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Ackers v Cairns Regional Council[2021] QSC 342

Ackers v Cairns Regional Council[2021] QSC 342

SUPREME COURT OF QUEENSLAND

CITATION:

Ackers v Cairns Regional Council [2021] QSC 342

PARTIES:

PAUL ANDREW ACKERS

(plaintiff)

v

CAIRNS REGIONAL COUNCIL

ABN 24 310 025 910

(defendant)

FILE NO/S:

SC No 636 of 2018

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

15 December 2021

DELIVERED AT:

Cairns

HEARING DATES:

1, 2, 3, 4, 5, 8, 9, 10 February 2021; 19, 20, 21, 22, 23, 26, 27, 28, 29, 30 July 2021

JUDGE:

Henry J

ORDERS:

  1. Judgment for the plaintiff in the sum of $1,099,132.69.
  2. I will hear the parties as to costs, in the event they are not earlier agreed, at 9.15 am on 2 February 2022 (parties having leave to appear by telephone or videolink).

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – FACTORS DETERMINING EXISTENCE OF DUTY – REASONABLE FORSEEABILITY – where the plaintiff was employed by the defendant as supervisor of its payroll unit – where the plaintiff had a pre-existing persistent depressive disorder – where the payroll unit was left inadequately staffed for some months – where the plaintiff was required to take on the duties of staff who were on sick leave – where the plaintiff worked excessive hours to keep the payroll unit afloat – where the plaintiff began to show signs in the workplace of psychological distress – where the Council investigated a Union complaint against the plaintiff – where the plaintiff exhibited further signs of psychological distress in the workplace – where in response to errors made by the payroll unit, Council imposed a Performance Improvement Action Plan upon the plaintiff – whether it was reasonably foreseeable to the Council that the plaintiff may suffer a psychiatric injury

TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – where the plaintiff was employed by the defendant as supervisor of its payroll unit – where the plaintiff had a pre-existing persistent depressive disorder – where the payroll unit was left inadequately staffed for some months – where the plaintiff was required to take on the duties of staff who were on sick leave – where the plaintiff worked excessive hours to keep the payroll unit afloat – where the Council investigated a Union complaint against the plaintiff – where the Council had corporate knowledge of the plaintiff having shown signs of psychological distress in the workplace – where in response to errors made by the payroll unit, Council imposed a Performance Improvement Action Plan upon the plaintiff – whether the Council breached its duty to take all reasonable steps to avoid unnecessarily exposing the plaintiff to a foreseeable risk of psychiatric injury

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – where the plaintiff was employed by the defendant as supervisor of its payroll unit – where the plaintiff had a pre-existing persistent depressive disorder – where the payroll unit was left inadequately staffed for some months – where the plaintiff was required to take on the duties of staff who were on sick leave – where the plaintiff worked excessive hours to keep the payroll unit afloat – where the Council investigated a Union complaint against the plaintiff – where the Council had corporate knowledge of the plaintiff having shown signs of psychological distress in the workplace – where in response to errors made by the payroll unit, Council imposed a Performance Improvement Action Plan upon the plaintiff – whether the Council is causally responsible for the plaintiff’s psychiatric injury

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – GENERAL DAMAGES – ECONOMIC LOSS – SPECIAL DAMAGES – where the plaintiff has not worked since the date of the injury – where the plaintiff already had a pre-existing persistent depressive disorder – where the plaintiff developed more severe depression, anxiety, PTSD symptoms, a severe stutter and a tremor in his right arm – where there was some improvement upon the severity of the plaintiff’s symptoms up until 2018 but little substantial improvement since this plateauing – whether and to what extent the plaintiff’s condition will improve after the litigation concludes – what measure of damages for general damages, special damages, Wilson v McLeay damages and past and future economic loss is appropriate in the circumstances

Civil Proceedings Act 2011 (Qld), s 58

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s. 6, s 306, s 305B, s 305D, s 306J, s 306L, s 306O, s 306P

Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), s 129, s 130, sch 9, sch 10, sch 11, sch 12

Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12, distinguished

Hayes v State of Queensland [2017] 1 Qd R 337, applied

Hegarty v Queensland Ambulance Service [2007] QCA 366, applied

Jones v Dunkel (1959) 101 CLR 298, cited

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

McAndrew v AAI Limited [2013] QSC 290, applied

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

New South Wales v Lepore (2003) 212 CLR 511, cited

Robertson v State of Queensland & Anor [2021] QCA 92, cited

Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486, applied

State of New South Wales v Paige (2002) 60 NSWLR 371, distinguished

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

Sullivan v Moody (2001) 207 CLR 562, applied

Wilson v McLeay (1961) 106 CLR 523, applied

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

COUNSEL:

S D Anderson for the plaintiff

R Morton for the defendant

SOLICITORS:

Slater & Gordon Lawyers for the plaintiff

Jensen McConaghy Lawyers for the defendant

Contents

PART A: LIABILITY7

The nature of the case advanced7

Introduction to events in the workplace9

Council approves of Mr Ackers but three of his staff do not14

An exodus of staff creates a heightened and challenging workload15

No let-up in other managerial obligations19

A need to work longer hours21

Long work hours of work a breach in itself?22

Corporate knowledge of stress on Ackers accumulates29

Union complaints32

No breach re handling of Union complaint34

Corporate knowledge of a change in Ackers in the second half of June40

Foreseeable risk of psychiatric injury from 24 June 2015?42

Shaking at interviews 1 July 201543

Events following Ackers’ return to work in early July45

Foreseeable risk of psychiatric injury from 9 July 201552

Duty53

Ackers targeted56

Findings from Payroll Review Document57

Andrejic uses Findings from Payroll Review document to target Ackers63

Performance Improvement Action Plan implemented66

Non-compliance with administrative instruction70

Duty and breach73

Breach unassuaged by ensuing review meetings76

The final throes79

Causation81

PART B: QUANTUM89

Prognosis89

General damages102

Statutory process for assessing loss of earnings106

Past economic loss106

Interest on past economic loss107

Past special damages108

Interest on past special damages108

Wilson v McLeay damages108

Future economic loss109

Future special damages111

Conclusion re total damages113

PART C: ORDERS113

  1. [1]
    Mr Ackers claims about $1.3 million in damages resulting from a psychiatric injury said to have been caused by the negligence and or breach of contract of Cairns Regional Council (“Council”) while he was employed as the supervisor of its payroll unit.
  2. [2]
    It is common ground Mr Ackers has a depressive illness which worsened in connection with events in the workplace but Council’s liability for it, its long-term severity and many associated issues were disputed during a trial lasting almost four weeks.
  3. [3]
    Mr Ackers alleges Council owed him a duty to take reasonable care to avoid unnecessarily exposing him to a foreseeable risk of psychiatric injury. He alleges his injury was caused by Council’s breach of that duty in connection with three main controversies, namely:
  • Council’s investigation of a Union complaint against Mr Ackers;
  • Mr Ackers’ allegedly excessive hours of work; and
  • Council’s imposition of a Performance Improvement Action Plan on Mr Ackers.
  1. [4]
    As will be seen, the first of those controversies did not manifest any breach but did have an emotional impact on Mr Ackers. The context in which the other two arise is that the payroll unit lost three experienced staff in March/April 2015. This had the consequence that for some months the unit was without sufficient adequately skilled staff, so that Mr Ackers bore an unusually demanding workload and there was a higher than usual risk of errors occurring in the payroll unit. When that risk manifested, with the discovery of a variety of apparent errors at the end of the financial year in mid-2015, the blame was pinned on Mr Ackers, rather than the extraordinary work pressure which had been on him and his unit, by subjecting him to a formal Performance Improvement Action Plan. A person of greater fortitude might have coped with that treatment but, as Council knew, Mr Ackers was already in psychological distress by this time. His state worsened. He eventually went on sick leave and has not resumed work because of his psychiatric condition.
  2. [5]
    These reasons find the long hours worked by Mr Ackers, while extremely demanding, were not such as to alone make psychiatric injury to a person of ordinary fortitude reasonably foreseeable. However, the accumulation of corporate knowledge of that workload, in combination with corporate knowledge of signs Mr Ackers exhibited of psychological distress, did make risk of such injury reasonably foreseeable by the era in which it targeted him with the Performance Improvement Action Plan.
  3. [6]
    Against that background these reasons conclude there was a breach of Council’s duty of care which was causative of a major depressive illness. While these reasons conclude Mr Ackers’ prognosis is not quite as bleak as was urged on his behalf, his illness has and will continue to cause him significant loss, for which a substantial award of damages will be made.

PART A: LIABILITY

The nature of the case advanced

Reliance on signs given and nature of work

  1. [7]
    The nature and scope of the duty of care owed by an employer to an employee is not generic and will vary, depending upon what the employer or those for whom the employer is vicariously liable, knows or should reasonably have foreseen regarding the particular employee in question.[1] The generic or ordinary steps which an employer may take in exercising reasonable care to avoid injury to employees will, in the normal course, assume normal fortitude on the part of the employee.
  2. [8]
    A greater degree of care may be required where the employer imposes a workload upon an employee which, by its nature, will be abnormally stressful or where an employee is exhibiting signs of psychological distress. Hence in Koehler v Cerebos (Australia) Ltd[2] the plurality observed:

“The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. … [T]hat invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.”[3] (emphasis added)

  1. [9]
    In the present case Mr Ackers relies upon the allegedly extreme demands of his work and the signs he allegedly gave in the workplace of psychological distress. He contends those features made psychiatric injury to him reasonably foreseeable and that his employer had a duty to take reasonable care to avoid such injury.
  2. [10]
    The plaintiff contends the defendant breached that duty, thus causing his psychiatric injury, by the way in which it dealt with the Union complaint against him, caused Mr Ackers to work allegedly excessive hours and imposed the Performance Improvement Action Plan on him.
  3. [11]
    In purporting to attribute corporate knowledge of the nature and extent of work being done by Mr Ackers and signs he was giving of emotional distress, Mr Ackers’ case pleaded reliance on the knowledge of Council’s servants in its human resources branch, Christine Posgate and Rachel Faithful,[4] and in positions of line managerial responsibility for Mr Ackers, namely his immediate supervisor Mandy Wise, who was the Coordinator of the Shared Services Branch, and above her the Chief Financial Officer, John Andrejic. It was not disputed, and I accept, that their knowledge of such matters equated to corporate knowledge, that is, the knowledge of Council.

