vindicated her position with respect to what she perceived as an unfounded criticism of her work performance.
[157] Under cross-examination Professor Whiteford was reminded that he had not earlier thought that Ms Wolters’ devotion to her work and personality traits in that regard amounted to a psychological vulnerability. In his evidence he accepted that her devotion to work, by itself, would not have caused her to be vulnerable since many people are devoted to their work without having a vulnerability.
[158] Importantly, the opinions which Professor Whiteford expressed in his 14 November 2011 report were based upon instructions about the incident which are not consistent with my findings of fact. Professor Whiteford’s opinions were based upon instructions that “while speaking to the plaintiff Mr Bradley’s tone was firm and authoritative but not aggressive or threatening”. His only hand gesture was said to be one that indicated the direction in which he expected Ms Wolters to go to attend to her duties. His opinion that a person in Ms Wolters’ position, and of normal fortitude, would not develop a mental disorder with persisting psychiatric disability was expressly given on the basis of that version of events. However, when a different set of circumstances were put to Professor Whiteford in the course of his oral evidence, including the fact that Mr Bradley waved his arms around like a madman and yelled loudly, Professor Whiteford did not accept that in those circumstances a person of normal fortitude would foreseeably suffer a psychiatric injury. He observed that to get a psychiatric injury a person “would have to at a minimum believe they were going to be assaulted, and most people who believe they’re going to be assaulted don’t develop a mental disorder.” As to Ms Wolters’ apprehension that Mr Bradley might not stop and come over the top of her, Professor Whiteford thought that in a minority of people a mental disorder could develop in such a case. However, he thought that other stressors, a vulnerability or some additional cause of decompensation was required. In addition, Professor Whiteford thought that the longevity of Ms Wolters’ symptoms was due in part to the litigation and conflict caused by the incident. Had the University dealt with her complaint differently, and resolved it by other means, her condition would not have lasted so long. Still, Professor Whiteford accepted that the interaction with Mr Bradley on 14 March 2008 was “the precipitating event which caused Ms Wolters’ psychiatric injury”. The events that occurred afterwards exacerbated or prolonged the symptoms that she suffered.
[159] Professor Whiteford explained that when he wrote his report dated 18 March 2010 he thought that Ms Wolters had developed a major depressive disorder since normally an adjustment disorder would have been resolved. However, in his oral evidence Professor Whiteford explained that other stressors that she had experienced meant that she had maintained or prolonged the adjustment disorder. The adjustment disorder that Dr Mungomery had first diagnosed was consistent with her history.
[160] Professor Whiteford accepted that a perception by Ms Wolters that Mr Bradley might come over the top of her during the course of the confrontation where he yelled at her and waved his arms would certainly increase the risk of her decompensating, rather than just being upset about the incident. It was possible that a person of normal fortitude would decompensate as a result of such an event in which Mr Bradley acted aggressively and yelled at her.
[161] In his re-examination Professor Whiteford explained that the incident precipitated Ms Wolters’ condition because she was being verbally abused and accused by a superior officer, and also because he accused her of not performing her duties appropriately at a time when there was an emergency. She thought that the criticism was not only inaccurate and unfair but was “a personal slight on her professionalism”. This was something that she held close and was “very much part of her identity” and she did not cope with the assertion that she had failed in her professional duties. This made it more likely that she would decompensate.
[162] The psychiatric evidence reflects the common sense view that, depending upon the severity of the incident, how threatened Ms Wolters felt as a result of Mr Bradley’s aggressive actions and yelling, and also depending upon her personality, she might develop a psychiatric illness such as an adjustment disorder. Such a response, going beyond severe psychological distress, might be unlikely in most people. However, it is a possible outcome for someone of normal fortitude with Ms Wolters’ personality traits.
[163] I find that her adjustment disorder was triggered by the incident. Her condition was prolonged and developed into a depressive disorder because of subsequent events.
[164] The present issue is not about the University’s duty of care or what a reasonable response required on its part to the foreseeable risk that an employee such as Ms Wolters might suffer a recognisable psychiatric injury as a result of Mr Bradley’s aggressive and distressing conduct. The present issue is about causation. Harm in the form of psychiatric injury has in fact arisen. The incident triggered it. Ms Wolters’ psychiatric injury was in fact caused by the incident.
