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Keegan v Sussan Corporation (Aust) Pty Ltd[2014] QSC 64

Keegan v Sussan Corporation (Aust) Pty Ltd[2014] QSC 64

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Keegan v Sussan Corporation (Aust.) Pty Ltd [2014] QSC 64

PARTIES:

GABRIELLE RENEE KEEGAN

(plaintiff)
v
SUSSAN CORPORATION (AUST.) PROPRIETARY LIMITED

ACN 005 489 725

(defendant)

FILE NO/S:

SC No 62 of 2013

DIVISION:

Trial

PROCEEDING:

Civil

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

7 April 2014

DELIVERED AT:

Cairns

HEARING DATE:

20-22 August 2013 and 18-19 November 2013

JUDGE:

Henry J

ORDERS:

  1. Judgment for the plaintiff in the sum of $237,770;
  1. I will hear the parties as to costs.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – GENERALLY – where the plaintiff claims damages for personal injury and consequential loss arising as a result of the negligence, breach of contract or breach of statutory duty of the defendant, its servants or agents – where the plaintiff alleges she suffered a psychiatric injury as a result of bullying and harassment by her supervisor – whether the defendant took appropriate precautions to prevent such an injury from occurring – whether the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable as a consequence of the defendant’s breach of duty

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – GENERAL – where the plaintiff has been unable to function in her role as mother, wife and employee as a result of the defendant’s breach of duty – whether the plaintiff’s award should be reduced because of her personality traits

Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 305B, s 305D, s 306D, s 306F, s 306N, s 306O, s 306P

Workers’ Compensation and Rehabilitation Regulation 2003 (Qld) sch 9

Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, applied

Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, followed

Tame v New South Wales (2002) 211 CLR 317, applied

Vairy v Wyong Shire Council (2005) 223 CLR 422, applied

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

COUNSEL:

SD Anderson for the plaintiff

S Sapsford for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

Gadens Lawyers for the defendant

  1. The plaintiff, Ms Keegan, claims about $1.2 million damages for personal injury and consequential loss allegedly arising as a result of the negligence, breach of contract or breach of statutory duty of the defendant (“Sussan”), its servants or agents.
  1. She alleges she suffered a psychiatric injury as a result of bullying and harassment by her supervisor, Diana Clarke, over 11 working days at Sussan’s Cairns Central store. Her impairment is alleged to be so extreme that she is unlikely to be able to return to full time work.
  1. Sussan denies liability, arguing Ms Keegan has had an extraordinary and unforeseeable psychiatric response to essentially unremarkable behaviour by a supervisor towards her.

Background

  1. Ms Keegan had been an employee of Sussan’s Cairns Central store since 2004. She held the position of assistant store manager.
  1. In April 2010 she took leave to care for her new born child. While she was on leave the store manager, Anne McMahon, left the store and Ms Clarke was employed as the new manager.
  1. Ms Keegan returned to work on 7 September 2010. Within the ensuing 11 days at work she became so psychologically unwell, allegedly in consequence of Ms Clarke’s bullying conduct, that she was unable to return to work again.
  1. The concerning conduct of Ms Clarke allegedly included her unwarranted criticism of Ms Keegan about the previous state of the store, not signing up customers to the store’s VIP discount programme, poor handwriting, failing to remove security tags from clothing and not mopping the floor properly. It also involved excluding Ms Keegan from knowledge of and participation in matters of business management, ignoring Ms Keegan’s offers of assistance and warning her of the consequences of a drop in standards.
  1. Ms Clarke is alleged to have repeatedly spoken to Ms Keegan in an aggressive and nasty tone. In one instance she allegedly held her hand up towards Ms Keegan in a stop signal telling her not to help with arranging sleepwear for a sale and, in another, held a mop to Ms Keegan’s face challenging her for supposedly falsely asserting the mop was not in proper condition.
  1. Further to these complaints Ms Keegan described an isolating atmosphere in which Ms Clarke was generally more sociable and friendly towards other staff in comparison to Ms Keegan.
  1. On the third working day of Ms Keegan’s return she was telephoned by Sussan’s Queensland Business Manager, Jayne Makarein. Ms Makarein enquired of Ms Keegan how Ms Keegan and Ms Clarke were. At that point Ms Keegan chose not to reveal the problems she was experiencing and responded that she was enjoying being back at work and Ms Clarke was good.[1] 
  1. However, after the episode involving the mop at the end of the fourth working day Ms Keegan telephoned Ms Makarein and revealed the truth, outlining how Ms Clarke had been bullying her.[2]  This complaint did not prompt a proper application of Sussan’s bullying and harassment policy.  Ms Makarein’s unfortunate response was to telephone Ms Clarke telling her of what had been said and asking her to be mindful of how she dealt with Ms Keegan in the future.[3]  That did not solve the problem, unsurprisingly.
  1. Ms Keegan telephoned Ms Makarein on 13 September 2010 reporting her concerns about Ms Clarke’s continued conduct.[4]  After the events of Ms Keegan’s eleventh working day she telephoned Ms Makarein the following day, reporting to her that matters had become worse rather than better.  According to Ms Keegan, Ms Makarein’s response was to tell her she was going to have to work it out for herself.[5]
  1. Ms Keegan was too upset to return to work and went into a period of prolonged mental decline during which she received psychiatric treatment and her husband and mother took increasing responsibility for the day to day care of her child.
  1. She has been unable to return to any form of employment. It is admitted on the pleadings she has been diagnosed with a psychiatric injury variously described as:
  1. a major depressive disorder, single episode with possible melancholic features without psychotic features;
  1. major depressive disorder, single episode with significant melancholic features and borderline psychotic features complicated by pathological anxiety and psychosocial avoidant phenomenon;
  1. a chronic adjustment disorder with anxiety; and
  1. mixed anxiety depressive disorder.

The alleged foundation of liability

  1. Ms Keegan’s claim alleges her injuries and consequential loss arise “as a result of the negligence, and/or breach of contract and/or statutory duty by the defendant, its servants or agents”. However, the allegation of a breach of statutory duty is not repeated in the pleadings. Nor did Ms Keegan’s counsel articulate any breach of statutory duty in her written or oral submissions.
  1. The statement of claim alleges Ms Keegan’s personal injury was “a result of the course of conduct engaged in by Ms Clarke”[6] and “was caused by the negligence and/or breach of contract of the defendant.”[7] 
  1. The particulars pleaded of how the injury was caused by the negligence or breach of contract of the defendant are:

“14. The defendant by its agents or servants failed to provide and maintain a safe workplace by:

  1. Causing and/or permitting Ms Clarke to bully and harass the Plaintiff when the employer knew or ought to have known it was occurring;
  1. Failing to implement any or any adequate policy to prevent bullying and harassment of the Plaintiff;
  1. Failing to undertake any or any adequate enforcement of the bullying and harassment policy of the Defendant;
  1. Failing to raise any perceived issues with the Plaintiff’s work performance in a confidential and private manner;
  1. Failing to ensure that Ms Clarke was trained;
  1. Failing to provide Ms Clarke with any or any adequate training with respect to appropriately managing and communicating with the staff;
  1. Failing to provide any or any adequate supervision to ensure that a safe system of work was adopted by the defendant.”
  1. The statement of claim then alleges:

“16.In committing these acts and omissions the Defendant was negligent and in breach of its duty of care owed to the Plaintiff, further or alternatively the Defendant breached the terms of its contract of employment with the Plaintiff.

17.In the alternative, the Defendant is vicariously liable for the actions of Ms Clarke who engaged in the course of conduct, during which she bullied and harassed the plaintiff in the course of the plaintiff performing her employment duties.”

  1. Despite vicarious liability being pleaded “in the alternative” it was not alleged elsewhere in the statement of claim or in submissions at trial that vicarious liability is a foundation for Sussan’s liability separate and apart from its negligence or breach of contract. Rather, Ms Keegan’s case appears to be Sussan is liable for Ms Clarke’s alleged bullying and harassment because it caused or permitted it by failing to provide and maintain a safe workplace.

Legal principles

  1. An employer’s duty under the law of negligence to take reasonable care for the safety of employees also arises as an implied term of the employment contract.[8]  In the present case Sussan did not attempt to argue there is any material variation in the nature of the duty of care arising under the law of negligence as distinct from the law of contract. 
  1. It is well established the employer’s duty of care includes an obligation to take all reasonable steps to provide a safe system of work[9] and to take reasonable care to avoid psychiatric injury.[10]
  1. The critical pre-condition to liability for negligently inflicting psychiatric injury is 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.”[11] 
  1. It is not a separate pre-condition to liability that a person of “normal fortitude” might have suffered the psychiatric injury.[12] As the High Court explained in Koehler v Cerebos (Aust) Ltd,[13] the focus is not upon the hypothetical person of normal fortitude but rather upon the particular employee in the case under consideration and “invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.”[14]
  1. Further, it is not enough to demonstrate only that a psychiatric injury was reasonably foreseeable and that a defendant’s negligence was the cause thereof. The magnitude of the risk and its degree of probability must also be considered.[15]  As was explained by Spigelman CJ in Nationwide News Pty Ltd v Naidu:[16]

“[I]t 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. …

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. …

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 forseeability test of a risk that is not far fetched and fanciful, has been satisfied.”

  1. Consideration of the degree of probability that the risk of psychiatric injury may occur is effectively enshrined in s 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) which provides:

“(1)A person does not breach a duty to take precautions against a risk of injury to a worker unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.

(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—

(a) the probability that the injury would occur if care were not taken;

  1. the likely seriousness of the injury;

(c) the burden of taking precautions to avoid the risk of injury.”

  1. The consideration of whether a reasonable person in the position of the defendant would have taken precautions necessarily involves a consideration of what a reasonable person would have done by way of response to the risk.[17]  Importantly, that inquiry is prospective.[18]  In Nationwide News Pty Ltd v Naidu Spigelman CJ explained the particular significance of the prospective nature of the inquiry in the case of psychiatric injury:[19]

“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 the situation can be seen to arise which requires intervention on a test of reasonableness.”

  1. The High Court’s emphasis in Koehler v Cerebos (Aust) Ltd upon the need to give attention to the nature and extent of the work being done by the employee and signs given by the employee heralds a logical starting point for the application of the above principles to the present case.
  1. Some fields of employment might of their nature bespeak a heightened risk of psychiatric injury. Here there was nothing extraordinary about the nature and extent of the work Mrs Keegan was employed to perform. Nor was it out of the ordinary that in performing her work Ms Keegan should be subject to supervision and, if necessary, correction by her store manager, Ms Clarke. Indeed, to a greater or lesser degree, virtually any employed person will be subject to some form of supervision and potential correction by or on behalf of their employer.
  1. The High Court explained in Koehler v Cerebos (Aust) Ltd[20] that:

“...[T]he 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.”

By parity of reasoning in the present case, Sussan was entitled to assume Ms Keegan considered herself able to cope with supervision and, if necessary, correction by her store manager, that being an inevitable incident of the performance of her duties. Obviously such an assumption would be less readily open where the nature of such supervision or correction was known or should have been known to be excessive or inappropriate or where its effect was known or should have been known to be out of the ordinary.