Duty in contract

  1. [12]
    The duties Mr Ackers alleges he was owed by Council are pleaded in contract at paragraph 4 of the amended statement of claim as follows:

“4. It was an implied term of the contract of employment between the Plaintiff and the Defendant that the Defendant would:

  1. (a)
    do all that was reasonably practicable to provide a reasonably safe working environment;
  1. (b)
    comply with each of its usual processes and administrative instructions and procedures;

(i)in supervising and disciplining the Plaintiff; and

(ii)investigating complaints from and about the Plaintiff;

  1. (c)
    take all reasonable steps to ensure the supervisors responsible for supervising the Plaintiff following policies and procedures in place with respect to his employment.”
  1. [13]
    It is unsurprising these were pleaded as “implied” terms because the letter offering Mr Ackers employment, an offer accepted by Mr Ackers,[5] said nothing express as to Council’s obligations in the workplace towards Mr Ackers. The pleaded contractual duties are alleged by paragraph 4A of the amended statement of claim to be “implied into the contract to give efficacy to the contract of employment” in factual circumstances thereafter alleged in paragraph 4A.
  2. [14]
    The factual circumstances listed in paragraph 4A fall into two general categories. The first is simply that Mr Ackers had obligations he had to meet, namely that Council required him to undertake the duties set out in his position description and his personal training and development plan of 18 December 2014 and to comply with Council’s policies, administrative instructions, procedures and supervisors’ directions.[6] The second category of circumstances is that the payroll unit was short staffed from March 2015 and that he was required to undertake his duties by working excessive hours with an excessive workload.[7]
  3. [15]
    Those factual circumstances are of background relevance to consideration of the case in negligence. However, it is not apparent how they require the implication of the duties pleaded at paragraph 4 to give efficacy to the contract of employment.  The law generally trends against such an implication.[8] Moreover, no substantive argument was advanced in support of the implication. Accordingly, the pleaded implied contractual duties have not been established.
  4. [16]
    The issue in any event appears to be academic. Mr Ackers’ counsel confirmed in addresses that the case in contract did not rely upon duties additional to or different to the duties arising in negligence.[9] It follows that if the case fails in negligence there is no additional feature of the case which could allow it to succeed in contract.

Duty in negligence

  1. [17]
    Mr Ackers alleges it was the non-delegable duty of Council, as his employer, to take all reasonable steps to avoid unnecessarily exposing employees such as Mr Ackers to a foreseeable risk of psychiatric injury
  1. [18]
    Paragraph 5A of the amended statement of claim pleads that duty arose from five alternative points in time during 2015, namely 4 May, on or around 15 June, on or around late June, on or around 8 July. Subsequent paragraphs of the amended statement of claim allege there existed a foreseeable risk of Mr Ackers sustaining a psychiatric injury, of which the Council was aware, from each of those times.[10]

Breach

  1. [19]
    In paragraph 85 of the amended statement of claim Mr Ackers pleads his injury was caused by the negligence (and or breach of contract) of Council because, by its agents or servants, it failed to take all reasonable steps to avoid unnecessarily exposing “employees such as the plaintiff to a foreseeable risk of injury”. Paragraph 85 alleges in 16 subparagraphs the various ways in which the Council failed to take those reasonable steps, in effect itemising the alleged breaches of duty said to have been causative of the injury. Those subparagraphs of paragraph 85 (some of which were enlarged upon in an amended response to a request for further and better particulars) relate in various ways to the three main controversies mentioned above, namely Council’s investigation of a Union complaint against Mr Ackers, Mr Ackers’ allegedly excessive hours of work and Council’s imposition of a Performance Improvement Action Plan on Mr Ackers.
  2. [20]
    Consideration of the breaches of duty allegedly associated with those controversies is best approached and understood by integrating it within a progressive review of events in the workplace and their consequences, including identifying any signs Mr Ackers gave of psychiatric distress as events progressed.

Introduction to events in the workplace

Mr Ackers

  1. [21]
    Born on 7 January 1970, Mr Ackers is now 51. He was 44 and 45 during his ill-fated year working with Council from September 2014 to September 2015.
  2. [22]
    He has not worked since then because of his psychiatric injury.
  3. [23]
    Prior to working for Council Mr Ackers had a long history of work in the payroll sections of various employers and subsequently in his own payroll relief and consulting business.[11] That business ended in financial difficulty in about March 2013 in the wake of the collapse of Mr Ackers’ marriage.
  4. [24]
    After that Mr Ackers worked in payroll for an international company at its Brisbane and Dubai branches. That employment ended in December 2013. Counsel for Council highlighted that Mr Ackers did not nominate his former employer as a referee in his application for employment with Council the following year.[12] Mr Ackers had deposed that there was an instance when he was employed at Dubai where he had become emotional due to a combination of being away from Australia and the project manager giving him “a hard time”.[13] At that time it was contemplated he may be employed in the company’s Qatar office and the company, being aware of his “pre-existing depression”, agreed with him that he should be assessed by a psychiatrist. He deposed he received the “all clear” but the decision was made not to proceed with his employment at the Qatar office and, due to that development, his contract ended.[14] Mr Ackers was cross-examined about having told a consultant psychiatrist he spoke to in the wake of his problems at Council, Dr Shebini, that he “felt like it was Dubai all over again”.[15] Mr Ackers had no recollection of that. In any event, it is no part of Council’s case that Mr Ackers secured employment based on a misrepresentation. Moreover, as will be seen, Mr Ackers had received favourable performance feedback after the commencement of his employment with Council, for a substantial period prior to the commencement of the issues with which this case is concerned.

Credit and reliability of Mr Ackers

  1. [25]
    It was submitted by counsel for Council that Mr Ackers was an unreliable witness. Some of the factual matters featuring in that submission receive discrete consideration below but it is sufficient in generally addressing the submission to make the following five sets of observations.
  2. [26]
    Firstly, the evidence of what occurred in the workplace and the signs Mr Ackers gave do not emanate solely from Mr Ackers. His evidence that the Council payroll unit was understaffed, that he worked long hours and that he progressively exhibited signs of distress in the workplace is corroborated by other evidence.
  3. [27]
    Secondly, in giving evidence of events in the workplace Mr Ackers presented as a generally credible witness. He occasionally struggled with some temporal and sequential minutiae, though not unsurprisingly so given the voluminous factual detail advanced in the case. He generally made reasonable concessions of error and acknowledged uncertainty. There were some exceptions to that pattern during a challenging cross-examination. However, I did not perceive deliberate dishonesty on his part.
  4. [28]
    Thirdly, much of Mr Ackers evidence, and indeed of some other witnesses, went to whether Mr Ackers was right or wrong about many issues of fact connected with access to Council’s CHRIS21 operating system and the accuracy of certain allegations contained in a Findings from Payroll Review document and entries in a Performance Improvement Action Plan. Many of those issues need not be explored or resolved in these reasons. However, I bear in mind in the general assessment of Mr Ackers reliability that there were instances in cross-examination of Mr Ackers on these topics when his ability to deal objectively with some questioning was obviously impaired by the extent of the doubtless genuinely felt frustration and grievance he holds, and has probably ruminated over, in respect of some of this factual minutiae.
  5. [29]
    Fourthly, Mr Ackers volunteered in cross-examination that he had lied to his consultant psychiatrist by repeatedly representing he was undertaking further studies in a TAFE or university course when he was not doing so. His admission about this appeared honest and it appeared he had lied to please his psychiatrist and reduce embarrassment to himself. Falsely overstating the extent of his recovery to his psychiatrist would be at odds with a desire to falsely understate the extent of his recovery. Nonetheless, it was sustained dishonesty and was also a lie repeated to a nurse he dealt with at the Cairns Clinic. I do not think there existed foundation for a hypothesis also urged by the Council that the desire to please those treating him evidenced a trait which also caused him to have struggled with accepting failure during events in the workplace. However, I do bear this dishonesty in mind in assessing Mr Ackers’ reliability generally and particularly in the context of assessing the true impact of his condition.
  6. [30]
    Fifthly, Mr Ackers’ psychiatric injury manifests physically in a tremor to his right forearm and hand, for which he wears a protective brace, and a stutter so severe it was considered helpful to receive his evidence in chief by affidavit.[16] His oral evidence spanned days three to eight of the trial. As I observed at the conclusion of his evidence, the intensity of his stutter and shake was particularly bad on the first day of his evidence but eased during his time in the witness box as he visibly appeared to become more used to and less stressed by the process of giving evidence.[17] The intensity of his tremor and stutter tended to increase again from time to time when questioning upset or challenged him. I detected no sign he was acting. The variation of his shaking and stuttering was consistent with psychiatric evidence that those physical manifestations of his illness may vary relative to the stress he is experiencing. It was also consistent with his own evidence that his stuttering and tremor each vary in intensity depending on his levels of anxiety.[18] Exhibited video footage,[19] in which Mr Ackers was filmed moving about the community, was not materially inconsistent with that evidence either.

Pre-existing persistent depressive disorder

  1. [31]
    Mr Ackers deposed to an existing history of depression prior to his commencement of employment in 2014 with Council, having taken “anti-depressant medication for many years”.[20]
  2. [32]
    Mr Ackers had seen a psychologist for two years after his father’s death in 2000 and had been started on anti-depressants in 2004 after being upset by the death by suicide of his brother, whose body was found by Mr Ackers.[21] The intensity of Mr Ackers’ condition fluctuated, being influenced by subsequent upsetting events such as the death of his best friend in 2008 and the end of his marriage and business.[22] Prior to starting at the Cairns Regional Council in September 2014, Mr Ackers was being prescribed 60md/day of paroxetine which is considered to be a high dose.[23]
  3. [33]
    Dr Byth and Professor Whiteford, the psychiatrists called respectively for Mr Ackers and the Council at trial, each opined Mr Ackers’ pre-existing condition was a dysthymic disorder, meeting the criteria in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) of a persistent depressive disorder.[24]
  4. [34]
    On Mr Ackers’ account his depression was “well controlled” and when he started at Council he was well, and capable of performing the job for which he was employed.[25] It is not alleged Council knew of Mr Ackers’ condition when it employed him or that he was obliged to have disclosed it.

A new payroll supervisor

  1. [35]
    Mr Ackers commenced employment as payroll supervisor at Council on 22 September 2014. That position’s objective was to ensure the operational effectiveness and efficiency of the payroll unit, which was the section of Council’s finance department responsible for payroll.
  2. [36]
    In his position, Mr Ackers was to report to the coordinator of the shared services branch, Ms Mandy Wise. Ms Wise had been on the selection panel which selected Mr Ackers, as was Mr John Andrejic, Council’s then chief financial officer, and Ms Lisa Whitton, the head of Council’s finance department.

A mandate to improve the payroll unit

  1. [37]
    When Mr Ackers was appointed, Mr Andrejic told him he had two mandates, namely, to “fix the staff and fix the system”.[26] Mr Andrejic was not called as a witness but Ms Wise confirmed in her testimony that Mr Andrejic had told Mr Ackers to fix the system and fix the staff and agreed that was “his mandate”.[27] She testified there had been problems within the payroll system and with payroll staff prior to Mr Ackers’ employment.[28]
  2. [38]
    Mr Ackers deposed he was told during the selection process that one of the problems was staff error and previous payroll supervisors had been unable to fix the problems.[29] He testified Mr Andrejic then told him it was an issue that the payroll system was “very manual” and there were a lot of errors being made in manual calculations.[30]
  3. [39]
    Mr Ackers in due course encountered some significant problems in the unit involving at least some staff using inconsistent procedures and making mistakes in pay calculations.[31]

Managing the risk of error

  1. [40]
    The challenge with managing the risk of mistakes was that despite the existence of a computerised payroll system called CHRIS21, the payroll unit still had to complete a significant array of manual tasks in the process of arriving at correct and timely pay calculations within each fortnightly pay cycle. The array of manual tasks was surprisingly significant in our digital age and included a large volume of manual timesheet and leave form calculations, manual award interpretations, reconciliation of timesheets to a manual report, mandatory cross-checking by another staff member and extensive data entry.[32]
  2. [41]
    For example, the role of so-called timekeepers in the payroll unit involved processing timesheets which came in batches from various Council depots and units and manually coding them, preparatory to data entry, by breaking down ordinary and overtime time earnings under a range of variable awards under which employees worked and applying a range of variable potential allowances and other entitlements.[33] It carried a high risk of human error, a risk bound to be magnified if the unit was inadequately staffed.[34]
  3. [42]
    When Mr Ackers was employed, he explained he had not used CHRIS21 in some time and offered to attend training of his own accord but was told training would be provided.[35] It was not provided.
  4. [43]
    Mr Ackers nonetheless sought to improve the use to which CHRIS21 was being put. He experienced frustration at being refused the level of user access he sought to CHRIS21, to explore whether CHRIS21 might be deployed more effectively to perform tasks otherwise being performed manually and to mitigate against the risk of manual error. Mr Ackers’ perception of shortcomings in the existing CHRIS21 system design and his level of access to it attracted much attention in evidence but it developed no material relevance to the determinative issues. It is not suggested that requiring Mr Ackers to manage with a CHRIS21 system design which might have been improved upon was a breach of duty. Conversely it is not suggested for Council that Mr Ackers should have but failed to improve the CHRIS21 system design.