[165] The incident should be treated as a cause in law of her psychiatric illness. Her reaction to the incident was not sufficiently idiosyncratic that I should conclude that her psychiatric illness was not caused by the incident. Many individuals of normal fortitude would not have developed a psychiatric injury, as distinct from psychological distress, as a result of such an incident. The development of a psychiatric illness in Ms Wolters’ case is due, in part, to her personality and to events after the incident, which escalated matters, including the conduct of Mr Bradley in accusing her of unsatisfactory performance.
[166] In the context of attributing legal responsibility, the incident itself had a causative potency to cause severe psychological distress which might develop into a psychiatric illness if not ameliorated. The incident was frightening and humiliating, and consisted of an unfair and unfounded attack on Ms Wolters’ work performance.
[167] Ms Wolters was not obsessive about her work to a degree that amounted to a disorder. She combined her work with family life and recreation. Still, the personality trait of being somewhat obsessive about her work and reacting very badly to the incident contributed to the onset of the symptoms of an adjustment disorder.
[168] According to an account which she gave to Professor Whiteford, the accuracy of which is not contested, after returning home on 14 March 2008 Ms Wolters spoke to her team leader, Mr Muller, who is said to have told her that the interaction with Mr Bradley “was Mark Bradley’s knee jerk reaction when stressed ... just let it go”.
[169] Because of her personality and the pride which she took in her work, Ms Wolters was unable or unwilling to let the matter go. She felt compelled to pursue her grievance, and felt that she could not return to work while the matter remained unresolved. A bad situation became worse. This litigation was an added stressor. Events after the incident made her psychiatric condition more prolonged than it otherwise would have been.
[170] It is sad that someone with no history of mental health problems, who coped well with her work before the incident and who might have been expected to recover from the psychological distress that someone in her position would suffer as a result of such an incident has, instead, developed a psychiatric illness.
[171] The development of that illness and its prolongation may be attributed in large measure to events after the incident itself. These subsequent events prolonged her illness and, according to Professor Whiteford, may have transformed an adjustment disorder into a case of depression.
[172] The fact that the psychiatric illness from which she has suffered was caused, in part, by these subsequent events does not alter the fact that it was caused by the incident. In the context of determining legal responsibility for the alleged negligence and breach of contract of the University, I consider that the incident was a cause of Ms Wolters’ adjustment disorder, and did not cease to be a cause in law because of the subsequent conduct by the University and events which served to aggravate her condition. That subsequent conduct did not make the injury and consequential loss too remote. It was not unforeseeable that Ms Wolters’ grievances might be responded to by Mr Bradley, the University and others in the way they were.
[173] In summary, the incident was a cause of the psychiatric illnesses that Ms Wolters has suffered. It materially contributed to her condition, along with other factors. If Ms Wolters had proven that the University’s negligence and breach of contract caused the incident, then I would have found that the University’s negligence and breach of contract caused her to suffer a psychiatric injury.
[174] Having canvassed the expert evidence in the context of the issue of causation, I add the following about the evidence of the experts by way of a postscript on the duty of care issue to which their evidence also related.
[175] In Tame v New South Wales Gummow and Kirby JJ stated:
“...[Q]uestions of reasonable foreseeability are not purely factual. Expert evidence about the foreseeability of psychiatric harm is not decisive. Such evidence cannot usurp the judgment that is required of the decision-maker.”[29]
Their Honours also observed:
“[A]s indicated earlier ... expert evidence about the foreseeability of a risk of psychiatric injury is not decisive. The question of reasonable foreseeability involves an assessment respecting the foresight of a reasonable person in the defendant’s position; that foresight may differ from the foresight of qualified psychiatrists. The judgment belongs, ultimately, to a court, not to an expert witness. In making that judgment, a court will draw upon its reserves of common sense and reasonableness.”[30]
And as Spigelman CJ observed in State of New South Wales v Seedsman,[31] in determining the issue of foreseeability expert evidence is not always required: “Commonsense has a role to play in this, as in other areas of judicial decisionmaking”.
[176] The expert evidence supports the commonsense conclusion that it was reasonably foreseeable that severe verbal abuse by Mr Bradley of an employee over whom he has authority, accompanied by threatening physical actions, during which he unjustifiably attacks an employee’s work performance, would threaten and frighten an employee, particularly a female employee, and cause her acute psychological distress. It also supports the conclusion that such an incident might also cause such an employee to develop a psychiatric illness. It might do so to an employee of normal fortitude who took great pride in their work. That it might do so was reasonably foreseeable to the University. It was reasonably foreseeable to the University because it was aware prior to 14 March 2008 that Mr Bradley was aggressive, capable of arousing distress in female employees and had in fact caused Ms Carney to develop a psychiatric injury.