  1. It is therefore important to analyse what the facts of the present case actually were with an eye to whether there were signs warning of the possibility of psychiatric injury. Was Sussan aware Ms Clarke was so lacking in ability as a supervisor as to signal the possibility she might occasion psychiatric injury upon those she supervised? Was Ms Clarke’s actual supervision and correction of Ms Keegan of such an unreasonable or excessive nature as to signal the possibility it might occasion psychiatric injury to Ms Keegan? Did Ms Keegan exhibit signs suggesting the possibility Ms Clarke’s supervision and correction of her might occasion psychiatric injury? The analysis of the facts should also consider, in the event there were such signs, what Sussan’s response to those signs was with a view to considering whether it was a reasonable response.

Factual Analysis

Prior to Maternity Leave

  1. Ms Keegan had worked full time as assistant store manager at Sussan’s Cairns Central store since 2004. The manager of the store throughout that time was Anne McMahon, who had worked there since March 2000.
  1. Ms Keegan had longstanding experience in retail sales and had managed the Cairns Central Katies store.[21]  While she had experienced some past psychological difficulty with bulimia, there is no suggestion it was work related or that Sussan should have been aware of it. On the face of it she was a stable and competent employee.
  1. Ms Keegan testified she did not ever receive a warning or have trouble about her work performance.[22] Ms McMahon testified she had no hesitancy about Ms Keegan’s ability and Ms Keegan knew her job “inside out”.[23]  Ms McMahon’s evidence was that prior to going on maternity leave “Gabby was probably the most loyal, dedicated person that I have worked with.”[24]  She further stated that Ms Clarke’s personality was “huge” and that she brought a lot of fun and enthusiasm to the workplace.[25]  Ms Laura Franks, store assistant, described Ms Keegan as a happy, bubbly person who was easy to get along with[26] and a great assistant manager.[27] 
  1. During her employment at Sussan, Ms Keegan was given positive feedback from Ms McMahon[28] and received positive performance reviews,[29] one of which was tendered in evidence.[30]  Ms Keegan also received positive feedback from customers.[31]  Ms Makarein, the manager in charge of Sussan’s Queensland stores, provided Ms Keegan with positive feedback from a customer who emailed to express the great customer service she received from Ms Keegan.[32]  Sussan customer support officer Haydee Hayes also wrote to Ms Keegan to congratulate her on excellent customer feedback and recognise her for her “hard work and positive attitude”.[33]
  1. Ms Keegan commenced maternity leave unreservedly intending to return to work. She explained:

“…I wanted to come back to work because I loved my job. … It was my life.  It was something that was a part of me.”[34]

During Maternity Leave

  1. Whilst Ms Keegan was on maternity leave Ms McMahon ceased her employment at the store and Ms Clarke was employed as the new manager.
  1. Ms Clarke was interviewed as a result of being referred by Ms McMahon.[35]  Ms McMahon’s evidence was that Ms Clarke was a shopper who had visited the store a few times.  Ms Clarke had said she was looking for work and Ms McMahon advised her position would be available soon.[36]  Ms Clarke was employed by Ms Makarein after interviews and reference checks.[37] 
  1. A reference check was provided by Donna Faulkner, who was the manager at Loloma Jewellers when Ms Clarke was employed there. Ms Faulkner testified that Ms Clarke came into her workplace with Ms Makarein, which was a surprise to her because Ms Clarke and Ms Faulkner did not speak. Ms Makarein enquired if Ms Faulkner would provide a reference for Ms Clarke, which she did the following day over the phone.[38]  Ms Faulkner testified that Ms Makarein asked her if she would employ Ms Clarke again and Ms Faulkner’s response was “no”.  When asked why, Ms Faulker said she did not believe that Ms Clarke was management material and she would need to learn management skills and people skills.[39]
  1. In the face of such a clearly adverse referee report from Ms Faulkner it should have been obvious at the outset to Ms Makarein that she was employing a person with probably limited management skills. Sussan was in effect put on notice of the need for Ms Clarke to receive management training and, at least initially, to closely scrutinise and support her performance as a manager.
  1. Sussan’s training of Ms Clarke in management was limited to on the job training. Ms McMahon testified that she was responsible for teaching Ms Clarke everything about her position because Ms Clarke had never worked in retail fashion.[40]  Induction training was provided to Ms Clarke by Ms Makarein, covering policies and procedures, including Sussan’s bullying and harassment policy.[41]  Ms Clarke was also taken through merchandising, store standards, the selling process and the basic running of the store.[42]  Such evidence as there was of the training Ms Clarke received suggests its emphasis was on Sussan’s policies and procedures and managing the store and not on how to manage people.  When Ms McMahon was asked if she trained Ms Clarke in management of staff she responded, “Well, we did go through the code of conduct and harassment policies.”[43]  Ms Clarke acknowledged Sussan gave her no training in personnel management.[44]  This made it all the more important for Sussan to closely scrutinise and support Ms Clarke’s performance as a manager of people.  Ms Makarein testified that the store’s presentation and sales lifted under Ms Clarke’s new management and the store’s employees expressed no concerns to her about Ms Clarke but she did not suggest Ms Clarke’s performance in managing staff was the subject of any particular ongoing supervision or support.[45] 
  1. Admittedly the store only had a small complement of staff, with seemingly only two or occasionally three staff members rostered on at any given time. If there had been on the job training about staff management it may potentially have sufficed in respect of staff who were working during that training period. But Ms Keegan was not working at that time. The return of Ms Keegan, the store’s longstanding assistant manager, to a store being run by a new manager was obviously an event that could potentially challenge Ms Clarke’s management ability. However, there was no evidence to suggest this prospect prompted any particular support or preparation of Ms Clarke by Sussan in advance of it occurring.
  1. To compound the prospect of that event being problematic the evidence suggests in the era after Ms Clarke commenced and Ms Keegan sometimes visited the store while on maternity leave, each of them became uneasy about working with each other.
  1. Ms McMahon testified Ms Keegan seemed annoyed upon hearing Ms McMahon was leaving the employ of Sussan and was apprehensive about who would be replacing her.[46]  Ms Keegan was to later inform Ms Makarein that Ms McMahon had told her Ms Clarke was tough and she had better watch out.[47] 
  1. Ms McMahon also made comments to Ms Clarke likely to arouse concern on her part about Ms Keegan. When she was asked whether she spoke to Ms Clarke negatively about Ms Keegan, Ms McMahon replied:

“I probably did tell that Gabby gave me trouble, because on certain occasions, she certainly did … we used to have the odd – remembering Gabby was a manager in her own right, before me, and she came.  So she came with all these strengths, and although we worked together as a team, sometimes my ideas might not have been hers, and she was—or if I would suggest something, she may not agree with me.  So we would have the odd tiff, but that wasn’t a bad thing. … So if I did say I had trouble, it was probably to do with her stubbornness and the fact that she knew her job.  She knew every aspect of Sussans the way I did, so there was no fooling her, and there was no getting over what she knew, and the hardest thing I think would be for a new manager to say something to Gabby that Gabby would know was not right, because Gabby just wouldn’t have just been silent.  She would have said this … is how it’s always done.  This is Sussan’s way.  So yes, I very well did.”[48]

  1. Ms Clarke’s account of this conversation was:

“I was told by Anne McMahon to be careful of Gabby because she used to give Anne a hard time and she would give me a hard time and just to watch her.”[49]

  1. Ms Keegan attended at the store during her maternity leave on various occasions; for instance to introduce herself to Ms Clarke,[50] to obtain her group certificate[51] and to collect lay-by clothing.  During one visit Ms Clarke had Ms Keegan mind the store for approximately five minutes while Ms Clarke went to the toilet.[52]  On another visit Ms Keegan asked Ms Clarke to have a coffee together and talk, with the objective of creating a good working relationship.[53]  This episode was prompted by a casual conversation Ms Keegan had previously with Ms Clarke when walking by the store.[54]  During this conversation Ms Clarke told Ms Keegan that she was a different manager, there had been changes and things were different now.[55]  Ms Keegan assured Ms Clarke that she would back her up and be the “2IC” Ms Clarke wanted.[56]
  1. On one occasion Ms Keegan attended upon the store to ascertain her forthcoming work roster. The roster book was not there, so Ms Keegan asked another employee, Annie, if she could access the point of sale computer for Ms Keegan to see the roster.[57]  Annie did so and Ms Keegan wrote her hours down.[58]  On a later date, before her return to work, Ms Keegan was questioned by Ms Clarke about accessing the computer.[59]  It is common ground that Ms Keegan did acknowledge when questioned by Ms Clarke that she ascertained her roster details from the computer via Annie.  However, Ms Clarke testified Ms Keegan initially falsely denied having gained access to the computer,[60] an assertion disputed by Ms Keegan.[61]  In point of fact, another staff member had accessed the computer so it was not a topic without risk of misunderstanding.  The defendant’s counsel emphasised this event as adversely impacting Ms Keegan’s credit.  While I accept Ms Clarke probably did perceive Ms Keegan lied when she first questioned her, I do not accept Ms Keegan actually did so. It is likely Ms Clarke’s impression that something improper had occurred left her more likely to assume the worst in interpreting Ms Keegan’s initial responses and she was unlikely to have allowed for the possibility Ms Keegan did not at first understand what she was being asked by Ms Clarke. 
  1. The upshot of this conversation was Ms Clarke instructed Ms Keegan she was not to access the computer again and not to be near the computer.[62]   This was not an unreasonable instruction because Ms Keegan was on leave and not accountable for the use of the computer, which also controlled the till.  However, its real motivation was Ms Clarke believed Ms Keegan lied to her about accessing the computer.[63]  Ms Clarke’s adverse view of Ms Keegan assists in explaining why the instruction was said without the courtesy of acknowledging to a long serving employee that she was not suspected of any improper motivation in having accessed the computer.  It was the kind of abrupt, insensitive style of expression which was to recur on Ms Keegan’s return to work.
  1. At one stage while on leave Ms Keegan became aware Ms Clarke, in preparing for her return, had only rostered Ms Keegan for a 30 hour week. She was contracted to work a 38 hour week and stressed that to Ms Clarke. Ms Keegan then contacted Ms Makarein about the issue and was subsequently advised Ms Makarein had contacted Ms Clarke and “sorted it out”. Ms Clarke did not like the way Ms Keegan addressed this issue.[64]
  1. On another visit Ms Clarke informed Ms Keegan that the two of them would be working alternating Thursday nights on her return.[65]  Previously Ms McMahon and Ms Keegan had avoided working Thursday nights and as “a little privilege” of management had the senior casual work on those nights.[66]  Ms Clarke’s evidence was Ms Keegan asked that she not work Thursday nights because her family only had one car and if the baby got sick her husband would not be able to take the baby to hospital.  Ms Clarke’s response was they would have to work around it as Ms Clarke did not want to work every Thursday night and the store rosters were set up for them to share that shift.[67]  Ms Keegan denied indicating to Ms Clarke that she was unhappy with this new arrangement,[68] although it is unlikely she would have welcomed such news.  It would have done little to ease the building tension surrounding the prospect of her and Ms Clarke working together.
  1. Ms Clarke recalled that Ms Keegan, in a number of conversations prior to her return, said she wanted Ms Clarke to trust her. Ms Keegan recalls differently, but, in any event, Ms Clarke testified these conversations made her feel “uneasy” because she did not understand why Ms Keegan was intent on Ms Clarke trusting her.[69]  While on her account Ms Clarke told Ms Keegan she did trust her, the reality, conceded in evidence by her, is she already thought Ms Keegan was a liar.[70] 
  1. Ms Clarke admitted to having made diary notes about Ms Keegan during the era when Ms Keegan was on leave because Ms Clarke had concerns about Ms Keegan returning to work.[71]  She told Ms Franks on more than one occasion that she was worried about Ms Keegan returning to work.[72]  She conceded she had a sense that there was going to be some problem when Ms Keegan came back to work.[73]  Ms Clarke’s subsequent treatment of Ms Keegan in the workplace certainly guaranteed that prophesy was fulfilled. 