The obvious need for an adequately staffed unit

  1. [44]
    More to the point is the fact that, as Council must well have known, Mr Ackers was obliged to manage the unit using a system which required the performance of significant manual calculations, interpretations, reconciliations and data entry tasks, with accompanying risk of material error in the performance of those manual tasks.
  2. [45]
    That risk would inevitably be heightened in the event the unit was not adequately staffed. This was not a unit which could ease down the timely performance of its workload to manage during a period when it was temporarily understaffed or training up temporary or new staff. All of Council’s staff had to be paid on time.
  3. [46]
    The evidence was unclear about what the official complement of staff was supposed to be in the payroll unit and there was no evidence Council had in recent times conducted some form of objective assessment of what it should be. On Mr Ackers’ evidence, early in his tenure the complement was seven, consisting of him, five other full-time employees and one casual employee.[36] Those staff were:
  • Payroll supervisor Mr Ackers;
  • Senior payroll officer Alana Tier;
  • Payroll officer Karen Lunt;
  • Payroll officerDeeann Aquilina;
  • Timekeeper Leanne Cracknell;
  • Timekeeper David Wier;
  • Casual timekeeper Lex Johnson.
  1. [47]
    Further, Mr Ackers testified that, from when he commenced, two staff from the finance branch were sometimes supporting the unit, working as payroll officers namely:
  • Temporary support Glenda Alexion;
  • Temporary support Judy Fleur.[37]
  1. [48]
    Mr Ackers explained the contribution of those two temporary officers ceased in March 2015,[38] although he later testified that by February 2015 Ms Fleur was replaced on a similar secondment basis by another finance branch officer, Rebecca Slatyer.[39] Ms Lunt’s recollection was that Ms Slatyer actually commenced at a slightly later stage, discussed below, after three staff went on leave.[40]

Council approves of Mr Ackers but three of his staff do not

Change implemented

  1. [49]
    Mr Ackers proceeded to implement new processes within the payroll unit to improve the consistency of procedures to be followed and mitigate against the risk of mistakes being made.[41] It is likely, as sometimes occurs with change in the workplace, that these changes were resented by some staff who preferred their old way of doing things.

Good performance review in December 2014

  1. [50]
    Mr Ackers apparently performed in his new job to the satisfaction of Ms Wise. She identified no problems with his performance in his probation period performance review or three month performance review interview dated 18 December 2014.[42] Ms Wise testified to telling him he was doing a great job, which was not just because the pays were getting out on time but also because he was reviewing procedures and attempting to improve the efficiency of the payroll office.[43]

Timekeepers moved

  1. [51]
    In late December Mr Ackers implemented Council’s decision, communicated to him by Ms Wise, that two payroll unit team employees who worked at satellite offices as so-called timekeepers would be moved into the payroll unit office in Council’s headquarters at Spence Street. They were Leanne Cracknell of Council’s Martyn Street depot and David Wier of Council’s Stratford Street depot. Mr Ackers aided in moving and setting up their office equipment, preparatory to them working at the Spence Street office from the commencement of January 2015.

Some staff resent change

  1. [52]
    Ms Cracknell and Mr Wier were not happy with being made to move. They may also have been concerned their jobs would largely be replaced by a new initiative being developed by Council called TA21, which if implemented would reduce the timekeeper’s manual tasks with timesheets.[44] In any event they exhibited resentment towards Mr Ackers, were uncooperative in following his directions and spoke badly to others about his competence. Mr Ackers perceived another member of the payroll unit team, senior payroll officer Alana Tier, who had been acting payroll supervisor before Mr Ackers’ appointment, behaved similarly in respect of him. Mr Ackers had been trying to address difficulties with her poor work attendance and resistance to following direction.
  2. [53]
    Mr Ackers deposed in detail to his difficulties with Ms Cracknell, Mr Wier and Ms Tier. They were not called as witnesses.[45] Mr Ackers’ description of their problematic conduct was not challenged in cross-examination. It sufficient to note for present purposes that Mr Ackers informed Ms Wise of his difficulties with those three staff and Ms Wise’s own testimony confirmed there were such difficulties and that they were making Mr Ackers’ job more difficult.[46]
  3. [54]
    Ms Wise testified it was not just the conduct of those three staff which caused problems. She explained there were other poor behaviours which were not conducive to good teamwork. In December 2014 she met with the payroll staff, telling them to lift their game and work cohesively.[47] Ms Wise testified that in so doing she wanted the payroll office staff to know that she was aware of the situation and that she was fully supportive of the actions Mr Ackers was taking.[48]

Good performance review in March 2015

  1. [55]
    Ms Wise conducted a six-month performance review of Mr Ackers in March 2015. She told him he was “doing a great job” and no problems with his performance were identified.[49] That Mr Ackers was repeatedly so positively assessed by Council during the first six months of his tenure will assume relevance to Council’s treatment of him during the subsequent era of difficulty stemming from a sudden loss of staff.

An exodus of staff creates a heightened and challenging workload

The sudden loss of three staff

  1. [56]
    In or around February 2015 Ms Wise convened a disciplinary meeting with Ms Tier, also attended by Mr Ackers, Rachel Faithful from the human resources branch and Ms Tier’s Union representative. Ms Tier was later issued with a written warning about her work performance. Ms Wise subsequently informed Mr Ackers that Ms Tier had gone on indefinite sick leave. Around the same time, Mr Wier informed Mr Ackers he was not feeling well and was going home and was not sure when he would be back. This occurred around 25 or 26 March 2015.[50]
  2. [57]
    Mr Ackers thereafter attempted to set up a non-disciplinary meeting with Ms Cracknell to relay his expectations of her, given Ms Tier and Mr Wier had gone on sick leave. In the end result, Ms Wise determined to cancel that meeting and instead, in early March, gave Ms Cracknell a formal letter requesting a meeting. Ms Cracknell immediately went on sick leave. Mr Ackers accepted in cross-examination that this was on 16 April 2015.[51]
  3. [58]
    The absences of Ms Tier, Mr Wier and Ms Cracknell on sick leave were prolonged. Council considered their substantive positions could not be filled while they remained employed, albeit on leave, in those positions.[52] Ms Tier eventually resigned, probably around 22 May 2015[53] and her position was not filled permanently until the successful applicant, Ms Brangwen, commenced in mid-July. Ms Cracknell did not return to work until about 10 August 2015.[54] Mr Wier eventually returned, about 28 August 2015, though he was assigned work elsewhere than the payroll unit.[55]

Loss of staff puts pressure on

  1. [59]
    The loss of those three staff left the payroll unit short-staffed for some months. Mr Ackers testified performance of their work tasks had to be absorbed into the daily work of Mr Ackers, Ms Lunt and Ms Aquilina.[56]
  2. [60]
    Questions were asked on this topic of Ms Lunt, who still works at Council and seemed restrained in volunteering detail when responding to questions from Mr Ackers’ counsel. She explained she and Ms Aquilina “had to step up”, taking on extra duties, and that she sometimes started work as early as 6am.[57] Ms Aquilina, who no longer works at Council, testified the loss of the three staff changed her workload “drastically”, giving rise to a “huge extra workload” and resulting in her working overtime, the majority of which was unpaid.[58] Ms Wise agreed the workload upon the payroll staff meant Mr Ackers and its other staff sometimes needed to work extra hours to get the pay out to Council employees.[59]
  3. [61]
    Ms Aquilina testified that she observed Mr Ackers take on the work of coding and data entry and review of running pays.[60] She explained, consistently with the evidence of Mr Ackers, that temporary staff did not have the experience nor skillset to simply take over the workload of the permanent staff who were absent on leave. This had the consequence there was a heightened need for her, Ms Lunt and Mr Ackers to provide guidance and assistance to temporary staff which was itself time-consuming.[61] This provision of guidance and assistance was over and above the usual process of reviewing and double-checking payroll officers’ mistakes as part of the labour-intensive manual system in place.[62]
  4. [62]
    The deficiencies in staffing inevitably placed stress on the payroll unit’s remaining staff and increased the risk of error. Additionally, Mr Ackers deposed that in about April 2015 he became aware of and attempted to address past mistakes allegedly made by Ms Tier. These involved reconciliation of timesheet calculations as well as failing to complete, sufficiently or at all, processing of staff queries, end-of-month processing, termination payments and back payments.[63]

The net reduction in staff

  1. [63]
    In the absence of Ms Tier, Mr Wier and Ms Cracknell the remaining full-time staff members of the payroll unit were Mr Ackers, Ms Lunt and Ms Aquilina. The employment term of the payroll unit’s temporarily contracted part-time employee Mr Johnson, which had been due to end, was extended for a month but then ended.[64] Rebecca Slatyer, a temporary support officer from Council’s finance department, continued in the unit.[65] The other temporary support officer from finance, Ms Alexion, returned to finance in March.[66]
  2. [64]
    Mr Ackers deposed to unsuccessfully suggesting to Ms Wise that Ms Lunt should move temporarily to Ms Tier’s payroll officer position and be substituted in her position by a less experienced temporary employee.[67] Instead Council provided Julie Lukawski, from a “temp agency”, to act as the temporary notional replacement of Ms Tier.[68] Mr Ackers deposed there were no full-time replacements of the absent timekeepers Ms Cracknell and Mr Wier, or for Mr Johnson when his one month extension was over.[69] 
  3. [65]
    Some temporary assistance was provided with time sheet coding – the role of the absent timekeepers – by four officers from the human resources branch, namely Rachel Faithful, Rebecca Jones nee Stuart, Thea Price and Deanne Baker.[70] However, the human resources manager, Christine Posgate, ceased that provision of assistance after a couple of weeks.[71] Ms Posgate, who told Mr Andrejic of her decision, testified she was concerned her “staff were spending time doing a payroll function” and not getting to their own workload priorities.[72] Ms Wise confirmed that such assistance did end but was unsure why.[73] She acknowledged the reason for the assistance had been that the payroll staff were not getting through the timesheet processing without having to do overtime.[74]
  4. [66]
    Mr Ackers deposed that in ongoing requests, he asked Ms Wise to provide additional employees, and requested that they be skilled, “not just bodies”, but received no response.[75] Ms Wise acknowledged that after Ms Tier and Mr Wier went on leave Mr Ackers had regularly continued to tell her that the payroll office needed additional staff but she implausibly claimed she could not recall why, apart from “general workload”, he specifically needed extra staff.[76]
  5. [67]
    Mr Ackers deposed that Ms Lukawski and Ms Slatyer each had limited immediately applicable relevant skills and knowledge,[77] although he acknowledged in cross-examination that Ms Slatyer did well and Ms Lukawski picked up the data entry role well.[78] The fact remains though that, after Ms Posgate withdrew the temporary additional assistance of four of her staff, the payroll office was left with substantially less staff than normal. That deficit is readily illustrated by noting who then remained in the pre-existing normal complement of staffing positions and temporary support listed earlier in these reasons:

Payroll supervisor

Mr Ackers

Remained

Senior payroll officer

Alana Tier

Replaced by “temp” Julie Lukawski

Payroll officer

Karen Lunt

Remained

Payroll officer

Deeann Aquilina

Remained

Timekeeper

Leanne Cracknell

-

Timekeeper

David Wier

-

Casual timekeeper

Lex Johnson

-

Temporary support from Finance

Glenda Alexion

-

Temporary support from Finance

Judy Fleur

Replaced by Rebecca Slatyer

  1. [68]
    That appears to have remained the status quo from then until at least a point at about 13 July 2015 when Mr Andrejic decided to place Mr Ackers on a Performance Improvement Action Plan.[79] That finding will assume significance later in these reasons when that decision is discussed, for it means the decision was made after the payroll unit had been inadequately staffed for several months during the final quarter of the financial year.
  2. [69]
    Counsel for Council emphasised there was no evidence Council could have immediately substituted the three staff on leave with equivalently skilled temporary staff. That is as may be but it does not mean the additional demands placed on the remaining staff were unavoidable. Council could have recruited temporary substitute staff capable of being trained to an adequate skill level within a short period, as occurred, for example, with Ms Lukawski, and in the interim provided additional other temporary staff so that the unit had more than its usual number of staff assisting, to compensate for the lower skill levels at its disposal.  However, as the above table illustrates, after Mr Johnson’s extension and the brief injection of extra staff from finance had ceased, the payroll unit was left to fend for itself with materially less than its usual number of staff.
  3. [70]
    That made it inevitable that errors and oversights would occur in the unit’s performance. The remarkable feature of this case is that when, after the end of the financial year, such errors and oversights were discovered by Council it unfairly elected to blame the performance of the unit’s supervisor, Mr Ackers, rather than its own dereliction in leaving the unit inadequately staffed for a sustained period.

No let-up in other managerial obligations

  1. [71]
    In addition to having to cope with an inadequately staffed office in the era after Ms Tier, Ms Cracknell and Mr Wier went on sick leave, Mr Ackers complains that between March and August 2015 he had to attend about three to four meetings per week with persons outside the payroll unit, thus distracting from his available work time in the payroll unit. He describes those meetings as non-essential, apparently perceiving his attendance in his capacity as the payroll supervisor was not essential, relative to tasks he regarded as more pressing in managing an understaffed unit.[80]
  2. [72]
    On Mr Ackers’ evidence the meetings he had to attend but considered non-essential, relative to tasks he regarded as more pressing in managing an understaffed unit, were meetings about:
  • the implementation of a proposed time and attendance management system called TA21, a meeting of one to three hours’ duration occurring twice per week from early 2015;
  • Council’s enterprise bargaining agreement (“EBA”), a meeting of one to two hours duration for about seven meetings around April and May 2015; and
  • a new external timesheet software application developed by a Council employee, Alex Ung, a meeting of one to two hours for seven to 10 meetings during May and June 2015.
  1. [73]
    Mr Ackers deposed he would decline requests to attend these so-called non-essential meetings and he informed Ms Wise that he would have to “remain at work all hours” if he was required to attend the meetings, but that Ms Wise nonetheless directed him to attend them.[81] As much was not in dispute, for Ms Wise testified:

“I would not have made any adjustments to Paul’s responsibilities based on any additional time he might have been doing payroll officer work.”[82]

  1. [74]
    Particulars of the hours these non-essential meetings took were listed by Mr Ackers in exhibit 8 in the proceeding.[83] It shows Mr Ackers had earlier over-estimated, in the estimates to which he deposed, how much time these meetings consumed. I bear that in mind in assessing his reliability generally.
  2. [75]
    Exhibit 8 reveals, inter alia, total hours for such attendances from March 2015 of 15 hours in March, five hours 25 minutes in April, no hours in May, two hours in June, three hours 55 minutes in July, no hours in August and two hours in September. In the busiest of those months – March – the total time spent attending the non-essential meetings equated to more than three but less than four hours a week. It was considerably less in the ensuing months. The hours are obviously not excessive for the role of a unit supervisor.
  3. [76]
    Mr Ackers gave evidence that in addition to meeting attendances he was also required to perform various other additional time-consuming tasks in connection with the TA21, EBA and new external timesheet initiatives. The evidence is less clear as to how long those tasks took.
  4. [77]
    It is tolerably clear that attending meetings and performing other tasks in connection with these initiatives involved a material impost upon Mr Ackers’ available working time. Indeed, Ms Aquilina’s testimony was to the effect that in this era it involved higher demands upon Mr Ackers’ workload than in the past.[84] Nonetheless, the fact remains that Mr Ackers could not fulfill his responsibility for supervising a unit of a corporate body like Council as if it were operating in a vacuum, unaffected by the broader management of Council. These initiatives were management initiatives which would affect how the payroll unit operated and which could not be properly managed and progressed without input from the payroll unit’s supervisor. Illustrating the undesirability of the alternative, Ms Baker testified that Council’s failure to ensure the payroll unit was involved in a previous EBA process had resulted in a “host of issues” for Council.[85]
  5. [78]
    Mr Ackers deposed that after Ms Tier went on leave he had to perform the tasks, normally performed by her, of presenting for about 45 minutes at monthly employee inductions. His affidavit also spoke of the inductions taking two to two and a half hours, as distinct from 45 minutes. It was never made clear whether he was there speaking of different tasks or it was a drafting error. Ms Moller estimated inductions would take 10 to 25 minutes.[86]
  6. [79]
    At one point of his testimony Mr Ackers erroneously asserted the inductions were actually fortnightly but when taken to records conceded that error. This was an innocuous error in the context of a lengthy period giving evidence of recollections about an array of different meetings and obligations. In addition to his induction presentations he had to attend two one-hour meetings with a Council staff member responsible for training, would invest additional time preparing for each presentation and he claimed he also took three to four days to produce his presentation materials, which seems improbably long.[87] The materials could not be located in Council’s management system but that is a neutral consideration because the exercise was so obviously effected by unknown variables such as how the document was titled. That said, my impression is that Mr Ackers, having been deeply frustrated by carrying this burden, probably overestimated the extent of the actual demands on his time of responsibility for it.
  7. [80]
    Mr Ackers also deposed that since January 2015 the payroll unit had assumed responsibility for reconciling and processing the timesheets of agency staff, that is, staff engaged by Council from labour hire companies. Mr Ackers deposed this took him half a day every Monday, there being up to 30 agency staff per week to be processed.[88] It is not apparent why, before the era when the three staff were absent, this was a task he, as distinct from other unit staff, performed. In any event it may be accepted that it too was work made more difficult to complete by the unit because of the absence on leave of Ms Tier, Ms Cracknell and Mr Wier. The same may be said of the need, emphasised in evidence by him, to work on a TOIL (“time off in lieu”) reconciliation process. It was, in effect, part of the further responsibility of his position, made more difficult to fulfill by the staff absences.
  8. [81]
    The relevance of Mr Ackers’ obligations regarding these various initiatives and work tasks in this proceeding is not that it was unnecessary for him to be required to attend meetings or take responsibility for performing other work as supervisor of the unit. Rather it is that his obligation as a supervisor to do so significantly lessened the working hours available to him within the unit to perform or assist others in performing the tasks of absent staff during ordinary working hours. His resentment of having to spend time on these tasks outside the unit was not because of a sense of entitlement as Council submitted, it was because the payroll unit was inadequately staffed and struggling with its core work.

A need to work longer hours

Longer hours

  1. [82]
    Mr Ackers deposed that the inadequacy of the unit’s staffing after the loss of three experienced full-time staff members on prolonged sick leave compromised the work efficiency of the payroll unit and resulted in him working longer hours.[89]
  2. [83]
    According to his letter of appointment Mr Ackers was to work “a nominal 72.5 hours, 9 days a fortnight”, which represents a working day of 8.05 hours.[90] Mr Ackers gave evidence he was supposed to work from 8.30am to 4.40pm (“ordinary hours”) and that even before Ms Tier, Mr Wier and Ms Cracknell went on sick leave, he would often work 30 minutes to an hour longer each day. However, he gave evidence that after these three staff went on sick leave, his hours worked beyond ordinary hours increased substantially to a minimum of 15 hours per week and involved him at times working on weekends and late at night.

Two overnighters

  1. [84]
    Mr Ackers twice worked through the entire night. The first overnight stint occurred on Monday 11 May 2015 after a data loss. Mr Ackers recollection was that this resulted from the crash of part of the CHRIS21 system after the upgrade of the system’s structured query language (“SQL”) version. Mr Ackers’ adverse view of the risks and efficacy of this test process and whether it or he was the cause of the data loss (and even whether it was an upgrade), attracted much attention in evidence but requires no analysis here. The pertinent point is that when the system was restored, two days’ worth of data had been lost. Mr Ackers deposed this required him to work through the night, performing manual calculation and data entry of timesheets and other manual processes associated with the payroll process.[91] While Mr Ackers evidently worked through the night because he believed it was necessary to do so, there is no suggestion that Council had directed or required him to do so. Indeed, Council did not discover that he had worked through the night until the following morning when Mr Ackers informed Ms Wise. Mr Ackers deposed Ms Wise asked why he had been there all night and he responded that “it was to get the pays done”. On Mr Ackers’ account, Ms Wise informed him what he had done was not healthy and that he needed to go home for a break but he asserted he could only leave once the pays were done, around 3pm, and she approved of him remaining at work until then.
  2. [85]
    Ms Wise recalled being told by Mr Ackers of an occasion when he had worked through the night. She testified she told him that was unacceptable and that he should normalise his hours.[92] On Ms Wise’s account she directed Mr Ackers all overtime needed to be approved in advance and that APES forms, which record overtime and the endorsement of supervisors and managers, were to be used for that purpose.[93]
  3. [86]
    Ms Wise, who still worked at Council, testified she would not expect anything would have been so urgent as to have required Mr Ackers to work through the night but could not recall whether she asked Mr Ackers why he had worked all through the night.[94] This strained credulity – it is implausible she would recall this event and the steps she took to prevent a recurrence yet not recall discussing the circumstances which provoked it.
  4. [87]
    Within a few days, on 14 May 2015, records from the Redlynch Medical Centre record Mr Ackers attended as a new patient.[95] The consultation notes recorded he had problems with asthma, depression and high cholesterol and, alluding to an antidepressant called Aropax, noted:

“Stable on Aropax 60 mg – does not want to reduce – has had major issues in past – Had lots of deaths etc. Found somebody after suicide.”[96]

  1. [88]
    It was highlighted in cross-examination that no entry was made in the patient health summary linking any of his problems with work, but he could not recall the detail of the consultation.[97]
  2. [89]
    Mr Ackers deposed the second occasion on which he worked through the night was about two weeks after the first, on Monday 25 May. Mr Ackers deposed that on this occasion it was necessary to remedy the loss of one and a-half to two days of “data in the system”.[98] On Mr Ackers’ account, he informed Ms Wise the only way to avoid a consequential looming 12 to 14 hour delay in the payment of employees was for him “to put in another overnight shift”. On his account, Ms Wise gave verbal permission for him to do another overnight shift.[99]

Long work hours of work a breach in itself?