[177] The psychiatric evidence supports the conclusion earlier reached by me that there was a reasonably foreseeable risk of Ms Wolters suffering a recognisable psychiatric illness, and therefore the University owed her a duty to take reasonable care to avoid it.
Quantum
[178] Ms Wolters suffered a debilitating psychiatric illness as a result of the incident. She continues to receive treatment from Dr Mungomery. I accept Ms Wolters’ evidence and the evidence of her mother about the effect which her illness has had upon her daily life. Despite treatment and medication she remains depressed. Her condition may improve, somewhat, after the resolution of this litigation which has been a significant source of stress. It has required her to focus upon the past. Still, even with future improvement in her condition, she will continue to suffer a loss of amenity and an impaired capacity to undertake certain work.
[179] In March 2011 Dr Byth thought that Ms Wolters was capable of paid work other than security work, for example as a parking attendant or retail assistant but would continue to have a moderate permanent impairment of her capacity for such work because of ongoing symptoms of anxiety and depression. He thought that she would be able to work with the public in the future, provided this work did not involve confrontation, complex decision-making or working under heavy time constraints and pressure. She was able to cope with simple and light duties as a farmer.
[180] Dr Mungomery had earlier made a similar assessment of Ms Wolters’ capacity to work. In his 18 March 2010 report Professor Whiteford also considered that Ms Wolters was capable of working part-time or full-time in retail or sales. He considered her anticipatory anxiety about returning to work, but thought the longer she remained out of employment the more her self-esteem and self-confidence would be eroded. Accordingly he considered that she was capable of undertaking remunerated employment, initially in a graduated fashion in a range of occupations, including clerical work, sales, administration or manual labour such as she was undertaking on her farm. This was based on her reported success in farming and her hopes for its future.
[181] Professor Whiteford remarked that she had demonstrated the ability to make complex decisions with respect to establishing her business in circumstances in which she originally knew very little about farming, learnt new skills and negotiated the stresses of establishing a new small business in an unfamiliar area. At that stage she was working the equivalent of three full time days a week and expected to work more when harvesting commenced in the new year. Professor Whiteford thought that Ms Wolters’ prognosis was good. In a later report dated 13 August 2012 he remarked about the frequency of consultations between Ms Wolters and Dr Mungomery, but accepted that the frequency of contact was determined by clinical need. Still, as clinical needs changed so did the required frequency. He expected that Ms Wolters would continue to be reviewed by Dr Mungomery and that the frequency of her consultations with him would be less, especially if she had contact with a treating general practitioner.
[182] In his oral evidence Professor Whiteford was deferential towards Dr Mungomery’s assessment that Ms Wolters still suffers from a psychiatric illness requiring treatment. I accept that Ms Wolters continues to suffer from depression which requires treatment. However, I consider that the severity of her condition will diminish with time and further treatment. She will have a reduced earning capacity and a vulnerability to relapsing into depression.
[183] I assess general damages in the amount of $50,000. Interest at two per cent on half of this amount should be awarded for a period of four and a half years.
[184] Past economic loss is claimed on the basis that, at the time of the incident, Ms Wolters was earning an average of $658 net per week. Since the incident she has not returned to paid employment. On two occasions she attempted to re-enter the workforce through host employment but these failed due to the ongoing effects of her injury. She completed courses that enabled her to commence ginger farming on a one acre plot of land. She has recently begun to farm turmeric and garlic. She is yet to make a profit from this business which was registered in mid-2009. As a result, she claims damages at the rate of $658 per week which equates to $152,261.20.
[185] The University notes in its submissions that had the ginger price remained at the same level as Ms Wolters expected, then the farm would have made a profit of about $40,000 or $800 per week, which is greater than what she was earning as a security officer. However, ginger prices dropped and she has not made a profit. The University submits that the vagaries of ginger prices are too remote to attribute them to the tort and that a reasonable approach would be to award Ms Wolters the putative loss up until the time that the ginger farm was operational. I do not agree. I accept the University’s submission that it is important to bear in mind that compensation for such a claim requires consideration of, first, the extent to which the injury has caused a diminution in earning capacity and, secondly, how that diminution sounds in actual economic loss. However, Ms Wolters’ pursuit of self-employment by operating a ginger farm was a reasonable and commendable exercise to rehabilitate herself and to earn an income. It has not been shown that the price of ginger will be permanently depressed. At some point it might be necessary to consider the reasonableness of persistence in a continually loss-making farming business. However, as the University’s own submissions make clear, the farming activity has the potential to yield a reasonable income and it has not been shown that Ms Wolters’ persistence in conducting the ginger farm, and her attempts to diversify it into other crops, is unreasonable.