Day One

  1. Ms Keegan returned to work on 7 September 2010. Within only 15 days, a space of 11 rostered working days, she was to depart on sick leave and never return to work.
  1. Ms Keegan gave evidence that her first day back at work with Ms Clarke was “not good”.[74]  She alleged Ms Clarke blamed her and Ms McMahon for the store being “disgusting”.[75]  Ms Keegan gave evidence Ms Clarke said, “I've cleaned the back room spotless.  And if you mess it all up, well you ‑ well, you just better look out.”[76]  Ms Keegan also testified Ms Clarke told her that she had had to apologise to customers who Ms Keegan had failed to sign up as VIPs.[77]  Ms Keegan stated Ms Clarke spoke in an aggressive tone towards her and Ms Keegan was too scared to say anything.[78] 
  1. Ms Clarke denied blaming Ms Keegan and saying the store was in a disgusting state.[79]  She denied telling Ms Keegan that Ms Clarke apologised on behalf of Ms Keegan to customers for not being signed up as VIPs[80] although on her own account she had in fact apologised to customers who had not been signed up.[81]  Ms Clarke also gave evidence that she spoke with Ms Keegan, possibly on more than one occasion, about the company’s focus on signing up as many VIPs as possible.[82]  She admitted telling Ms Keegan that the store had not signed up enough VIPs in the past.[83]
  1. In describing these initial events it appeared Ms Keegan’s description of what was actually said blended with her hindsight interpretation of what Ms Clarke intended by her comments. On the other hand, Ms Clarke’s outright denials were not credible. Ms Clarke likely did make comments to Ms Keegan indicating the store’s past presentation was inferior, the back room needed to stay tidy and she had apologised to past customers about them not having been signed up as VIPs. These comments were likely made without any sensitivity to the likelihood, which ought to have been obvious to a competent manager, that Ms Keegan would interpret them as criticisms of her or as warnings to her.
  1. Also on day 1, Ms Keegan, who was required to have knowledge of the store’s budget,[84] asked Ms Clarke about seeing the store’s financial books and Ms Clarke would not let her look at them.[85]  Ms Clarke disputes this allegation, stating that because Ms Keegan had been away, Ms Clarke did go over “the financials with her, the budget and VIPs”.[86]  It may be Ms Clarke gave Ms Keegan some cursory overview of financial matters but I accept Ms Keegan’s evidence Ms Clarke would not allow her to access the books.  So began a pattern of excluding Ms Keegan from information and activity which was integral to the performance of her job as assistant manager.

Day Two

  1. Ms Keegan gave evidence that on 8 September 2010 Ms Clarke questioned Ms Keegan about how her night was and whether she was tired, to which Ms Keegan responded she was not tired, she was fine.[87]  Ms Clarke acknowledged asking Ms Keegan, “How did you go, are you tired, how’s the baby, how did you manage?”[88]  Ms Keegan stated Ms Clarke told her if she was not coping they could reduce her hours, to which she replied she was okay.[89] 
  1. Ms Keegan testified Ms Clarke did not speak to her much for the rest of the day, though at one point alleged that Ms Clarke waited behind her while she finished serving a customer and said to Ms Keegan, “See that customer, I had to say sorry for you for what you did,”[90] a reference to signing up VIP customers.  Other customers were present in the store.  Ms Keegan testified Ms Clarke’s tone was aggressive and she was too scared to respond.[91] Again, Ms Clarke denied apologising on behalf of Ms Keegan to customers for not being signed up as VIPs.[92] 
  1. Ms Keegan gave evidence that, “I was afraid of her because of the way she was with me. She didn’t let me do anything in the store.”[93]  She testified Ms Clarke would not share her knowledge about business management information such as forthcoming sales.[94]  I accept Ms Keegan’s evidence.

Day Three

  1. Ms Keegan testified that on 9 September 2010 throughout the day she was ignored by Ms Clarke and there was little communication until a casual staff member, Laura Franks, arrived and Ms Clarke then chatted to and sought input from Ms Franks. Ms Keegan testified when she tried to talk to Ms Clarke about the business she would be ignored.[95] 
  1. Ms Makarein telephoned Ms Keegan on this day as a matter of routine to see how Ms Keegan was settling back in.[96]  She asked Ms Keegan how she was faring at work and how Ms Clarke was.  Ms Keegan replied she loved being back at work[97] and was happy working with Ms Clarke.[98]  She admits this was a lie.[99] 
  1. The defendant submits Ms Keegan’s response to Ms Makarein’s inquiry discredits her claim that in fact she was not faring well. It does not. Even Ms Clarke conceded “things were getting worse” between her and Ms Keegan while she and Ms Keegan worked together.[100]  Further, Ms Keegan was within a day of this conversation complaining about Ms Clarke’s conduct.  As at day 3 it is likely Ms Keegan was upset about Ms Clarke’s conduct but not so concerned by it as to overcome the natural reticence most employees would have against taking the major step of complaining about their supervisor.  That reticence would be even more likely in the mind of a staff member returning from prolonged leave to work under a new supervisor.

Day Four

  1. On 10 September 2010 Ms Clarke told Ms Keegan she was doing very well but, according to Ms Keegan, she was also told by Ms Clarke that if her standards dropped they would have to have a “chat”.[101]  Ms Clarke conceded she made a comment to the effect that if business started to go down they “would have to have a chat”.[102]  She claimed by that comment she meant the chat would be about how to improve the business[103] but she likely realised at the time it would be received as a reference to scrutinising Ms Keegan’s performance.
  1. On this day Ms Keegan was required to prepare a stock report, which she completed in handwriting. Upon completing the report Ms Keegan handed it to Ms Clarke who said, “What handwriting is this? You need to go back to school. And ‑ do it again.”[104]  Ms Clarke testified there were parts of Ms Keegan’s handwriting within the report she could not read and she asked Ms Keegan to re-write it.[105]  Ms Clarke said Ms Keegan did appear to be upset about this.[106]  Ms Keegan stated the usual practice had been to discard the report after its contents had been read over the telephone to Ms Makarein,[107] but Ms Clarke explained she wished to keep the reports, seemingly for her own information.[108]  Be that as it may, it remained unclear why the supposedly illegible parts of the writing could not be corrected on the existing document instead of pursuing the apparently pedantic option of having the whole report re-written.
  1. Ms Keegan recalls later that morning, after Ms Clarke had apparently spoken by telephone to Ms Makarein, Ms Clarke said to her in a nasty tone, “I'm off my three‑months probation now.  Whether you like me or not, I'm here to stay.”[109]  Ms Clarke agreed this conversation occurred, although she recalled telling Ms Keegan, “that was Jayne on the phone and I’ve finished my probation so it looks like I’m here to stay.”[110]  Ms Keegan alleges this is when Ms Clarke “really started to change”.[111]
  1. Ms Keegan gave evidence that at the end of the day Ms Clarke questioned her about whether she had mopped because there were black marks on the floor. Ms Keegan had mopped the store, but that was the previous night. Ms Keegan recalled the black marks shown to her were in an area where customers would have walked during the day and there had been no such marks after she had mopped the night before.[112]  This evidence prompted some unconvincing evidence from Ms Clarke that the black marks were actually underneath display tables.[113]  Ms Keegan also testified she advised Ms Clarke they needed a new mop head as the current one was peeling.[114]  Ms Clarke, who supposedly believed the mop used had not been clean enough, told Ms Keegan she had purchased a new mop head three weeks earlier and went to retrieve the mop.  Ms Clarke returned and showed it to Ms Keegan.[115]  Ms Keegan estimated Ms Clarke held the mop 10 centimetres from her face.[116]  Ms Clarke estimated it was approximately one metre away and actually closer to her own face than Ms Keegan’s.[117]  Ms Keegan testified Ms Clarke challenged her to say where the mop was peeling and said it was not peeling.[118]  On Ms Clarke’s account, she told Ms Keegan she needed to clean the mop before using it and Ms Keegan did not like being corrected and became defensive.[119]  Ms Keegan testified she did not say anything to Ms Clarke and went back to the counter to finish her work, at which time Ms Clarke told her to go.[120] 
  1. It is noteworthy, despite some disagreement on factual detail, that Ms Clarke agreed the confrontation about the mop happened and actually descended into her fetching the mop and holding the mop head up showing it to Ms Keegan. She did not admit holding it as close to Ms Keegan as Ms Keegan alleged. Both witnesses only gave estimates of the relevant distance but it appeared Ms Keegan’s estimate was the more reliable and Ms Clarke downplayed how far away she held the mop to show it to Ms Keegan. Ms Clarke’s conduct towards Ms Keegan, an experienced assistant manager, was intimidating and demeaning. It is also likely the accusation of incompetent mopping was inaccurate. Even if it had been accurate, there was no past pattern of incompetent mopping as to even potentially justify such a reaction on Ms Clarke’s part.
  1. Considered in isolation, some of the earlier mentioned episodes may not seem significant. But, considered as a whole, Ms Clarke’s behaviour towards Ms Keegan since she had returned to work, culminating in the mop episode, involved a pattern of such unreasonable and excessive behaviour by a manager towards an employee as to signal a risk that it may cause serious emotional distress.
  1. After leaving the store Ms Keegan telephoned Ms Makarein, crying, and told her Ms Clarke was “bullying” her. These “signs given by the employee concerned” (to use the above-quoted language of the High Court) mark a significant development in the case.
  1. During the call Ms Keegan told Ms Makarein she lied about being good on the previous day because she did not think Ms Makarein would believe her. Ms Keegan testified of the call’s content:

“Yeah, and she said stop crying.  What's wrong.  And I said to her, she's bullying me.  She won't leave me alone.  And she goes, but when I spoke to you on Thursday you were fine.  I said, I know.  I'm sorry.  I lied.  I said, I thought you didn't believe me.  I said I'd just come back from maternity leave.  I said, I'm telling you the truth.  And she said, oh, you've got guts to call me.  I said, well ‑ I said, thank you.  I said, but I was scared because you talk to ‑ you talk to her all the time on the phone.  She says, I don't favour any of my managers.  And I said, okay.  And then she said to me, could it be that you had ‑ had a baby and there's changes with that?  Or could it be that Anne was not ‑ was not there, and you're finding it hard with that, or ‑ and then the changes in the business.  I said no.  I said, that's not it.  And then she said, I'll speak to ‑ I'll speak to ‑ I'll speak to her, and she said you ‑ you go home and you go put some lippy on and you go home to your bub, and then I said, okay.”[121]

  1. She elaborated on the detail of what she told Ms Makarein of the bullying, testifying:

“What did you tell her?‑‑‑I told her about how she was telling me about ‑ she blamed me for the store, how disgusting it was.  How she told me that she had to say sorry to the VIP customers.  She told me that I told her about how she isolated me from the staff and then I was on my own all the time and I ‑ she ‑ she wouldn't let me have anything to do with the staff.  I couldn't do anything.  And she told me ‑ I told her about how she was behind the counter, she threatened me with my job.  I told her about the mop.  I told her and then ‑ and that's when she said is it ‑ to deal with the changes.  I said no, it's got nothing to do with it.”[122]

 

...