Pleading

  1. [90]
    On the topic of excessive hours, the breaches alleged in paragraph 85 of the amended statement of claim and, in brackets, the relevant responses to a request for further and better particulars, are:

“(a)Causing and/or permitting the Plaintiff to work excessive hours when the employer knew or ought to have known it was occurring;

  1. (b)
    Failing to implement any or any adequate policy to prevent the Plaintiff from working excessive hours;

(Further particulars: the content of the adequate policy should be such that it prevented the Plaintiff from working excessive hours)

  1. (c)
    Failing to adequately staff the payroll department so that the Plaintiff would not be required to work excessive hours;

(Further particulars: a sufficient number of skilled and experienced staff, compatible to the workload at any given time, would be required to adequately staff the payroll department)

  1. (d)
    Failing to supervise the Plaintiff or do so adequately so that his workload did not increase beyond what he was able to complete in a 7.25 hour day;

(Further particulars: the Defendant, through its servants or agents, ought to have provided adequate supervision)

  1. (e)
    Failing to make arrangements for staff to assist the Plaintiff to complete the work of the payroll department after the Defendant became aware that the Plaintiff was working excessive hours in or about April 2015;
  1. (f)
    Agreeing to the Plaintiff entering into a “RDO Buyout” in May 2015 in circumstances where the Defendant knew that the Plaintiff was working excessive hours;

(Further particulars: the details are contained in annexure H (to the amended response to request for further and better particulars), titled RDO Buyout Option)

  1. (g)
    Requiring the Plaintiff to engage in projects and non-core duties between March and August 2015 in circumstances where the Plaintiff had informed Ms Wise that engaging in those duties meant that he was required to work excessive hours;

(Further particulars: the Plaintiff so informed Ms Wise on numerous occasions between March and August 2015; the Plaintiff repeats and relies on further particulars given about non-essential meetings and additional work tasks)

  1. (h)
    Ms Wise and Mr Andrejic agreeing to the Plaintiff working “as many hours as required to get the pays out” after a system issue meant a delay in the payroll system of 12 to 14 hours;

  1. (p)
    Failing to provide any or any adequate supervision to ensure that a safe system of work was adopted by the Defendant with respect to:
  1. (i)
    Not allowing or requiring their employees to work excessive hours;

…”

Long hours

  1. [91]
    The notion that the manager of a work unit of corporate administration may sometimes perform his or her work outside the ordinary working hours of that unit is unremarkable and obviously not unreasonable of itself. At what point such hours worked outside ordinary hours amount to an “excessive” quantity is less obvious. It is more helpful to focus upon the quantum and frequency of hours worked outside ordinary working hours, rather than the adjective pleaded to describe them, bearing in mind the issue is whether they were such as to have made psychiatric injury reasonably foreseeable.
  2. [92]
    Mr Ackers deposed he worked overtime, that is, outside ordinary hours:
  • from September 2014 to early March 2015 for 30 minutes to an hour each day;[100]
  • from early March 2015 to 6 July 2015 for a minimum of 15 hours per week, at times working on weekends and late at night;[101]
  • from 6 July 2015 to 23 September 2015 for an average of five hours per week.[102]
  1. [93]
    That someone in Mr Ackers’ position may have worked an hour or so longer than daily working hours from September 2014 to early March 2015 and from 6 July 2015 to September 2015 does not of itself bespeak a foreseeable risk of psychiatric injury. The more potentially concerning workload, now focussed upon, is for the period from early March to 6 July 2015.
  2. [94]
    For present purposes that period may more accurately be considered as the 14 week period commencing on 25 March, around when Ms Tier and Mr Wier went on sick leave, and ending on 30 June, the day before Mr Ackers went on sick leave from which he did not return until Monday, 6 July.
  3. [95]
    Council’s position at trial was that Mr Ackers had exaggerated the hours he worked outside ordinary hours, particularly during that period. The issue was explored in various ways.

Schedules advanced by Mr Ackers

  1. [96]
    Mr Ackers created a schedule relating to a 2016 claim he made for unpaid work.[103] The total of the hours said to be owed in that schedule for the period 25 March to 30 June add up to 185.25 hours or an average of 13.2 extra hours a week. This is not far removed from Mr Ackers’ deposed estimate. It is well over a day and a half extra working days a week for 14 weeks.
  2. [97]
    A more recent schedule was created by Mr Ackers for the present proceeding.[104] It was prepared by reference to Council’s records of building entries and exits attributable to Mr Ackers by reason of his use of his Council electronic access swipe card. It was said to represent the minimum hours outside ordinary hours worked by Mr Ackers. In that schedule the total of the hours of swipe card recorded attendances in addition to ordinary hours, on weekends or working days when ordinary hours were exceeded, for the period 25 March to 30 June, add up to 88.49 hours or an average of 6.32 extra hours a week. While that is the substantial majority of an extra standard working day a week for 14 weeks it is a little under half Mr Ackers’ above deposed estimate.
  3. [98]
    Mr Ackers considered the swipe card records understated his work performed. He was cross-examined at length about those records, in the course of which he gave answers speculating as to reasons for why the swipe card records understated the true position. Some were less convincing speculations than others, a feature on which great weight was placed in closing addresses. However, I did not regard the fact that on this topic he proffered some unlikely speculations as materially undermining his credit. It should be borne in mind his position was that because he was certain he had worked substantially longer than the swipe cards suggested, they could not be a complete record of all his arrivals and departures. Further, he was not an expert on Council’s swipe card processes so his posited explanations for the anomaly, when it was pursued in various ways in cross-examination, were destined to be speculative.
  4. [99]
    Mr Ackers pointed out that not all his arrivals and departures may have been registered if he was moving in company with another person who used their swipe card, as he asserted would occur from time to time.[105] That was less likely to occur after hours because there would have been a limited range of persons with swipe card access to the vicinity of the payroll unit after hours. Despite this Mr Ackers was unwilling to concede the weekend swipe card records of his attendances were “pretty accurate”. In this context he recalled that others with afterhours access would sometimes attend work after hours and on a few weekends Council’s swipe entry system was turned on and off to allow weekend access by an employee called Rosie Ball.[106] Council submitted Mr Ackers’ example relating to Ms Ball was not credible, apparently thinking Mr Ackers meant the system was de-activated for an entire weekend but there was some ambiguity in what Mr Ackers meant.
  5. [100]
    Mr Ackers also asserted that, whilst a rarity, he took timesheets home to work on several times.[107] However, I did not understand this rarity, seemingly volunteered under pressure in cross-examination about access to the building, to have been factored into his estimate of average working hours. He also posited there would have been some days when he left his swipe card at home and was issued with a temporary one which may not have featured in a swipe card record search pertaining to him. It is reasonable to assume that was also rare.
  6. [101]
    His position finds indirect support from the fact that according to the swipe card records Mr Ackers was, on some working days, recorded as being in attendance for less than ordinary hours.  In the period 25 March to 30 June on those days when the swipe card recorded attendances for less than ordinary working hours, the total period of notionally unworked ordinary hours is 47.81 hours.[108] Mr Ackers may have spent ordinary working time at meetings and the like at locations elsewhere in Cairns but that possibility is unlikely to account for that many hours. Mr Ackers could only recall leaving early on two occasions, in connection with securing domestic accommodation when he commenced employment and again six months later.[109] It is important to bear in mind the oral testimony of others in the workplace during this 25 March to 30 June period was consistently to the effect that Mr Ackers was very busy throughout the working day. That testimony was obviously reliable, coming as it did from multiple sources, and is inconsistent with the notion that Mr Ackers was not working full days. In light of that evidence the above total of notionally unworked hours founded upon the swipe records appears unreliable. This likelihood in turn supports Mr Ackers’ position that the swipe card records do not provide a reliable record of all his attendances in the building in that they fail to evidence all of the times when he was present at work.

Meta data

  1. [102]
    Beyond swipe card records another potential evidentiary source of when Mr Ackers was at work is Council’s document management system, in the sense its meta data would show when Mr Ackers was active in the system. It may be expected a substantial part of his work would have involved accessing that system but not all of it would. For instance, the work Mr Ackers had to assist with in the absence on leave of the three staff, involved substantial manual work, like coding timesheets. Further, Mr Ackers would not necessarily have been active in the system when performing supervisory work and attending at meetings. He also testified some of his word processor activity, such as internal memoranda to his staff, would not have been conducted in the system.[110]  Ms Wise confirmed that Mr Ackers would have stored documents locally on his own computer and his accessing of those documents in his computer would not have shown up as being accessed in Council’s document management system.[111]

RDO buyout

  1. [103]
    It will be recalled on 6 May 2015 an RDO buyout was approved for Mr Ackers’ accumulation of eight RDO days which he had been unable to take. This was additional evidence of his extra hours worked. An attempt was made in cross-examination to undermine it by contending Mr Ackers in fact took many of those days off. The period from Mr Ackers’ commencement on 22 September 2014 to 6 May 2015 is about 16 fortnights. Council produced a schedule formatted variably in exhibits 18 and 79, which lists 12 weekdays within that period during which it was suggested, premised on the absence of evidence of Mr Ackers’ activity in Council’s swipe card records and its computer system, that Mr Ackers must have taken RDOs. The above observations as to the limitations in this context of Council’s swipe card records and its computer system are relevant in qualifying the force of such an exercise. 
  2. [104]
    Mr Ackers conceded some of the 12 days identified by Council were taken as RDOs and was non-committal in commenting on some others. However, his responses and the state of the evidence for four of the days suggest he likely did work on those days.[112] This would reduce Council’s purported schedule of RDO days likely taken, from 12 to eight, leaving a balance of eight in that 16 fortnight period, which is consistent with the legitimacy of Mr Ackers’ RDO buyout.