[186] In the circumstances, I will award past economic loss in an amount slightly less than that claimed by Ms Wolters, to take account of contingencies which might have affected her income had the incident not occurred. I assess past economic loss at $145,000. Interest on past economic loss should take account of the receipt of WorkCover payments. I have regard to the WorkCover payments listed in the plaintiff’s schedule of loss and damage of $58,664.30 and award interest on past economic loss in the amount of $19,426.
[187] There should be an award for past loss of superannuation benefits. Ms Wolters was entitled to superannuation at the rate of 17 per cent. This equates to a sum of $24,650 on her past economic loss of $145,000. Interest on this amount will be $5,546.
[188] As to her impaired earning capacity for the future, Ms Wolters claims a weekly loss until the retirement age of 65 on the basis that she has the capacity to work part time in retail. Based upon the award rate for a retail employee the amount of $254,243 is claimed to which she seeks a further “global amount of $50,000 for disadvantage”. She claims a total of $258,606.55 which reflects a discount of 15 per cent on this total.
[189] On the basis that there will be a full resolution of her disorder once the litigation has been resolved, the University submits that she will be left without any permanent psychiatric impairment, and that she should be awarded a global amount of $70,000 reflecting a period of about two years within which there should be resolution of her symptoms. The University argues that there is no demonstrable loss into the future, since Ms Wolters has chosen to embark upon a speculative farming venture. I do not agree with this approach.
[190] Although Ms Wolters’ condition may improve over time, especially following resolution of the litigation, she will remain at a permanent disadvantage on the open labour market.
[191] I find that if the incident had not occurred then Ms Wolters was likely to remain in employment at the University, with the opportunity for promotion, as a security officer. Alternatively, she might have obtained similar work with another employer.
[192] I take into account the possibility that her farming enterprise may prove a success and over time yield her a higher amount than she was receiving whilst working as a security officer. However, there is also the contingency that it will be unprofitable or yield only a small profit due to vagaries in market conditions. I do not accept the defendant’s submissions that these uncertainties make claims for loss of income based upon her pursuit of the ginger farming enterprise “causally independent from any demonstrable diminution in earning capacity that can be attributed to the event.” The success or failure of the ginger farm is one of many contingencies that must be taken into account in assessing reasonable compensation to reflect Ms Wolters’ loss of earning capacity.
[193] I do not consider that her impairment should be assessed in the amount claimed by her. I consider that her impaired earning capacity should be assessed on the basis of a loss of $150 per week until age 65 (multiplier 797) which amounts to $119,500. This amount should be discounted by 15 per cent for normal contingencies to yield a figure of $101,618. Loss of superannuation benefits should be calculated on that amount at 17 per cent, namely $17,275.
[194] Past expenses are agreed. I intend to award past expenses, interest on past expenses, future expenses and Fox v Wood damages in accordance with Ms Wolters’ damages schedule which is supported by the material before me or agreed.
[195] I assess quantum as follows:
General Damages $50,000.00
Interest at 2% on $25,000 for 4.5 years $2,250.00
Past Economic Loss $145,000.00
Interest on Past Economic Loss $19,426.00
Past Loss of Superannuation Benefits $24,650.00
Interest on Past Loss of Superannuation Benefits $5,546.00
Future Economic Loss $101,618.00
Future Loss of Superannuation Benefits $17,275.00
Past Expenses $46,292.85
Interest on Past Expenses $5,106.11
(5% per annum excluding WorkCover Queensland
Expenses of $23,240.40)
Future Expenses $28,848.80
Fox v Wood Damages $11,346.00
$457,358.76
Less WorkCover Queensland Refund $93,350.70
$364,008.06
Conclusion
[196] On 14 March 2008 Mr Bradley aggressively confronted and verbally abused Ms Wolters. This incident had disturbing similarities with Mr Bradley’s aggressive conduct towards Ms Heather Carney on 13 December 2007, which resulted in Ms Carney suffering a psychiatric injury.
[197] The University did not investigate the Carney incident. An investigation would have substantiated Ms Carney’s version of events. An investigation would have resulted in the then Vice-Chancellor reprimanding Mr Bradley and counselling him in strong terms against repeating such behaviour. The University knew in January 2008 that the incident had caused Ms Carney a psychiatric injury which had been accepted by WorkCover, being an injury that prevented her from returning to work. It knew at that time that Mr Bradley was capable of causing fear and distress in other employees, particularly female employees, and was capable of causing psychiatric injury to them.