 

“I just told her everything – I just – because I was crying and really upset.”[123]

  1. I accept Ms Keegan’s account of this telephone call. Specifically, I accept that in this telephone call Ms Keegan did use the word “bullying” and described behaviour which was bullying behaviour as described in Sussan’s bullying and harassment policy.
  1. That policy relevantly provided:

“scope

This policy applies to all relationships within Sussan team including members, contractors, consultants, suppliers and customers.

policy

… This policy is aimed at ensuring that team members are not subjected to any unwanted workplace harassment or bullying. Sussan encourages all team members who experience harassment or bullying to report this immediately.  Any harassment or bullying issues will be taken seriously and will be investigated in a timely manner, and appropriate disciplinary action will be taken.

…

what is harassment?

Harassment is behaviour which is inappropriate, offensive and demeaning, is unwanted, uninvited or unwelcomed by the recipient, and creates an unpleasant or intimidating work environment.

…

what is bullying?

Bullying is any behaviour that belittles, intimidates, humiliates or offends a person and could put the person’s health, safety or welfare at risk.

Examples of harassment and bullying:

… Bullying

  • Withholding information essential to do the job properly

…

  • Public humiliation including being shouted at
  • Verbal abuse, shouting, aggressive language, threats and insults
  • Physical intimidation
  • Demeaning remarks
  • Constant unreasonable and unconstructive criticism
  • Excessively tight supervision
  • Persistent and undue criticism including inaccurate accusations about quality of work
  • Deliberately excluding, ignoring or ‘ganging up’ on someone

…

line managers and supervisors responsibility

…

  • Line Managers are responsible for treating all complaints seriously and taking immediate action to investigate and resolve any harassment or bullying reported or witnessed.
  • If a person approaches Managers or Supervisors with a complaint about harassment or bullying, they must take appropriate steps to resolve it.  If this is not possible or is inappropriate, then the People & Development Manager must be informed.

…

  • All complaints must be referred to the People & Development Manager.

…

what will be done in relation to complaints made to Sussan?

  • All complaints of harassment or bullying will be dealt with seriously.  Confidentiality will be respected at all times.
  • All complaints will be treated seriously and impartially, and investigated as confidentially as possible…”[124]
  1. The way in which Ms Makarein, the line manager above the store manager,[125] proceeded to deal with Ms Keegan’s complaint of bullying was inconsistent with the above policy. 
  1. Ms Makarein had overseen the appointment of Ms Clarke and her purported training and in Ms Keegan’s absence Ms Clarke had delivered the improved store performance Ms Makarein was seeking. The day Ms Keegan’s complaint was made was the very same day Ms Makerein had, according to her diary note, congratulated Ms Clarke on “the fantastic month and the improvements in the store”[126] and confirmed her permanent appointment.  My strong impression was that, even if unwittingly, Ms Makarein’s connection with Ms Clarke coloured her approach and attitude to Ms Keegan’s complaint. 
  1. Having failed to treat Ms Keegan’s complaint seriously it was hardly surprising that in giving evidence Ms Makarein appeared to downplay or have difficulty reliably remembering those facts which made it serious. For instance, she claimed not to remember whether Ms Keegan was crying during the call,[127] although her diary notes recorded the fact Ms Keegan “called crying”.[128]  Further, she asserted in cross-examination she did not believe Ms Keegan’s call was a complaint about bullying[129] and denied Ms Keegan had complained of being picked on and bullied.[130]  Yet on Ms Clarke’s evidence Ms Makarein told her Ms Keegan had complained of being picked on and bullied.[131]
  1. Ms Makarein’s evidence of what was said in the telephone conversation with Ms Keegan was:

“That she’d been given some good feedback that Diana had said that she was very pleased with her performance, but then Gabby … said there had – something along the lines of, you know, but you need to keep it up or we’ll be having a discussion.  And then she mentioned that she’d been given some feedback about the floor because the floor wasn’t clean.  And I think … they must’ve had the mop there or around there and, you know, it was – it – the mop itself was dirty so she would’ve made comment about that and seemed upset about that. …Yes, she said that the – that the mop was dirty and that we needed to clean that before cleaning the floor otherwise its just moving dirt around … I was quite surprised because, you know, I’d only spoken to her sort of the evening before and she seemed really happy and … then it sort of suddenly changed, so … I said to her perhaps, you know, you could have a – have a chat to her about how you’re feeling and just, I guess, most importantly its – take some time to work out how you’re going to operate as a team.  That, you know, you need some quality conversations to, you know – just to talk about that sort of thing and, you know, you’ve gone from a manager that’s been there for 10 years … to a brand new person.  So there’s that period that you need to, I guess, find out how you both operate and the best way to communicate in that sort of thing.”[132]

  1. Ms Makarein agreed Ms Keegan told her Ms Clarke was not letting her do her job.[133]  She also understood from what Ms Keegan told her that Ms Keegan felt threatened by Ms Clarke.[134]
  1. Ms Makarein’s managerial response to this complaint of bullying by a distressed employee about her supervisor was seemingly to suggest the employee and supervisor should take time to “chat” more about how they felt and how they would work together as a team in the future. It was a woefully inadequate and naive response to Ms Keegan’s complaint.

Day Five

  1. Ms Clarke testified that on the morning of 11 September 2010 she received a phone call from Ms Makarein about the conversation Ms Makarein had with Ms Keegan the evening before.[135]  Ms Clarke testified Ms Makarein told her there was an allegation she was picking on Ms Keegan and bullying her.[136] 
  1. Ms Makarein’s evidence of what she told Ms Clarke was obscure:

“I told her what had been said and that – basically the same thing I’d said to Gabby that, you know, you need to – I really think you need some time together to work through how you’re going to operate as a team, that sort of thing.  But also, you know, that – she’d given some really great feedback which was terrific, and I, you know – I was – I’ve only got one person’s version of the event so I said, you know, I’m not 100 per cent sure what you said but, I guess – and saying that just being mindful of how you – how you put that message together.  So her – I don’t – I can’t speak for Diana, but her version might have been, you know, you’ve done a really great job, we need to really keep that standard up.  You know, rather than necessarily what followed after.”[137]

  1. It was not readily apparent from this evidence just what, if anything, Ms Clarke was told to do but it was seemingly that she should be more mindful of how she provided feedback to Ms Keegan in the future.[138]  Ms Clarke’s response to this call was to confront Ms Keegan about it.
  1. Ms Keegan had experienced an anxious night, to the point where she was vomiting.[139]  She felt scared to attend work but did so.  She testified that soon after her arrival Ms Clarke asked, “so Jayne tells me I'm bullying you; I'm picking on you,” and Ms Keegan said “yes”.[140]  She testified Ms Clarke responded, “I might have” and “I can't remember.”[141]  She also claimed Ms Clarke patronised her, indicating she would have to use a child-like voice speaking to her in the future.[142]  Ms Keegan, on her account, advised she wanted to be talked to normally, not in a patronising voice.  Ms Keegan testified she told Ms Clarke all of her complaints, including not being told anything about the business, telling her about VIPs, putting her down, blaming her for everything, isolating her from the girls and threatening her job.[143]  On Ms Keegan’s account, Ms Clarke asked Ms Keegan if she wanted her job, to which Ms Keegan replied she did not.[144]  Ms Keegan alleges Ms Clarke told her to forget everything she knew and approach her job as if she knew nothing, to which she responded she just wanted a happy environment and for Ms Clarke to stop what she was doing.[145] 
  1. Ms Clarke’s account was:

“I said to her that Jayne had called and said that she felt that Gabby had felt that I was picking on her, or bullying her, and I said that was not my intention.  If that’s how she perceived what I’d said, and I apologised on a few occasions, and I asked if she was happy with the outcome, and I believe she said no she wasn’t, and I said we’d talk about it a bit later when one of the other staff members came in.[146] 

  1. When asked whether she had said anything to Ms Keegan about being sensitive Ms Clarke testified:

“I might have – yes.  I did.  I said I think she was being over sensitive, and probably because she’d just had a baby she was a bit hormonal, but I was not picking on her and I apologised again if I had given her that impression that was not my intent.”[147]

  1. Ms Clarke denied having prevailed on Ms Keegan to agree that she had not been bullied, testifying:

“I said are we good, you know, because I had apologised.  I asked if everything was okay, you know.  Do you agree that you know – are you happy with the outcome.”[148]

  1. Ms Clarke also acknowledged telling Ms Keegan she felt uncomfortable giving Ms Keegan any kind of direction or feedback or speaking authoritatively to her “as she would perceive it as bullying”.[149] 
  1. Ms Makarein’s records indicate Ms Clarke rang her that morning and told her she “did not seem to be getting through” to Ms Keegan.[150]  Her records also indicate Ms Clarke rang again at about 2 pm telling her Ms Keegan was still “holding back” but that they had reached some “understanding”.[151]
  1. Remarkably, Ms Makarein did not telephone Ms Keegan – the person who had made the complaint to her – to hear of her view of what had occurred that day with Ms Clarke.[152]  Ms Keegan testified she tried to telephone Ms Makarein that day but the number diverted to message bank.  Ms Makarein did not return her call.
  1. On Ms Keegan’s account she successfully telephoned Ms Makarein on 13 September 2010 and asked her for help, telling her of Ms Clarke’s conversation with her; a conversation which plainly did not involve an “understanding” being reached.[153]  Ms Keegan testified Ms Makarein did not further advise her what to do or what Ms Makarein would do.[154] It was obvious from Ms Keegan’s demeanour in describing Ms Makarein’s lack of support that it had upset her.  Ms Makarein agreed she received a message to call Ms Keegan and testified she did call back but she did not suggest the conversation related to Ms Clarke.[155]  I accept Ms Keegan’s account of this call.

Day Six

  1. On 14 September 2010 Ms Keegan attended work briefly but was unwell with an upper respiratory tract infection, went to the doctor and did not return to work that day.[156]

Day Seven

  1. Ms Keegan testified that on 16 September 2010 she offered to help with arranging sleepwear for a forthcoming sale in response to which Ms Clarke said “no”[157] and put her hand up in front of Ms Keegan’s face and told her to leave it alone.[158]  Ms Clarke denied putting her hand up in front of Ms Keegan’s face.[159]  On Ms Clarke’s own account she did reject Ms Keegan’s offer indicating Ms Franks was helping with the sleepwear sale.[160]  I accept she did so holding her hand in a stop sign in front of Ms Keegan’s face. 
  1. Given sleepwear was one of Ms Keegan’s specific areas of responsibility as assistant manager[161] this was obviously isolating conduct.  Ms Clarke conceded in cross-examination that Ms Franks, who had acted as assistant manager in Ms Keegan’s absence, was still being used by Ms Clarke as her de facto assistant.[162]  It was a concession consistent with Ms Keegan’s complaint she was being excluded from doing her job as assistant manager.  That she was excluded in this instance with a dictatorial gesture must have been all the more humiliating and upsetting.

Day Eight

  1. Ms Keegan recalls on 17 September 2010 neither Ms Clarke nor Ms Franks would speak to her so she just kept to herself.[163] 
  1. Ms Clarke says she spoke to Ms Keegan on this day in relation to a customer complaint about a security tag being left on an item of clothing. The security tag system was implemented while Ms Keegan was on maternity leave.[164]  Ms Clarke’s evidence was that Ms Keegan was defensive and angry when this was raised with her.[165]  Ms Keegan testified that the previous day Ms Clarke did accuse her of leaving a security tag on clothing bought by a customer and told her not to do it again.[166]  It appears Ms Keegan was troubled by the lack of latitude given by Ms Clarke for a single mistake,[167] but, on the other hand, Ms Keegan did not dispute in her evidence that she had left the security tag on.[168]  Given the inconvenience occasioned to the returning customer it was not unreasonable for Ms Clarke to raise the matter with Ms Keegan.  The difficulty by this stage was that the earlier events, which Sussan had allowed to develop, meant ordinary acts of supervision or correction would be more than ordinarily upsetting to Ms Keegan.