APES forms

  1. [105]
    Another relevant evidentiary source is the APES forms. It will be recalled Ms Wise told Mr Ackers after learning of his first “all nighter” that all overtime was to be approved and APES forms used.  The so-called APES forms, in which Ms Wise subsequently approved Mr Ackers working overtime, record the following overtime hours for the following dates:

Sat 23 May 2015  7 hours

Sun 24 May 2015 7 hours

Mon 8 June 2015  9.5 hours (Queens Birthday Public holiday)

Sun 21 June 2015 5 hours

Mon 22 June 2015 5 hours

Sat 27 June 2015  5 hours

Mon 29 June 2015 2.5 hours

Tues 30 June 2015 2.5 hours[113]

  1. [106]
    That is a total of 43.5 hours accumulated within a period of only five weeks and three days, an average of about 8 hours a week.
  2. [107]
    As with the RDOs an attempt was made in cross-examination to undermine the accuracy of the APES forms record of overtime by contending Mr Ackers did not work as long as claimed. It was likewise inconclusive in trying to undermine facts treated as accurate by Council’s own managers at the time.
  3. [108]
    The APES forms also support Mr Ackers’ position that the swipe card records do not provide a reliable record of all his after-hours attendances in the building in that some of the total hours in the APES forms are not supported by swipe card records. It is important to appreciate the APES records relate to overtime approved in that era.  It is unlikely Mr Ackers was then greedily rorting overtime claims given that he only came to be completing the APES forms because of his employer’s direction in the wake of it being realised he had been generously performing significant unpaid overtime. The APES forms are likely a more reliable contemporaneous record of the hours worked on the days they relate to than the swipe card records.

Conclusion

  1. [109]
    The effect of Mr Ackers’ evidence about the 25 March to 30 June period was that he would have worked extra hours for which he was not paid overtime even in the final five weeks of that period to which the APES forms relate. Those forms of themselves give an average of eight extra hours a week. It is to be borne in mind some of the time in the APES forms was for extra hours worked on some weekdays. An additional moderate amount of daily extra time worked incrementally beyond ordinary hours on weekdays would likely have escaped the intervention of Ms Wise during that five week period, though I doubt that in that five week period it would have been quite as much as another seven hours a week so as to uplift the aforementioned eight hours, to the 15 hours a week estimated by Mr Ackers.
  2. [110]
    I accept that in some weeks, earlier in that period, Mr Ackers’ average may have ranged as high as 15 hours a week worked additional to ordinary hours. However, my sense of the evidence overall is that, as demanding as Mr Ackers’ additional working hours were, a weekly average of 15 hours for the entire period is probably a slight over-estimate. In my conclusion, if the hours a week worked additional to ordinary hours are expressed as an average for the 25 March to 30 June period, the average would likely have been about 12 hours a week.
  3. [111]
    This is of course a substantial additional amount of working hours, worked over a prolonged period. Council had corporate knowledge he was working very long additional hours, albeit it was not monitoring the amount closely.
  4. [112]
    Rightly or wrongly it is not unheard of for administrative staff with managerial responsibilities to work substantially longer hours than their official working hours. Reasons for doing so, which are not mutually exclusive, may include a desire to keep up with a substantial workload, an awareness of having been inefficient with working time during ordinary hours, a desire to work without distraction, professional pride, loyalty and ambition.
  5. [113]
    The present issue is not the moral or legal impropriety of employers expecting workers to carry workloads over a sustained period which can only be met by working one to two hours longer than standard hours each weekday as well as working for part of the weekend and occasionally having to work through the night.
  6. [114]
    The issue, at least at this point in my reasons, is whether this employer’s knowledge of such additional hours, if averaging about 12 extra hours a week for 14 weeks, made it reasonably foreseeable that Mr Ackers may suffer a psychiatric injury. The issue is finely balanced, particularly factoring in knowledge that in relatively close succession Mr Ackers twice worked through the night. It was undoubtedly a prolonged and substantial burden. Ultimately though I do not accept that the volume of extra working hours was, standing alone, so extraordinary as to bespeak foreseeable risk of psychiatric injury. In my conclusion, assuming that Mr Ackers was a person of normal fortitude, it was not reasonably foreseeable that the burden of such extra working hours may cause a psychiatric injury.
  7. [115]
    The qualification that Mr Ackers was a person of normal fortitude is important and heralds the point that it is artificial to consider the issue of foreseeability by considering the volume of extra working hours standing alone.

Inadequate staffing the cause of having to work longer hours

  1. [116]
    Before moving from the topic of long hours it is convenient to deal briefly with Council’s position that if, contrary to its contention, Mr Ackers did work excessively long hour hours, that was because of his inefficiency. It may be accepted Mr Ackers, like any worker, may have sometimes worked additional hours outside ordinary hours because of his own mistakes or inefficiencies during the working day. However, the extent of his long hours during the above discussed era, as distinct from earlier, when there was no problem with inadequate staffing, makes it obvious it was understaffing, not inefficiency which caused the prolonged period of long additional hours worked.
  2. [117]
    This conclusion is consistent with the evidence of other staff about the pressure of work during that era.[114]

Corporate knowledge of stress on Ackers accumulates

Corporate knowledge of “huge stress” on Mr Ackers as at 28 April 2015

  1. [118]
    Ms Baker, as human resources coordinator, met regularly with the various human resources advisors to departments of Council. On 28 April 2015 in a meeting with human resource advisor Rachel Faithful, regarding the finance department, she noted she was told by Ms Faithful at the meeting:

“Payroll – crazy crazy, huge stress on Paul, Karyn and Deeann. Rachel concerned about hours being worked and health of the team.”[115]

Ms Baker testified that she conveyed that information to the manager of the human resources branch, Christine Posgate.[116] When that was put to Ms Posgate she responded that she did not recall it,[117] although she did acknowledge having learned there were concerns expressed that with the loss of three employees there was understaffing and an increased workload on others in the payroll unit.[118] I accept Ms Baker’s evidence that she did convey what Ms Faithful had told her to Ms Posgate.

  1. [119]
    I reach that conclusion conscious Ms Baker has long been a close supporter of Mr Ackers. Ms Baker’s friendly relationship with Mr Ackers changed in late 2015 into what she described as more of a “partner relationship”[119] and what he described as a romantic relationship.[120] Mr Ackers denied the relationship had elements of romance any earlier.[121] An exhibited email, apparently from Mr Ackers to Ms Baker, dated 27 March 2015 suggested that at least Mr Ackers had a sexualised interest in Ms Baker as at that time, as Mr Ackers seemed to accept,[122] but Ms Baker could not recall receiving the email.[123] Further, a psychiatrist who saw Mr Ackers on 26 February 2016, Dr Shebini, noted the words “in a relationship 12 months”.[124] Of that notation, which Mr Ackers explained was inaccurate, Mr Ackers conceded he could have said it but was highly medicated at that time.[125] The probability is that a close bond was developing between them throughout 2015 as they had contact with each other in the workplace, so that there was a gradual rather than precise transition of the relationship into a romantic one.
  2. [120]
    After Mr Ackers ceased employment at Council Ms Baker assisted him in preparing a wages claim against Council before the Queensland Industrial Relations Commission in 2016.[126] Indeed she herself resigned from Council that year under threat of disciplinary action about a disclosure by her to Q-Comp in support of Mr Ackers’ review of his worker’s compensation claim.[127] Ms Baker and Mr Ackers each acknowledged they had regularly discussed the present case with each other.[128]
  3. [121]
    These are all reasons why I took particular care in assessing the reliability of Ms Baker’s evidence in support of Mr Ackers’ case, and Mr Ackers’ evidence for that matter, but her testimony did not present as inherently unreliable. More particularly, it was consistent with apparently contemporaneous notes.[129] Further, her assertion that she disclosed the abovementioned concerns regarding Mr Ackers to Ms Posgate, as well as subsequently communicated concerns, was not disputed in cross-examination.

Foreseeable risk of psychiatric injury from 28 April?

  1. [122]
    The date of the above disclosure, 28 April 2015, was pleaded to be the first date from which there existed a foreseeable risk of psychiatric injury to Mr Ackers. I accept Ms Posgate’s knowledge of the disclosure equates to Council’s corporate knowledge. However, I do not consider this disclosure, which related to the staff of the unit generally, did more than reveal concern about the stress which was on the unit by reason of it being inadequately staffed and working long hours. The reference to concern about the “health of the team” appears to have been an expression as to the potential for impact upon health. It did not mention any signs being shown by Mr Ackers that he was in emotional distress. The disclosure did not take the existing body of corporate knowledge to the point that Council should at that point have foreseen a risk of psychiatric injury to Mr Ackers.

Corporate knowledge Mr Ackers not coping as at 4 May 2015

  1. [123]
    In a further meeting by Ms Baker with Ms Faithful regarding the finance department on 4 May 2015, Ms Baker noted the effect of what she was informed by Rachel Faithful, namely:

“Payroll – Paul not coping, working large hours concerned about health.”[130]

Ms Baker testified that she conveyed that information to human resources branch manager, Christine Posgate.[131] Ms Posgate “vaguely” recalled the reference to not coping and working large hours but not the reference to health.[132] I accept Ms Baker’s evidence that the information was conveyed to Ms Posgate.

Foreseeable risk of psychiatric injury from 4 May?

  1. [124]
    The date of this disclosure, 4 May 2015, was also pleaded to be an alternative date from which there existed a foreseeable risk of psychiatric injury to Mr Ackers. This expression of concern was more specific than the expression of concern of 28 April 2015, in that it was an expression of concern about Mr Ackers’ health and that he was not coping.
  2. [125]
    It was this information which took the accumulating load of corporate knowledge closer to the point of raising a foreseeable risk of psychiatric injury but, as a matter of degree, not to that point. 

RDO buyout 5 and 6 May 2015

  1. [126]
    According to his letter of appointment Mr Ackers was to work “a nominal 72.5 hours, 9 days a fortnight”, which represents a working day of 8.05 hours.[133] The nine-day fortnight meant Mr Ackers could work a nine-day fortnight with the tenth day being available as a so-called rostered day off (“RDO”). Ms Wise testified that by May 2015 she had been told by Mr Ackers that he had not been taking his RDOs.[134] By memorandum dated 5 May 2015 Mr Ackers requested an “RDO buyout … for my current accumulation of 8 days which I have been unable to take”. The request was signed as supported by Ms Wise on that date and signed as approved by Mr Andrejic the following day.[135] That Mr Ackers had been working more than the nine-day fortnight he was employed for,[136] further enhanced the Council’s knowledge that, as had been reported on 4 May, he was working long hours.

Display of frustration at TA21 meeting 6 May 2015

  1. [127]
    One of the meetings Mr Ackers had to attend in his role was about the implementation of a time and attendance management system called TA21, a system which was the subject of much preparation during 2015, although it did not ultimately proceed.
  2. [128]
    At a TA21 meeting on 6 May 2015 Mr Ackers was harbouring frustration at the additional work the implementation project was imposing upon him and the payroll unit.  He deposed he conveyed that frustration to Ms Wise who indicated she would raise the topic, but she did not do so at the meeting.[137] On Mr Ackers’ account he therefore expressed his frustration, stating firmly, “No, I discussed this with Mandy and we don’t have time and cannot do another key stroke.”[138]
  3. [129]
    Mr Ackers deposed he was firm but not aggressive, however Ms Wise later told him his behaviour had been inappropriate and requested him to apologise.[139] This resulted in him sending an apology by email the following day to Jason Burgess, Gitte Galea, Mandy Wise, Deanne Baker, Mikayla Moller, Leah Brown, with cc copies to John Andrejic and Andrew Carline, saying:

“I would like to apologise for my tone in yesterday’s TA21 meeting. I understand that this was a project meeting and this was not the forum for the current frustrations, restrictions and workload capability of the Payroll Team situation to come out in the way it did. The Payroll Team is doing the best it can at the moment, under the current circumstances.