[198] In failing to investigate the Carney incident, and in failing to take reasonable action to reprimand and counsel Mr Bradley, the University breached its common law duty of care to Ms Wolters and breached its contract with her. As serious as the Carney incident was, the risk that Mr Bradley would again cause an employee a psychiatric injury was not so high that the only reasonable response was to terminate his employment. As Ms Wolters’ counsel fairly and properly conceded, Mr Bradley’s conduct on 13 December 2007 was not necessarily a sacking offence.
[199] I am not persuaded that a reprimand and proper counselling of Mr Bradley in response to the Carney incident was likely to have altered his impulsive and aggressive response to Ms Wolters’ perceived dereliction of duty during a crisis on the campus on 14 March 2008. A reprimand and proper counselling was apt to reduce the risk that he would be aggressive towards and verbally abuse employees. However, it probably would not have prevented the confrontation that occurred on 14 March 2008. Ms Wolters has failed to prove that a reprimand and proper counselling probably would have avoided the incident with Ms Wolters and its aftermath.
[200] Having regard to my findings on causation, Ms Wolters’ claim in negligence will be dismissed. In the light of my findings on breach, she is entitled to an award of nominal damages for breach of contract. I will hear the parties in relation to costs.
Footnotes
[1] Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at 114.
[2] Czatyrko v Edith Cowan University (2005) 214 ALR 349 at 353 [12].
[3] Tame v New South Wales (2002) 211 CLR 317 at 365 [140].
[4] Supra at 332-333 [16], 343-344 [61]-[62] and 385 [201].
[5] (2005) 222 CLR 44 at 57.
[6] Ibid at 57 [33].
[7] Wyong Shire Council v Shirt (1981) 146 CLR 40 at 47-48.
[8] Koehler (supra) at 57 [35].
[9] Ibid at 57-58 [36].
[10] (2007) Aust Tort Reports 81-901; [2007] NSWCA 179 at [20].
[11] (2007) Aust Torts Reports 81-924; [2007] NSWCA 355.
[12] Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at 276 [9] per Gleeson CJ.
[13] Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at 478 [23].
[14] Vairy v Wyong Shire Council (2005) 223 CLR 422 at 461 [126]; Hegarty v Queensland Ambulance Service (2007) Aust Torts Reports 81-919; [2007] QCA 366 at [49]; Lusk v Sapwell [2011] QCA 59 at [17]-[18].
[15] Supra at 477 [20]-[21].
[16] TC v State of New South Wales [2001] NSWCA 380 at [59]; Flounders v Millar (2007) 49 MVR 53; [2007] NSWCA 238.
[17] Gittani Stone Pty Ltd (supra) at [44].
[18] Hegarty v Queensland Ambulance Service (supra) at [52] citing Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Lusk v Sapwell [2012] 1 Qd R 507 at 516-517 at [33]-[40]; 523-524 at [74]-[79].
[19] Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 280 [119]; Batiste v State of Queensland [2002] 2 Qd R 119 at 124 [10]; Flounders v Millar (supra) cf Jovanovski v Billbergia Pty Ltd [2010] NSWSC 211 at [68].
[20] E M Baldwin & Son Pty Limited v Plane & Anor (1998) 17 NSWCCR 434 at 473 [77].
[21] Betts v Whittingslove (1945) 71 CLR 637 at 649 discussed in Flounders v Millar (supra).
[22] Flounders v Millar (supra) at [34].
[23] Jovanovski v Billbergia Pty Ltd at [78]; Seltsam Pty Ltd v McGuiness (supra).
[24] Roads and Traffic Authority v Royal (2008) 245 ALR 653 at 689 [143]; Chappel v Hart (1998) 195 CLR 232 at 244-245 [27].
[25] March v E & MH Stramere Pty Ltd (1991) 171 CLR 506 at 509.
[26] Roads and Traffic Authority v Royal (supra) at 687 [135] citing Chappel v Hart (1998) 195 CLR 232 at 243-244 [26].
[27] March v E & MH Stramere Pty Ltd (supra) at 514.
[28] Ibid at 515.
[29] Supra at 386 [203].
[30] Ibid at 397 [234].
[31] (2000) 217 ALR 583 at 590 [32]; [2000] NSWCA 119 at [32].