Day Nine

  1. On 18 September 2010 Ms Clarke was not rostered on to work, but attended at the store and engaged in conversation with other staff members. Ms Keegan alleged she was excluded from all conversation,[169] though states Ms Clarke did say goodbye to her when she left the store.[170]  Ms Clarke has no specific recollection of attending the store or who she spoke to.[171]
  1. Ms Keegan gave no evidence about how long Ms Clarke was in the store or whether she was there for a reason, such as purchasing clothes.

Day 10

  1. On 20 September 2010 Ms Clarke again was not rostered on to work. During the day Ms Franks asked Ms Keegan whether she could lend the steamer out to another store.[172]  Ms Keegan stated she told Ms Franks to ask Ms Clarke.[173] 

Day 11

  1. Ms Keegan last worked on 21 September 2010. Ms Clarke testified she spoke to both Ms Keegan and Ms Franks that day about not lending the steamer out to other stores in case it was damaged.[174]  Ms Keegan testified Ms Clarke told her in an aggressive tone not to lend out the store’s steamer, when she had not done so, and to place it in a rear room, when it had previously always been positioned to the side of the counter.[175]  I accept Ms Clarke was aggressive in her tone.  This was yet another instance of her using an innocuous issue as a means of exercising pedantic control over Ms Keegan. 
  1. Ms Keegan also testified that on this day Ms Clarke told her she had left another security tag on clothing sold to a customer. When Ms Keegan explained it had occurred when another staff member assisted her in tending to two sales at once Ms Clarke responded she would have to teach Ms Keegan selling skills and multi-tasking.[176]  Ms Keegan testified Ms Clarke told her she was trying to give her constructive criticism and asked Ms Keegan why she would not “just accept it”.[177]  Ms Clarke agrees she spoke to Ms Keegan about another customer complaint about a security tag being left on clothing.  Ms Clarke recalls saying, “Please don’t think that I’m bullying you or picking on you.  I’m just giving you some corrective feedback.”[178]  On Ms Clarke’s account Ms Keegan aggressively accused her of bullying her and harassing her and stormed off.[179]  I do not accept Ms Keegan was aggressive in her tone but have no doubt that the tone in which she expressed herself would have been highly distressed. 
  1. While it was obviously within Ms Clarke’s purview to raise an issue like this, it appears she was disinterested in the explanation for the error. That disinterest might have been of no moment in isolation but it was magnified by the bullying environment which Sussan had failed to properly address since Ms Keegan’s complaint. By this time Sussan’s failure to have taken Ms Keegan’s complaint seriously had itself contributed to Ms Keegan’s decline.
  1. The defendant’s counsel suggested this event, which was the final event before Ms Keegan left the workplace for good, typified the unremarkable nature of Ms Clarke’s behaviour as a supervisor. Counsel emphasised this was the second time Ms Keegan had mistakenly left a security tag on at inconvenience to a customer. He highlighted that while Ms Keegan did not dispute the security tag had been left on in two instances, she later told Dr Antoce, the psychiatrist engaged for the plaintiff, that she had never left security tags on. It was submitted that was a deliberate untruth designed to bolster her bullying allegations. I disagree. If that submission is correct, it is curious Ms Keegan did not advance the same untruth in her evidence. Dr Antoce noted of this topic, “[Ms Clarke] told Ms Keegan that customers were complaining about her leaving tags on clothes and emphasised that it was never the case”.[180]  Ms Keegan, when reciting the bullying events in court, would at times become obviously anxious and rush her expression and not always keep her answers precise.  These were obvious manifestations of her condition rather than indicators of dishonesty.  The prospect that Ms Keegan might have been similarly imprecise in the above response to Dr Antoce is obvious.  The precise answer might, for example, have explained she felt that she was being picked on over a non-existent pattern of leaving tags on; in only one instance had she left a tag on and on the other occasion it was joint oversight between her and another staff member. 

Non-return to work

  1. After being unsuccessful in telephoning Ms Makarein the previous night, Ms Keegan was able to raise Ms Makarein by telephone the following morning, 22 September 2010. Ms Keegan asked for help and explained things had become worse.[181]  On Ms Keegan’s account, which I accept, Ms Makarein advised her she was going to have to work it out herself with Ms Clarke.[182]  Ms Keegan said of that response, “It hurt me so much”.
  1. Ms Makarein confirmed she spoke to Ms Keegan on this day and she seemed upset.[183]  Ms Makarein gave limited evidence, stating Ms Keegan said Ms Clarke would not let her do her job, was not communicating with her and she also mentioned the security tag episode.[184]  Remarkably, on Ms Makarein’s account she suggested to Ms Keegan she needed to take some time to talk about how she felt with Ms Clarke.  Ms Makarein recalls Ms Keegan said she felt sick and was going to the doctor to which Ms Makarein said Sussan was a supportive company and they would be there to support her.[185]
  1. Ms Makarein consulted her supervisor, Sharon Sheriff, who told her to refer the matter to Sussan’s Human Resources officer because it might become a WorkCover matter.[186]
  1. Ms Keegan attended her doctor. She was tearful and distressed and reported she was being bullied at work and had “tried everything to sort it out” but nothing was helping.[187]  She reported that she was feeling suicidal.  She was too unwell to attend work.
  1. On 27 September 2010 she attended her doctor again at which time she reported she had not left the house, was feeling even worse and her mother was looking after her daughter.[188]  She reported difficulty sleeping, nightmares about work, waking up crying, anxiety attacks and feelings of worthlessness and being stripped of everything.  Ms Makarein spoke with Ms Keegan by telephone that day and was told Ms Keegan’s doctor had placed her on stress leave, that she was on medication and was to have mental health counselling.[189]  Ms Makarein also spoke by telephone with Ms Keegan’s mother during this era and was advised Ms Keegan was taking stress leave and would not be returning.[190] 

Aftermath

  1. Ms Keegan was seriously affected by her treatment in the workplace. She regressed into a reclusive existence at home. Despite receiving medical and psychiatric treatment she was unable to interact with the outside world, take care of her child or contribute to the running of the household.
  1. She no longer socialised or kept in touch with friends. She became untrusting of everyone and did not want to see anyone, including, at one point, her brothers and sisters,[191] because she was worried about what they might say and think.[192] 
  1. Her husband, Dale, would ordinarily work prolonged shifts away from Cairns, but his employer allowed him to work in Cairns for the first six months of Ms Keegan’s illness.[193]  Ms Keegan’s mother also assisted in caring for her and the child.[194] Whereas her mother used to only visit once or twice a week, she was almost always at Ms Keegan’s house to help care for her.[195] 
  1. In early 2011 Ms Keegan sliced her arm with a knife[196]  with the intention of killing herself because, as she explained, “what’s the point.  I felt I had nothing anymore.”[197]  Ms Keegan’s husband gave evidence that his behaviour changed toward Ms Keegan after that and he took the situation even more seriously[198]  and took time off work to stay home with her.[199]  This episode also made Mr Keegan fear for his daughter’s safety.[200]  Ms Keegan’s mother, Ms Jumeau, testified she became worried Ms Keegan would attempt to kill herself again so she stayed with her all the time to watch her.[201]  Ms Jumeau would sleep in the same bed as Ms Keegan, but gradually took to sleeping in the next bedroom.[202] 
  1. Ms Keegan received counselling from an occupational therapist during 2011. She encouraged Ms Keegan to undertake volunteer work at Lifeline. Ms Keegan agreed but upon arriving at the Lifeline store she was reminded of everything and needed to go home. Once home, Ms Keegan was vomiting and dizzy and went to bed. Ms Keegan said she was scared she was going to have to go back there[203] and felt the occupational therapist had been pushing her too fast.[204]
  1. Ms Keegan is hardly ever alone, but if she is it is because her mother has to leave to attend to something. Ms Jumeau gave evidence that she cooks, cleans, does the clothes washing, cares for Ms Keegan’s daughter and also has to tell Ms Keegan to shower. She needs to do this because Ms Keegan is often asleep and her medicine makes her incapable of doing these things herself.[205]
  1. Mr Keegan testified his wife would not go to the park with him and their daughter and would not go to the shops; she just spent a lot of time in bed on medication.[206]  He explained he has not left his daughter alone with Ms Keegan since she became ill.[207]  Ms Keegan’s absence of mothering of their daughter means their daughter does not call for Ms Keegan if she wakes with a nightmare or if she falls or hurts herself; she calls for Mr Keegan, if he is home, or Ms Keegan’s mother.[208]  Mr Keegan explained that if Ms Keegan were to be in charge of their daughter and their daughter had an accident he is not 100 per cent sure Ms Keegan would know what to do about it.[209] 
  1. Ms Jumeau takes her granddaughter with her if she leaves Ms Keegan’s house, because Ms Keegan is unable to care for her.[210]  Ms Keegan would rarely assist with feeding her daughter or changing her nappy and even then Ms Jumeau would supervise.[211]  Ms Jumeau said Ms Keegan missed her daughter’s first, second and third birthdays because she was sick, she just wanted to be left alone to sleep.[212]
  1. Mr Keegan said he has seen some improvement in Ms Keegan over the past 12 months, but that she is not 100 per cent. Ms Keegan will now go to the shops with her mother to get groceries, but if she sees someone she knows she needs to leave.[213]  She will now at least go to the park but just watches her daughter play on the swings and does not play with her daughter.[214]

Diagnosis

  1. The psychiatrist called by the plaintiff, Dr Antoce, examined Ms Keegan on 27 April 2012. He opined Ms Keegan had a mixed depressive anxiety disorder, that is, adjustment disorder with mixed anxiety and depressed mood, panic attacks with agoraphobia and major depressive disorder with postpartum onset augmented by an experience of bullying and harassment.[215]
  1. Dr Chung, the psychiatrist called by the defendant, examined Ms Keegan on 19 October 2012. His conclusion was Ms Keegan suffers from chronic adjustment disorder with anxiety and depressive symptoms as a result of the alleged workplace harassment and bullying.[216]  Dr Chung agreed Dr Antoce’s diagnosis of a mixed depressive anxiety disorder was reasonable and suggested there was not much to differentiate it from his diagnosis of a chronic adjustment disorder.