I understand and acknowledge that I and the Team cannot honour the commitments made to the TA21 project at this point in time. This is something that is difficult for me to accept and certainly don’t like that the situation has impacted on projects that require dedicated attention from myself and/or the payroll team. It is however something we cannot control in the short term. Our focus has to be on ensuring all our employees are paid. Although I have mentioned this before, I acknowledge that there may have been a more appropriate forum to convey this.

No doubt we are all working for a common goal and I am hopeful that the current situation will be resolved as soon as possible and we can get back to dedicating efforts to business improvement processes outside the normal payroll process.

I am again sincerely sorry and hope we can move forward from here.”[140]

  1. [130]
    Ms Wise conceded Mr Ackers told her, when she instructed him to apologise, that he was frustrated with having to attend so many meetings when he had a lot of other work to do.[141] Ms Wise conceded Mr Ackers was of the opinion the TA21 workload could not be fitted in with the staff he presently had, but she disagreed.[142]
  2. [131]
    Ms Posgate became aware of the above episode when investigating a Union complaint dated 15 June 2015 and understood this episode of frustration had been because of Mr Ackers’ workload.[143] Standing alone, Mr Ackers’ emphatic expression of resistance to the imposition of extra work did not present as an abnormal reaction by an overworked supervisor of an overworked unit to the imposition of more work. A person of normal fortitude may well have reacted intemperately and angrily to such an imposition. 

Union complaints

Union complaint of 8 May 2015 re workplace health and safety

  1. [132]
    By a letter dated 8 May 2015 to Council’s human resources manager, Christine Posgate, the Services Union complained of “serious workplace health and safety concerns” in the payroll unit.[144] The letter complained of the unreasonable workload inflicted on employees having to learn the new TA21 system as well as performing their ordinary duties. It also complained the new TA21 system was being implemented while employees were still in the process of learning it and were being required to attend disciplinary meetings to respond to alleged performance issues. The letter added that employees had been directed to dispose of any current guides/written tools that assist them in performing their ordinary duties, thus increasing the likelihood of errors. The Union letter also asserted there had been adverse effect upon employees, with three employees currently on long-term sick leave due to stress.
  2. [133]
    In a letter of response to the Union by Ms Posgate, dated 19 May 2015, she dispensed with the latter complaint by explaining that in a reasonable management action the payroll supervisor – a reference to Mr Ackers – had advised all old reference documents were to be disposed of and that staff should access a central reference point so as to ensure consistency.[145] In relation to TA21, the letter explained only one employee had been required to participate in TA21 activities and that whilst one member of the payroll team was taken offline to complete testing, her nominal duties were absorbed by the remaining payroll team members. Finally, in respect of disciplinary meetings and alleged performance issues, the letter explained there were two instances of proposed disciplinary action and that they related not to TA21 teething errors, but to failure to follow lawful direction, habitual lateness and inappropriate behaviour and attitude towards their supervisor. The letter noted only two of the three staff had been required to participate in the disciplinary process, that one of the three staff had indicated their sick leave was a result of having to respond to a notice of proposed disciplinary action, and that all three staff members’ medical certificates stated they would be “unfit for work due to a medical condition”. Ms Posgate’s letter indicated it was news to Council that the three payroll staff members were absent due to stress.

Union complaint of 22 May 2015 re Mr Ackers

  1. [134]
    By a letter dated 22 May 2015, again directed to Ms Posgate, the Services Union made a complaint specifically about the behaviour of Mr Ackers, itemising various complaints about conduct it asserted could be viewed as sexual harassment and about other aspects of Mr Ackers’ behaviour and demeanour in the workplace.[146]
  2. [135]
    Ms Posgate conducted an investigation.[147] She conceded that at this time she knew there were concerns regarding whether Mr Ackers was coping in his role and that he looked a bit stressed[148] and had been working excessive hours.[149]

Union complaint results in warning issued to Mr Ackers 18 June 2015

  1. [136]
    Mr Ackers was interviewed about the complaints of 22 May 2015 on 16 June 2015 by Ms Posgate, in the presence of Mr Andrejic.[150] Mr Andrejic told Mr Ackers the complaint had come from the Union.[151]
  2. [137]
    On 18 June 2015, in a meeting of Ms Posgate, Mr Andrejic and Mr Ackers, Ms Posgate presented a letter of the same date to Mr Ackers, advising the outcome of the investigation was that three of the complaints had been substantiated and giving him a written warning.[152]

Outcome

  1. [138]
    The letter of 18 June advised Mr Ackers that his behaviour in respect of each substantiated allegation was in breach of Council’s Code of Conduct, itemising the relevant provisions. The letter informed Mr Ackers that the endorsed course of action and response by Council was that the letter constituted a written warning for not acting in accordance with Council’s Code of Conduct. The letter acknowledged Mr Ackers’ honesty and his acceptance of “full responsibility” for his actions during the course of his meeting on 16 June 2015. The letter required that Mr Ackers attend workplace harassment, sexual harassment and discrimination training and 101 leadership coaching, the details of which were to be forthcoming later. The letter again reminded Mr Ackers of Council’s free confidential counselling service, encouraging him to make use of it should he feel it necessary.
  2. [139]
    Mr Ackers deposed:

“286.Mr Andrejic told me to “take the disciplinary action” and “see it for what it was and it will go away in 12 months”.

  1. Ms Posgate and Mr Andrejic said:

a. I could be dismissed as a result of the warning and that they had to tell me this to appease the Union; and

b. If I signed the warning the Union could be satisfied that appropriate action had been taken against me.

  1. I wanted the letter/warning changed to exactly what I’d said, but Ms Posgate and Mr Andrejic said not to worry about it, it will just disappear.”[153]
  1. [140]
    Mr Ackers testified he did as he was told and signed the warning letter.[154] He deposed Ms Posgate and Mr Andrejic “should have stepped up for me as they knew the complaint was to get back at me for the disciplinary action”.[155]  This reflects the deep frustration and upset Mr Ackers doubtless felt at being the target of what he perceived to be a successful act of retaliation, after all he had done in challenging circumstances in service of Council. It may well be Mr Andrejic and Ms Posgate were suspicious of the motivation behind the complaint, for the stale timing of many of the complaints smacked of revenge by disgruntled employees. However, the allegations were collectively sufficiently concerning that Council was obliged to investigate them. This was not a situation in which Council had any choice but to let the investigation and outcome take its proper course and it did so.
  2. [141]
    It is convenient at this point to pause the narrative and consider whether there was a breach of Council’s duty of care in its handling of the Union complaint against Mr Ackers.

No breach re handling of Union complaint

The relevant alleged duty

  1. [142]
    It will be recalled paragraph 5 of the amended statement of claim pleads it was the non-delegable duty of Council to take all reasonable steps to avoid unnecessarily exposing employees such as Mr Ackers to a foreseeable risk of psychiatric injury and that this required Council to fulfil a variety of alleged obligations. The pleaded allegations of most apparent relevance to the topic of the Union complaint seem to be the alleged obligation to comply and ensure compliance with each of its usual processes and administrative instructions and procedures in supervising, disciplining and investigating complaints about Mr Ackers.

Legal principles preclude liability re handling of Union complaint

  1. [143]
    Even if by this time there was a foreseeable risk of psychiatric injury to Mr Ackers from the perspective of Council, the law would preclude a finding of liability where the alleged breach is effectively constituted by disciplinary action – see State of New South Wales v Paige[156], Govier v The Uniting Church in Australia Property Trust (Q).[157] These cases are explained below in considering whether they apply to the performance management process which was eventually imposed upon Mr Ackers.
  2. [144]
    Further, even if Council did owe Mr Ackers the alleged duty of care in connection with the investigation of the Union complaint, the evidence does not demonstrate any breach of the duty.

The alleged breaches

  1. [145]
    The alleged breaches of duty relevant to the Union complaint appear to be that the complaints, the subject of the investigation, were not investigated in a manner consistent with Council’s usual processes or in a way that affords employees natural justice and procedural fairness, and that there was a failure to provide adequate supervision to ensure a safe system of work was adopted with respect to the investigation’s consistency with Council’s usual processes and conducted in a way that afforded natural justice and procedural fairness.[158] The particulars as to how the Council failed to investigate the complaints consistently with its usual processes and in a way that afforded natural justice and procedural fairness were identified by Mr Ackers’ amended response to request for further and better particulars by repeating and relying upon paragraph 46(a)-(l) of the amended statement of claim, which read:

“46.The Plaintiff was denied procedural fairness in the course of the investigation and the investigation was flawed because:

  1. (a)
    It included an allegation or allegations that were not part of the formal complaint;
  1. (b)
    The Plaintiff was provided with 24 hours to respond to the complaint;
  1. (c)
    The Defendant’s usual process was to allow five to seven days to respond;
  1. (d)
    The Plaintiff was asked to verbally respond;
  1. (e)
    The Defendant’s usual process was to allow a written response;
  1. (f)
    The Defendant did not interview all witnesses to the alleged events;
  1. (g)
    The Defendant’s disciplinary action did not accurately reflect the verbal response provided by the Plaintiff;
  1. (h)
    The Plaintiff was not stood down during the investigation;
  1. (i)
    The Defendant’s usual process was to stand an employee facing allegations down so that they had time away from the workplace to prepare a response for at least seven days;
  1. (j)
    The Plaintiff was not given the right to nominate witnesses;
  1. (k)
    Ms Posgate acted in the role of investigator and ultimate decision maker;
  1. (l)
    The investigator and the decision maker should have been different people.”
  1. [146]
    These alleged breaches are conveniently discussed in canvassing the evidence of what occurred.

Proper process was followed

  1. [147]
    By a letter of 15 June 2015 to Mr Ackers, Ms Posgate informed him Council was in receipt of a complaint alleging workplace harassment and sexual harassment and that a confidential investigation had been undertaken.[159] Ms Posgate’s letter annexed Council’s Workplace Investigations Administration Instruction[160] for Mr Ackers’ information, explained no findings or decisions had yet been made and required Mr Ackers to attend at interview on Tuesday, 16 June 2015 at 3pm with her and Mr Andrejic. Ms Posgate testified there would have been an earlier oral discussion between her and Mr Ackers identifying a meeting time and explaining that the letter would be forthcoming.[161]
  2. [148]
    The letter invited Mr Ackers to bring a support person or representative with him to the interview. It also reminded him that “Council provides all staff with access to an employee assistance program (“EAP”), which is a free confidential counselling service” and encouraged him to make use of it should he “feel it necessary”. The telephone number of the EAP was also included.
  3. [149]
    The letter of 15 June 2015 to Mr Ackers particularised the allegations against him as follows:
  1. “1.In October 2014 at Council’s Spence Street Administration Building it is alleged you saw Ms Alana Tier – former Senior Payroll Officer, in a skirt and said to her ‘give me a twirl’. The comment and the tone used made Ms Tier feel very uncomfortable.
  2. 2.In November 2014 at Council’s Spence Street Administration Building, Mrs Glenda Alexion – Finance Officer, was having problems with her contact lenses. It is alleged you told Ms Alexion that her partner had ‘missed his mark’ and ‘got sperm in her eyes’.
  3. 3.On 28 November 2014 at the Finance Christmas party being held at Edge Hill Bowls Club you were in the smoking section with a number of colleagues present. It is alleged that you stated to Ms Alexion’s partner, Mr Chris Alexion, that he must ‘learn to aim better instead of getting it [sperm] in Glenda’s eye’.