Discussion – Breach

  1. The point on the fourth day when Ms Keegan telephoned Ms Makarein in tears complaining Ms Clarke was bullying her was a pivot point in this case. What then unfolded assumes particular significance in the determination of this matter.
  1. Up to that point Sussan knew it had an inexperienced manager in place and should have predicted the return of a longstanding assistant manager to work under a new manager might test that manager’s ability. However, a reasonable person would not have predicted from that admittedly imperfect background that a psychiatric injury to the returning Ms Keegan was a realistic possibility. Nor was Sussan aware of supervision or correction by Ms Clarke of such an inappropriate or excessive nature as to bespeak the possibility of it causing psychiatric injury. To the contrary, Ms Makarein had been told only one day earlier by Ms Keegan that all was well. There was no reason for concern, no sign of distress. But the telephone call on day 4 from a crying Ms Keegan complaining of bullying conduct by Ms Clarke changed the equation. Minds may differ as to whether this call alone was enough to invoke knowledge of a reasonably foreseeable risk of psychiatric injury or whether that remained only a far fetched or fanciful possibility. But events did not end with the call.
  1. The call provided signs about Ms Keegan’s distressed state and Ms Clarke’s conduct which should have put Sussan on notice, and would have put a reasonable corporate entity on notice, that if the problem was not properly addressed its deleterious impact upon Ms Keegan would likely continue and likely be heightened by such a failure. Sussan’s management of Ms Keegan’s complaint therefore bore inevitably upon the foreseeability of the risk of psychiatric injury. If it did not properly address the workplace problem Ms Keegan’s degree of emotional distress would likely worsen and there would be a reasonably foreseeable risk of her suffering psychiatric injury.
  1. Sussan had a bullying and harassment policy. Compliance with its processes would not necessarily ensure mental wellbeing for an employee complaining of bullying but it would likely assist. In this instance, proper investigation would likely have determined Ms Clarke had been bullying Ms Keegan, proper disciplinary action likely would have prevented its recurrence and proper support for Ms Keegan would likely have avoided further distress to her. On the other hand, a failure by Sussan to comply with its own processes for managing bullying in the workplace – processes a complainant employee had an expectation of assistance from – would not only allow the bullying to continue, it would also likely heighten the employee’s sense of isolation and vulnerability.
  1. Sussan did not comply with its own bullying and harassment policy. Ms Keegan’s complaint was not treated seriously or impartially. Confidentiality was not respected. The complaint was not investigated or resolved. It was not referred to the People and Development Manager. Moreover, Sussan did not adopt some other appropriate approach to dealing with the complaint.
  1. No attempt at all was made to investigate the complaint. No attempt was made to even investigate the possibility the complaint was in fact as serious as its content and Ms Keegan’s distressed state suggested it was. Having taken the very difficult step for any employee of actually going over her supervisor’s head and complaining that her supervisor was bullying her, Ms Keegan was given patronising advice to “put some lippy on” and “go home to your bub”. Worse still, the following day she learnt that Sussan’s apparent method of handling her complaint about her supervisor’s bullying conduct had in effect been to leave the supervisor and her to sort the problem out between each other. This was an unambiguous indication that Sussan, through its Queensland manager Ms Makarein, was not taking Ms Keegan’s complaint seriously and that Ms Keegan was being left to fend for herself in her dealings with her supervisor.  That indication was reinforced by Ms Makarein’s dismissive responses to Ms Keegan’s further attempts to contact her for assistance. 
  1. There is no suggestion and no reason why Sussan ought not be attributed with the knowledge of its Queensland manager or responsibility for her actions or those of its store manager.
  1. A reasonable person in Sussan’s position would have realised its ongoing failure to properly address Ms Keegan’s complaint considerably heightened the prospect of Ms Keegan’s emotional distress worsening. That is not only because the bullying would likely continue, as it did, but also because Sussan’s failure would of itself distress the employee who in her time of crisis had looked to it for help. Against that background the risk of Ms Keegan’s mental state being so affected that she may suffer a psychiatric illness was reasonably foreseeable.
  1. It was a risk of which Sussan knew or ought reasonably have known. Even if psychiatric injury was arguably only an insignificant risk as at the time Ms Keegan placed her call on day 4 to Ms Makarein, Sussan’s failure to then properly address the bullying complaint ensured the risk was not insignificant. A reasonable person in Sussan’s position would have taken precaution against the risk by properly addressing the bullying complaint. A reasonable person would have taken such a precaution because, as already explained, an inept response heightened the probability a psychiatric injury may occur and any psychiatric injury has the potential to be very serious. The burden of taking the proper precaution to avoid the risk was not unreasonable, indeed through its bullying and harassment policy it was a burden Sussan represented it could meet.
  1. The plaintiff has established there was a breach of Sussan’s duty of care.

Discussion - Causation

  1. As to whether the breach caused injury, s 305D of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) relevantly provides:

“(1) A decision that a breach of duty caused particular injury comprises the following elements—

(a) the breach of duty was a necessary condition of the

occurrence of the injury (factual causation);

(b) it is appropriate for the scope of the liability of the

person in breach to extend to the injury so caused (scope of liability).

…

(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.”

  1. Dealing firstly with factual causation, there is no evidence to suggest Ms Keegan’s psychiatric injury existed prior to the bullying although there was one aspect of her history which attracted some attention by counsel for the defendant. Ms Keegan reported to the parties’ psychiatrists there had been a time in her mid-twenties when she was emotionally distressed at not having met a partner.[217]  This era of vulnerability would coincide generally with a medical record of her general practitioner in 2003 referring her for mental health counselling when she had a problem of two years standing with on and off binge eating and bulimia.[218]  It is unclear whether she actually pursued that referral and she has no recollection of having had bulimia or complaining about it to her doctor.  The psychiatrist called by the plaintiff, Dr Antoce, did not find that lack of recollection strange[219] but the defendant’s counsel suggested it indicates a lack of candour about her history.  It is unremarkable Ms Keegan may not recall a referral for counselling if she did not act upon it, but surprising she cannot recall a problem with bulimia.  It is possible the relevant note of the general practitioner, who was not called as a witness, is not entirely accurate.  Bulimia is a problem so disconnected with her present condition that there is no obvious reason for her to lie about her memory of it.  Moreover, she was candid with the psychiatrists about being depressed, in the lay sense, in her mid-twenties.  Ultimately I do not regard this oddity as materially compromising Ms Keegan’s otherwise sound credibility as a witness.
  1. A pre-existing aspect of Ms Keegan’s personality, which both psychiatrists did regard as relevant, was Ms Keegan’s need for validation from her work and her high level of concern at how others viewed her. Dr Antoce opined Ms Keegan’s feelings of failure and being left with nothing[220] after the loss of her employment was contributed to by her upbringing, which had a focus on a sense of achievement through work.[221]  Dr Antoce explained that Ms Keegan’s premorbid function was significantly dependent on her work performance and the status and recognition she received at work.  Dr Chung opined that because Ms Keegan’s sense of self is based on how other people view her, and because of her sheltered upbringing, Ms Keegan has developed a dependent and avoidant personality which has been exacerbated by her workplace situation.[222]  He explained Ms Keegan was prone to developing an adjustment disorder, due to her reliance on the opinion of others for her sense of self worth, and her work situation caused a narcissistic injury[223] which caused her to develop the adjustment disorder.  On analysis then Ms Keegan had some pre-existing personality traits which may have made her more vulnerable to suffering the psychiatric injury but they were not causative of it.
  1. Both psychiatrists opined the extent of support provided by Ms Keegan’s mother and husband had exacerbated Ms Keegan’s dependency. Dr Antoce opined that the workplace bullying was the main trigger for the onset of anxiety and depression, which was later complicated by her mother and husband’s controlling behaviour and Ms Keegan’s difficulty engaging with different care providers. [224]  She observed Ms Keegan feels she cannot live independently, but her mother living with her further impairs her ability to trust herself and have an active involvement in a satisfying marital relationship.[225]  Dr Chung explained Ms Keegan’s “reaction to the two weeks of workplace bullying is unusually severe and prolonged, which causes one to suspect a secondary gain for her dysfunction.”[226]  Dr Chung explained the secondary gain was the significant amount of nurturing and help from her mother and husband, driven by Ms Keegan’s avoidant and dependent personality.[227]   He opined Ms Keegan’s dependent and avoidant personality traits, which were not a disorder,[228] predisposed her to rely on others to care for her and became perpetuating factors for her maintaining her sick role, thereby causing the adjustment disorder to become chronic. [229]
  1. While the extensive care provided by Ms Keegan’s mother and husband may have exacerbated the extent of Ms Keegan’s dependency, it was not causative. Dr Chung agreed the bullying had been the precipitating factor[230] and observed “if it wasn’t for the bullying she probably wouldn’t be in this situation”.[231]  He explained but for the bullying Ms Keegan would have continued as a fully functioning person, provided her social support and nurturing was adequate and appropriate to her needs.[232]  That proviso is of no relevance to the issue of causation but will have some relevance in identifying an appropriate discount for the vicissitudes of life in assessing quantum. 
  1. Dr Antoce also regarded the experience of workplace bullying as causative of her psychiatric injury.[233] It is noteworthy that Dr Antoce regarded part of that experience as having included not only Ms Clarke’s conduct but also the lack of support Ms Keegan received from work colleagues and Ms Makarein.[234]  Sussan’s counsel emphasised the contribution of other staff in the store to Ms Keegan’s condition.  However, the fact that the other shop staff were not associating much with Ms Keegan at work is readily explained by probable awareness on their part that Ms Keegan was not well regarded by Ms Clarke.  The only evidence of anyone actively driving an atmosphere of isolation towards Ms Keegan in the workplace is the evidence of Ms Clarke’s conduct.  The important point about the above evidence is that the lack of support by Ms Makarein was itself a causative factor.  As Dr Antoce observed of Ms Makarein’s lack of support for Ms Keegan, “the fact that the Queensland manager didn’t particularly support her contributed to her feeling abandoned, under attack”.[235] 
  1. It follows that the defendant’s breach of duty was a necessary condition of the occurrence of the injury.
  1. As to whether it is appropriate for the scope of Sussan’s liability to extend to Ms Keegan’s psychiatric injury, responsibility for the injury should be imposed on Sussan. Its breach was as a matter of fact causative of the injury. The impact of the injury may have been exacerbated by the unwittingly overly protective support of Ms Keegan’s mother and husband but their attempts to support Ms Keegan would never have been necessary had Sussan not in the first place occasioned what was, on any view, a serious injury. The fact that by reason of Ms Keegan’s personality traits the support of Ms Keegan’s mother and husband may have slowed rather than enhanced the progress of Ms Keegan’s potential recovery from her injury does not make it inappropriate to extend the scope of liability to the defendant.
  1. It follows I find the defendant liable.

Quantum

General Damages

  1. Ms Keegan’s life as she knew it was shattered by her employer’s breach. She felt humiliated, helpless and betrayed. She was physically ill, had difficulty sleeping and had nightmares. She felt suicidal and lost all enjoyment of life. She experienced difficulty in going out in public and in caring for herself and her household. She was unable to care for her child and was unable to function normally as a mother and wife. Dr Chung summed up her loss in observing, “As a result of the workplace unpleasantness she regressed significantly to the point where she had been unable to function in her role as a mother, wife and employee.”[236]  Even allowing for a conclusion that her functioning will eventually improve, the pain, suffering and loss of amenity of life occasioned to Ms Keegan by her employer’s breach was very significant.
  1. When assessing general damages a court must make an assessment of the injury scale value (“ISV”) of the relevant injuries[237] and calculate the damages pursuant to that ISV in accordance with the formulae set out in the Workers’ Compensation and Rehabilitation Regulation 2003 (Qld), as applied in the period when the relevant injuries arose.[238]  The relevant ranges of ISVs are set out in sch 9 of that regulation.
  1. The ranges for mental disorders are determined by reference to a psychiatric impairment rating scale (“PIRS”). The parties agree Ms Keegan’s PIRS rating falls within the moderate impairment range of 11 per cent to 30 per cent which is the range allocated for a “serious mental disorder” in the schedule.[239]  The schedule ascribes an ISV range of 11 to 40 for a serious mental disorder. 
  1. The plaintiff’s expert psychiatrist, Dr Antoce, opined the appropriate PIRS rating is 26 per cent.[240]  The defendant’s expert, Dr Chung, opined an even higher PIRS rating of 28 per cent is appropriate.[241] 
  1. Curiously, Dr Chung ascribed the contribution of Sussan’s breach to that assessment as being only five to 10 per cent, with the balance being attributable to her personality traits operating in conjunction with the unwittingly overprotective support of her mother and husband.[242]  Ms Keegan’s personality traits are not what caused her injury.  They may have made her more vulnerable than the average person would be to suffering such an injury and more vulnerable to unwittingly permitting the support of her mother and husband to perpetuate her suffering and impair her recovery from the injury, but it was Sussan’s breach which caused the injury.  I do not accept, and the defendant’s counsel properly did not submit, that Dr Chung’s PIRS rating should be reduced because of his views about causal contribution.  
  1. The plaintiff submits the maximum ISV for a serious mental disorder, namely 40, should be adopted.[243]  That would translate to an award of $80,100.[244] The defendant submits an ISV of 35 would be appropriate, equating to an award of $65,950.[245] 
  1. In a range of 11 to 30 per cent, PIRS ratings of either 26 or 28 per cent are near the upper end of the range for a serious mental disorder. The corresponding ISV range is 11 to 40 per cent. I would assess the appropriate ISV as near the upper end of that range, namely, 37 per cent. 
  1. Applying the calculation provisions of the Workers’ Compensation and Rehabilitation Regulation 2003 (Qld) an ISV of 37 per cent gives rise to an award for general damages of $71,610.
  1. Interest cannot be ordered on an award for general damages.[246]

 

Past Economic Loss

  1. The defendant submits there should be a 30 per cent discount of any award for past economic loss because Ms Keegan’s condition has been exacerbated by the extent of support provided by Ms Keegan’s mother and husband, thus hampering her prospect of returning to work. As already explained, the way in which that support has potentially prolonged the impact of and recovery from Ms Keegan’s injury is a product of her personality traits. It is not her fault or any result of a failure to mitigate her loss that her condition and potential recovery from it has not progressed as well as it may have for a person without those traits or for a person who is in some way mentally stronger or more determined. Now that the complicating feature of potentially over-protective support by Ms Keegan’s mother and husband has been identified, it will be appropriate to infer that aspect will be better addressed in the future in arriving at a conclusion about the prospect of and timing of Ms Keegan’s recovery. However, that feature is not itself causative of Ms Keegan’s loss and it is not appropriate to discount her loss to date by reason of it.
  1. It is common ground that at the time of suffering her psychiatric injury Ms Keegan was earning $582.70 net per week as assistant manager.  It was not submitted that had she continued working this figure would have materially altered between then and now. But for her injury it was submitted she would have continued working.  It is likely she would have continued working.
  1. Ms Keegan therefore lost 185 weeks of income at $582.70 a week, which equates to $107,799.50. Lost superannuation at nine per cent on that amount equates to $9,701.95, giving a total for past economic loss of $117,501.45.

Interest on Past Economic Loss

  1. The parties agree the Workcover refund to Ms Keegan was $66,131.57, thus reducing that part of the award for past economic loss on which interest ought to be awarded to $51,369.88. Pursuant to s 306N of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) I would allow interest on $51,369.88 of past economic loss at the rate of 1.7 per cent per annum (being one half the 10 year bond rate of 3.4 per cent).
  1. The award for interest on past economic loss over 3.6 years is therefore $3,143.84.

Future Economic Loss

  1. The plaintiff submits she would, but for the injury, have retained her job. That is likely. It was also submitted she probably would have been promoted in due course to manager. Ms Keegan’s evidence was she would have taken the job of manager if it was offered but she was happy being assistant manager.[247]  That possibility can be adequately catered for in due course arriving at the appropriate discount for the vicissitudes of life. 
  1. The critical issue in the assessment of future economic loss is whether and, if so, when Ms Keegan will be able to return to full time work in the future.
  1. Occupational therapist Helen Coles listed a variety of deficiencies in Ms Keegan’s state at the time of her examination on 27 March 2012. She noted Ms Keegan was deficient in her functional capacities and was not competent to undertake personal activities of daily living, including home-making, engaging in realistic employment, and meeting the developmental needs of her child.[248]  Ms Coles opined Ms Keegan would need to return incrementally to a more efficient level of functioning generally to resume the regular requirements of home-making, employment and parenting.[249]
  1. Dr Chung and Dr Antoce both opined Ms Keegan’s prognosis was guarded.
  1. Dr Chung did not expect there would be further degeneration or deterioration in the future[250] but opined her present level of impairment was likely to be perpetuated by the level of comfort she has developed from being cared for and nurtured by her mother and husband.[251]  While he thought significant improvement in the near future was unlikely, it is noteworthy Ms Keegan advised Dr Chung that her concentration, memory, motivation and energy levels were improving with medication.  She also stated she was not as tearful as previously and her mood had improved significantly and she did experience occasional good days.[252]  Dr Chung opined Ms Keegan would benefit from further medication and psychotherapy focussing on her developing a more secure sense of self.[253] 
  1. Dr Antoce opined in her report of 27 April 2012 that Ms Keegan was likely to remain affected in her ability to work for a period of at least six months and that any return to work would be marked by significant anxiety and impaired self-esteem.[254]  Although her mother and husband each gave evidence of some gradual improvement in her state having occurred, Ms Keegan was not yet in a condition to return to work.  As to when Ms Keegan might be at a stage to attempt a return to work, Dr Antoce opined:

“[S]he might…take anywhere from a year to longer before she will be able to attempt a return to work.  And…at that point she would probably take at least six months of part time; she might or might not be successful; she might take time off; she might not succeed – I don’t know.  It’s highly speculative, and based on the information at hand it is unlikely that Ms Keegan will be in a position of returning to full time work in the near future.”[255]

  1. Dr Antoce’s suggested future treatment for Ms Keegan includes psychiatric treatment, psychological counselling and an assessment regarding the relationship between Ms Keegan and her mother with a view to allowing Ms Keegan to return to some independent function in a marital role and occupational role. Additionally, she opined Ms Keegan should attempt to engage in a group day programme to aid in re-establishing her social interactive ability, sense of self and sense of independent function.[256]
  1. The plaintiff’s counsel submits for an award premised on Ms Keegan never being able to return to work, whereas the defendant’s counsel submits a period of two years ought be allowed for her to return to full time work.
  1. While Ms Keegan’s prognosis is guarded, the evidence that there has been some slow but gradual improvement in Ms Keegan gives cause for optimism. Further, the expert evidence generally suggests that additional professional treatment and counselling will aid her recovery and capacity.
  1. The unwittingly excessive support of Ms Keegan’s mother and husband is a feature which has adversely affected the potential progress of Ms Keegan’s recovery. Now that it has been identified as an issue and can be addressed in a more informed way, its influence in hampering recovery can be expected to dwindle. Another feature likely to bear on Ms Keegan’s progress in the aftermath of judgment is the likely positive impact of judgment upon Ms Keegan. Given the evidence of Ms Keegan’s personality traits, the vindication this judgment will bring Ms Keegan in acknowledging the wrong done to her will likely enhance her capacity to now more productively confront the recovery process and her re-engagement in the workforce.
  1. All of these considerations suggest Ms Keegan will recover sufficiently to be able to re-enter the workforce within the next few years.
  1. Accepting Dr Antoce’s view that a staggered return to work – part time then full time – would be appropriate, I infer it is likely Ms Keegan would be sufficiently recovered to be able to undertake paid part time work within one year and full time work, in an income earning position generally commensurate with her former position, within two years.
  1. However, it cannot be assumed Ms Keegan would easily secure a part time or full time position once she is sufficiently recovered to be able to return to work. Her long time off work and the reason for it is likely to make her materially less competitive in the employment market than before her injury. She may therefore take longer than might ordinarily be expected to secure employment once she is able to work. Because of that difficulty I would allow her a further six and twelve months respectively and infer she would secure part time work within one and half years and full time work within three years. The mean of that timeframe, namely two years and three months or 2.25 years, provides an effective period of future economic loss if referenced to full time income (on the premise 18 months pay as a part time employee would provide the equivalent of about nine months income as a full time employee).
  1. Reference to Ms Keegan’s former full time income provides assistance in quantifying her future economic loss although it is the loss of earning capacity rather than the loss of earnings which I am endeavouring to address.[257]  Adopting a loss of net weekly earnings of $582.70 per week for two and a-quarter years using the five per cent tables (multiplier 111), provides a total of $64,679.70. 
  1. The defendant submits there ought be a particularly significant discount for contingencies because of the prospect that in the ordinary course of Ms Keegan’s life her personality traits left her at a more significant risk than normal of suffering a injury of the present kind. The evidence does suggest Ms Keegan was likely more susceptible than the average person to suffering a psychiatric injury as a result of the ordinary exigencies of life, however, the period to which the forecast future economic loss relates is short. I would adopt a discount of 15 per cent for the vicissitudes of life to assess future economic loss at $54,977.75.

Future Superannuation

  1. The plaintiff claims future superannuation assessed at nine per cent of future economic loss. That gives rise to an award of $4,948. 

Special Damages

  1. The defendant concedes an award of special damages in the sum of $27,621.32. 

Interest on Special Damages

  1. The defendant concedes interest on $7,539.73, special damages paid personally, at five per cent in the amount of $1,195.[258]

Future Expenses

  1. Ms Keegan submits for an award of $429,520 for future monitoring for 10 years. The monitoring is claimed at a commercial rate of $25 per hour or $1,750 per week.[259]  The plaintiff emphasised Ms Coles’ report wherein she opined Ms Keegan was then not competent to undertake personal daily activities of living, home-making duties and sufficient parenting duties and was subject to 24 hour care and assistance by her mother “for the monitoring of her safety, personal well-being and basic sustenance.[260]  Ms Coles’ supplementary report asserted Ms Keegan required five to 10 hours care per day additional to time ordinarily spent in her husband’s presence.  She explained 24 hour a day monitoring would be required if psychiatric opinion was that she not be left unattended.[261]  No psychiatric opinion to that effect was adduced.
  1. It is unlikely that Ms Keegan will need monitoring for any prolonged period into the future given her gradual improvement. Observation of her is in any event an incident of the care otherwise provided to her and monitoring is therefore difficult to justify as a separate compensable service.
  1. The attempt to characterise monitoring as a form of purportedly compensable care is motivated by the prohibitions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) in s 306F on damages for gratuitous services of substantially the same type as had usually been performed by the injured worker prior to sustaining the injury and in s 306H on damages for gratuitous services not required or provided prior to the injury.
  1. The relevant definitions of gratuitous services and services are contained in s 306D, which relevantly provides:

“gratuitous services means services, other than paid services, that are provided to a worker by a member of the worker’s family or household, or by a friend of the worker.

services means services of a domestic, nursing or caring nature.

Examples of services—

• assisting with personal hygiene needs

• changing bandages

• cleaning

• cooking

• dressing wounds

• gardening

• housekeeping

• mowing”

  1. The examples given in the definition of services do not expressly include monitoring the worker, but it is difficult to apprehend how observing Ms Keegan to ensure she takes care of herself and her child and does not harm herself or her child is not a service of a “nursing or caring nature”. Nursing may involve observation. More relevantly though, observing a psychiatrically injured person to ensure the person and her child are not endangered or lacking in care because of the injury is quintessentially a service of a caring nature. It is a service which was either not required before the injury or was a service which Ms Keegan effectively performed for herself. Either way, it is a form of gratuitous service and thus not compensable.
  1. The defendant accepts the amount of $20,000 claimed by the plaintiff for future expenses as it relates to psychiatric care and medication, but submits the court should discount the amount by 50 per cent having regard to the likelihood of the plaintiff sustaining injury in any event.[262]  Consistently with the discount earlier adopted I would adopt a discount of 15 per cent. 
  1. That gives rise to an award for future expenses of $17,000.

Fox v Wood

The defendant agrees the Fox v Wood component to be awarded is $5,904.00.

Quantum Summary

General Damages$   71,610.00
Past Economic Loss$ 117,501.45
Interest thereon$     3,143.84
Future Economic Loss$   54,977.75
Future Superannuation$     4,948.00
Special Damages$   27,621.32
Interest thereon$     1,195.00
Future Expenses$   17,000.00
Fox v Wood$     5,904.00
Sub Total$ 303,901.36
Less Workcover refund$   66,131.57
Total (rounded)$ 237,770.00

Orders

  1. My orders are:
  1. Judgment for the plaintiff in the sum of $237,770;
  1. I will hear the parties as to costs.

Footnotes

[1] T1-28 L17.

[2] T1-33 L34.

[3] T2-59 L33.

[4] T1-37 L15.

[5] T1-44 L34.

[6] Statement of Claim (“SOC”) [11].

[7] SOC [13].

[8] As explained by McHugh J in Tame v New South Wales (2002) 211 CLR 317, 365.

[9] Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, 53.

[10] Ibid.

[11] Ibid, 57; Tame v New South Wales (2002) 211 CLR 317.

[12] Tame v New South Wales (2002) 211 CLR 317.

[13] (2005) 222 CLR 44.

[14] Ibid, 57.

[15] Wyong Shire Council v Shirt (1980) 146 CLR 40, 46.

[16] (2007) 71 NSWLR 471, 478.

[17] Wyong Shire Council v Shirt (1980) 146 CLR 40, 47.

[18] Vairy v Wyong Shire Council (2005) 223 CLR 422.

[19] Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, 477.

[20] (2005) 222 CLR 44, 57.

[21] T1-9; T1-58 L38 – T1-59 L15.

[22] T1-11 L25.

[23] T2-11 L33.

[24] T2-5 L37.

[25] T2-5 LL42-45.

[26] T4-46 L18.

[27] T4-47 L8.

[28] T1-13 L2.

[29] T1-11 L24.

[30] Ex 2.

[31] T1-11 L44.

[32] Ex 3.

[33] Ex 3.

[34] T1-13 L22.

[35] T2-72 L25-29.

[36] T2-7 LL33-38.

[37] T2-56 L13-17.

[38] T4-54 LL38-45.

[39] T4-55 LL7-16.

[40] T2-8 LL18-20.

[41] T2-57 L3-4.

[42] T1-96 LL35-44; T2-56 L45.

[43] T2-13 L22.

[44] T1-112 L20.

[45] T2-61 LL10-27; T2-72 L22.

[46] T2-9 LL18-19.

[47] T2-78 L5.

[48] T2-11 LL5-27.

[49] T1-111 L25.

[50] T1-15 L14-18.

[51] T1-15 L32.

[52] T1-15 L37-43.

[53] T1-16 L6-22.

[54] T1-16 L24-27.

[55] T1-16 L29-30; T1-63 L13; T1-99 L29.

[56] T1-16 L32-33.

[57] T1-17 L8-33.

[58] T1-17 L35.

[59] T1-67 L20.

[60] T1-98 L16.

[61] T1-67 L21.

[62] T1-18 L1-17.

[63] T1-116 L23.

[64] T1-115 L28.

[65] T1-63 L24.

[66] T1-63 L26.

[67] T1-97 LL38-45.

[68] T1-64 L3.

[69] T1-99 L39.

[70] T1-118 L41.

[71] T1-108 L41.

[72] T4-48 L26.

[73] T1-108 L46; T1-111 L15; T1-111 L43.

[74] T1-20 L40.

[75] T1-21 L7.

[76] T1-22 L40.

[77] T1-21 LL13-25; T1-24 L2; T1-26 L27.

[78] T1-21 LL31-40.

[79] T1-100 LL1-5.

[80] T1-101 L2.

[81] T1-125 L46.

[82] T1-100 LL30-36.

[83] T1-124 L30.

[84] T1-21 L45.

[85] T1-21 L46; T1-22 L5.

[86] T1-100 L20.

[87] T1-23 L19.

[88] T1-100 L39.

[89] T1-23 L21.

[90] T1-23 L39.

[91] T1-23 L41-43.

[92] T1-101 L2.

[93] T1-24 L15.

[94] T1-25 L36.

[95] T1-27 L15.

[96] T2-58 L5. 

[97] T1-78 L5.

[98] T2-58 L20. 

[99] T1-28 L14-19.

[100] T1-133 L24.

[101] T1-32 L10.

[102] T1-135 L11.

[103] T1-135 L11.

[104] T1-30 L18.

[105] T1-102 L1.

[106] T1-102 L9.

[107] T1-31 L14.

[108] T1-30 LL25-35.

[109] T1-31 L26.

[110] T1-103 L1.

[111] T1-27 L31.

[112] T132 L43 – T1-33 L3.

[113] T1-134 L15.

[114] T1-33 L7.

[115] T1-102 LL23-27.

[116] T1-33 LL19-20.

[117] T1-102 LL34-36.

[118] T1-33 L16.

[119] T1-135 L42.

[120] T1-33 LL35-38.

[121] T1-33 LL33-45.

[122] T1-34 LL4-11.

[123] T1-34 L26.

[124] Ex 8; T2-57 L10; T2-70 L17.

[125] T2-63 L35.

[126] Ex 10 p 3.

[127] T2-68 L33.

[128] Ex 10 p 3 right margin.

[129] T2-71 L42.

[130] T2-66 LL30-36.

[131] T1-145 L28.

[132] T2-58 L37 – T2-59 L19.

[133] T2-70 L34.

[134] T3-42 L39.

[135] T1-103 L41-45.

[136] T1-145 L28.

[137] T2-59 L29.

[138] T2-59 L40.

[139] T1-34 L46.

[140] T1-35 L40.

[141] T1-35 L43.

[142] T1-36 L5.

[143] T1-36 LL21-29.

[144] T1-36 L33.

[145] T1-36 L45.

[146] T1-104 L10.

[147] T1-104 L18.

[148] T1-104 L29.

[149] T1-104 L36; T1-145 L40.

[150] T3-43 L13.

[151] T3-43 L44.

[152] T3-44 L10.

[153] T1-37 L15.

[154] T1-37 L17; T3-46 L3.

[155] T2-60 LL5-13.

[156] T1-83 L35.

[157] T1-39 L34.

[158] T1-39 L27; T1-40 L6.

[159] T1-105 L33.

[160] T1-147 L26.

[161] T3-26 L39.

[162] T1-147 L34.

[163] T1-41 L1.

[164] T1-105 L42.

[165] T1-105 L40 – T1-106 L1.

[166] T1-37 L30.

[167] T1-37 L30.

[168] T1-87 L13.

[169] T1-41 L17.

[170] T1-41 L30.

[171] T1-106 L5-11.

[172] T1-41 L45.

[173] T1-42 L1.

[174] T1-106 L35.

[175] T1-42 L37 – T1-43 L17; T1-95 L10.

[176] T1-44 LL1-15.

[177] T1-87 L38.

[178] T1-107 L2.

[179] T1-107 LL12-26.

[180] Ex 1 tab 1 p 5.

[181] T1-44 LL29-35.

[182] T1-44 L29-35.

[183] T2-61 L30-32.

[184] T2-61 L34.

[185] T2-61 L37 – T2-62 L3.

[186] T3-29 L12; T3-30 L19.

[187] Ex 1 tab 5 pp 3, 4.

[188] Ex 1 tab 5 p 4.

[189] T3-33 L30.

[190] T2-62 L5.

[191] T1-46 L41.

[192] T1-47 L27.

[193] T2-43 LL12-14.

[194] T2-29 L2.

[195] T1-46 L21; T2-29 LL31-34.

[196] T1-46 LL16-20.

[197] T1-46 L32.

[198] T2-47 L4.

[199] T1-47 LL39-47.

[200] T2-47 LL30-34.

[201] T2-35 L18.

[202] T2-35 LL37-38

[203] T1-56 LL23-41.

[204] Ex 1 tab 2 p 3.

[205] T2-30 LL24-35.

[206] T2-45 L20.

[207] T2-49 L6.

[208] T2-49 LL5-10.

[209] T2-49 LL37-40.

[210] T1-49 LL13-23.

[211] T2-32 L20.

[212] T2-32 LL31-39.

[213] T1-50 LL10-16.

[214] T2-48 LL20-42.

[215] Ex 1 tab 1 p 20.

[216] Ex 9A p 9.

[217] T1-90 LL5-16; Ex 9A pp 8, 9

[218] Ex 1 tab 8 p 9.

[219] T3-13 L14.

[220] Ex 1 tab 1 p 21.

[221] Ex 1 tab 1 p 21.

[222] Ex 9A p 11.

[223] Ex 9B p 2.

[224] Ex 1 tab 1 p 24.

[225] Ex 1 tab 1 p 25.

[226] Ex 9A p 10.

[227] Ex 9A p 11.

[228] T3-61 L33.

[229] Ex 9B p 2; T3-62 L7; T3-69 L40.

[230] T3-63 L40.

[231] T3-70 L14.

[232] T3-64 L9.

[233] Ex1 tab 1 p 22.

[234] T3-15 L33.

[235] T3-17 L7.

[236] Ex 9A p 9.

[237] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 306O.

[238] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 306P.

[239] Outline of Submissions on Behalf of the Defendant [186]; Submissions of the Plaintiff [70].

[240] Ex 1 tab 1 p 28.

[241] Ex 9C.

[242] Ex 9C; T3-69.

[243] Submissions of the Plaintiff [75].

[244] Submissions of the Plaintiff [72].

[245] Outline of Submissions on Behalf of the Defendant [187].

[246] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 306N.

[247] T1-51 L10.

[248] Ex 1 tab 2 p 17 [3]-[6].

[249] Ex 1 tab 2 p 17 [8].

[250] Ex 9A p 12.

[251] Ex 9A p 11.

[252] Ex 9A p 5.

[253] Ex 9A p 11.

[254] Ex 1 tab 1 p 26.

[255] T3-24 L35.

[256] Ex 1 tab 1 p 26.

[257] Medlin v State Government Insurance Commission (1995) 182 CLR 1, 4, 16.

[258] Outline of Submissions on Behalf of the Defendant [205].

[259] Submissions of the Plaintiff [93].

[260] Submissions of the Plaintiff [86]; Ex 1 tab 2 p 17.

[261] Ex 1 tab 3 p 1.

[262] Outline of Submissions on Behalf of the Defendant [206].

Close

Editorial Notes

  • Published Case Name:

    Keegan v Sussan Corporation (Aust) Pty Ltd

  • Shortened Case Name:

    Keegan v Sussan Corporation (Aust) Pty Ltd

  • MNC:

    [2014] QSC 64

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    07 Apr 2014

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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Medlin v State Government Insurance Commission (1995) 182 CLR 1
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Tame v New South Wales (2002) 211 CLR 317
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Wyong Shire Council v Shirt (1980) 146 C.L. R. 40
3 citations
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Cite 2 - (1980) 146 C.L. R. 40
Cite 3 - (1980) 146 C.L. R. 40

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1

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