On the same night it is alleged you also made comment to Ms Tier’s partner stating ‘if she says no it means no, but if she says yes then f**king go for it’.

  1. 4.It is alleged that on a number of occasions your demeanour in the workplace has been abrupt, aggressive, intimidating, and you do not make eye contact with team members when addressing them. Recent events cited include:
  • 3 February 2015 – a meeting with members of the payroll team regarding plant entry resulted in a heated discussion between yourself and Ms Leanne Cracknell – Timekeeper, in the payroll office. It is alleged you became defensive and aggressive during the discussion.
  • Incident involving allowing a non-payroll employee to access to CHRIS21, resulted in you acting in an angry and aggressive manner towards payroll staff by slamming the door and window to the payroll office stating to staff ‘anything that is discussed in this office stays in the office’.
  • 6 May 2015 in a TA21 meeting with colleagues you became frustrated and vented you angry towards those present and acted in an unprofessional manner.”
  1. [150]
    The allegation in the final dot point of allegation 4 above differed from the rest of the above-quoted allegations in that it was not an allegation which had been made in the Union complaint. Its inclusion is pleaded to be a breach because it “was not part of the formal complaint”. Such an inclusion is not precluded by the Workplace Investigations Administration Instruction, which makes no reference to the concept of a “formal complaint”. Nor does it preclude an investigation dealing with more than one complaint in the same investigation. Moreover, it contemplates an investigatory phase occurring prior to the respondent target of the complaint being contacted by the investigator. The Instruction is silent on and does not preclude the possibility of, during that initial investigatory phase, the investigator learning of an additional allegation which ought be investigated and put to the respondent. Indeed, the Instruction’s definition of “complainant” clearly contemplates some allegations may be put to a respondent for response even though they do not emanate from a complainant. Further, Ms Baker, when questioned about the usual investigation process, confirmed issues additional to the initial complaint could be investigated.[162]
  2. [151]
    Exactly how the allegation about Mr Ackers at the TA21 meeting came to the knowledge of the investigator Ms Posgate is of no moment. It is obvious that it did. Given the incident was not of particular gravity and had already been apologised for another investigator may have ignored it but it was open to Ms Posgate to consider it, as she testified she did, as potentially part of a pattern of conduct.[163]  It has not been shown to be contrary to usual process or natural justice and procedural fairness that it was investigated and put to Mr Ackers.
  3. [152]
    Mr Ackers was interviewed about the allegations on 16 June 2015, the day after he received notice of them. This was pleaded to be contrary to usual process or natural justice and procedural fairness both in that he was only given 24 hours to respond, whereas the usual process was to stand the respondent down to allow five to seven days to respond, and in that he was asked to respond verbally, whereas the usual process was to allow a written response. Neither such process is required by the administrative instruction. Mr Ackers’ mere assertion that both were the “usual process”[164] carries no weight, being unsupported by any evidentiary explanation of its foundation, such as reference to past examples of what was usual.
  4. [153]
    The Administrative Instruction requires a respondent be presented with the particularised allegations. That occurred. The Instruction does not require a respondent to be “stood down” to prepare a response, nor was evidence adduced of that being a usual practice. Indeed, the Instruction unremarkably contemplates a stand down may occur where there are allegations of “serious misconduct” or where there is a “perceived workplace health and safety risk”. The allegations were collectively sufficiently concerning that the Council was obliged to investigate them. However, their substance and timing did not suggest a stand down was needed.
  5. [154]
    The Instruction requires a respondent to be given a reasonable timeframe to respond. Mr Ackers now says one day was not a reasonable timeframe but made no such assertion at the time. Nor does he point to any aspect of the allegations or any deficit in his then knowledge of the circumstances attracting them which meant he required more time.
  6. [155]
    As to the usual process being to allow a written response the Instruction provides:

“The respondent may only be required to provide a written response; however, in some cases an investigator may request the respondent to attend an interview in order to provide a response. Should the respondent be required to attend an interview, they will be encouraged to bring a support person or Union representative with them.”

That provision might explain why it would have been common practice for investigations to seek a written response. However, the course actually taken was clearly within the terms of the Administrative Instruction and it has not been shown to be such an abnormal course as to be beyond the range of the usual processes adopted by investigators.

  1. [156]
    It was also pleaded Council did not interview all witnesses to the alleged events. However, there is nothing in the Instruction which imposes such an obligation, the high point being its empowering of the investigator to “choose to interview any relevant witnesses”. Nor is it suggested Mr Ackers nominated any witnesses whose knowledge made interviewing them essential to a just and proper investigation. Mr Ackers deposed he was unaware he had the right to nominate witnesses[165] but that was not credible evidence - any adult in his position would have realised a respondent could inform the investigator of the identity of relevant witnesses.
  2. [157]
    A further basis of complaint is that the investigator, Ms Posgate, was also the ultimate decision maker whereas, Mr Ackers asserts, the investigator and decision maker should have been different people. Again, no evidentiary foundation for that assertion was provided. The Administrative Instruction provides:

“Once the investigator has concluded their investigation, they will present the findings, and in some cases recommendations, to the Manager Human Resources.”

As it happens, the investigator, Ms Posgate, was the manager of human resources and the Administrative Instruction does not appear to preclude the possibility that the manager human resources may be appointed as an investigator.

  1. [158]
    Finally, it was pleaded Council’s disciplinary action did not accurately reflect the verbal response provided by Mr Ackers. He also deposed that on 16 June 2015 he “went back to Ms Wise and Mr Andrejic” saying he was concerned the complaint would tarnish his reputation given the allegations were not accurate.[166] On his own account however, the matters found to be substantiated were the matters he admitted to.[167]
  2. [159]
    Ms Posgate’s letter of 18 June 2015[168] to Mr Ackers advised that of the above-quoted four allegations, allegation 1 was found to be unsubstantiated, because of the absence of corroborating evidence, and the remaining allegations were found to be substantiated.[169]
  3. [160]
    In explaining why allegation 2 was substantiated, the letter advised:

“This has been found on the basis that you have acknowledged that you made the comment. Furthermore, this incident was witness[ed] by other members of the payroll team.”

It will be recalled the alleged comment made to Ms Alexion at work when she was having problems with her contact lenses was to the effect that her partner had “missed his mark” and “got sperm in her eyes”. Notwithstanding Mr Ackers’ general complaint of inaccuracy about his verbal response, he accepts the substance of what he said was similar.[170]

  1. [161]
    In explaining why allegation 3 was substantiated, the letter explained:

“Whilst you have stated that you did not state these exact words, you admit to saying words to the effect of … therefore, on a balance of probabilities, this allegation has been substantiated.

Furthermore, this incident was witnessed by other members of the finance department.”

  1. [162]
    It will be recalled allegation 3 involved events at a work Christmas party when Mr Ackers said to Ms Alexion’s partner that he must “learn to aim better instead of getting it [sperm] in Glenda’s eye”. He also made a comment to Ms Tier’s partner, stating “If she says no it means no, but if she says yes then f**king go for it”. Again Mr Ackers does not specifically deny making the comment to Ms Alexion’s partner. In respect of the comment to Ms Tier’s partner he complains he did not, as the warning letter asserted, admit to saying words to the effect of what was alleged. Rather he claims he said to Ms Tier’s partner that if he hurt or took advantage of her he would have to deal with Mr Ackers and that “no means no”. On his account, Ms Tier said, “But yes means yes” to which he replied, “Knock yourself out”. This appears to confirm the complaint that Mr Ackers had involved himself in a conversation with Ms Tier and her male companion about whether they should proceed with a sexual relationship. It thus appears to be an accurate finding that while Mr Ackers did not state the exact words complained of, he did admit to saying words to the effect of what was complained of.
  2. [163]
    In explaining why allegation 4 was substantiated, the letter explained:

“These have been found on the basis that you have acknowledged your behaviour at each of the above incidents. Furthermore, the above incidents were witnessed by members of the payroll team, and other Council employees.”

  1. [164]
    Mr Ackers’ complaint that this finding did not accurately reflect his verbal response really seemed to be a complaint that it did not identify the various mitigating circumstances in play to explain why he spoke aggressively or angrily on the three occasions, the subject of the fourth allegation. That those circumstances were likely taken into account is reflected in the fact that the only disciplinary action taken against Mr Ackers was the issuing of a warning letter.
  2. [165]
    It follows from the above analysis that even if, contrary to the above conclusion, Council did owe Mr Ackers the pleaded duty in connection with its handling of the Union complaint, there was in fact no breach of it. The real significance of the handling of the Union complaint is Council’s knowledge of its emotional impact upon Mr Ackers.

Corporate knowledge of a change in Ackers in the second half of June

  1. [166]
    Mr Ackers deposed he told Ms Wise and Mr Andrejic he was “completely devastated” by the Union complaint.[171] Mr Andrejic obviously perceived Mr Ackers was deeply affected, for around the time of the warning letter of 18 June he approached Deanne Baker of the human resources branch, who was widely known to be a friend of Mr Ackers, and said:

“I need you to look after the big guy and just help him see it for what it is. Put it in a drawer, and it will all be forgotten.”[172]

  1. [167]
    Ms Baker’s supervisor, Ms Posgate recalled in cross-examination that she learned of what Mr Andrejic had asked Ms Baker to do when Ms Posgate raised with Ms Baker that she appeared to be spending time with Mr Ackers.[173] Ms Baker testified that after Mr Andrejic’s request she would speak with Mr Ackers to see how “his wellbeing was going” and she noticed a decline.[174]   She testified the Union complaint had upset Mr Ackers greatly, resulting in a significant change in him.[175]
  2. [168]
    Mr Ackers deposed that as a result of the process culminating in the warning letter of 18 June 2015 he experienced stress and was afraid to speak to anyone in the office. He felt he could no longer be himself and had to retreat into a shell and conform to what he thought “they wanted me to be”.[176] After 18 June he would keep his head down, say very little and refrain from co-worker interaction.[177] Ms Baker, who would check on him, testified to similar effect.[178]
  3. [169]
    Mr Ackers deposed he was bewildered and upset by the warning and the flippancy with which it was handled in circumstances where he was already feeling unsupported by Council’s inadequate resourcing of the unit, so that the warning process added to the already additional stress he was under.[179] The latter is an important feature of what occurred. The tipping point in triggering the obvious observable change in Mr Ackers may have been the disposition of the Union complaint but it occurred against a background of sustained stress upon Mr Ackers with him giving his all to keep his unit functioning while, despite the concerns for his well-being expressed in the human resources branch, Council failed to staff it adequately. It is a consideration of relevance to the topic of causation considered later in these reasons.
  4. [170]
    Ms Lukawski, who started in March 2015, recalled that after “probably” a few months she noticed a change in Mr Ackers.[180] This is broadly consistent with the change being noticeable in the era of the second half of June now under consideration. She testified that, while Mr Ackers was still friendly, he appeared clearly distressed on occasions and would come into the office, looking visibly disturbed with his hands shaky and his speech shaky.[181] She recalled this happened a number of times.[182]
  5. [171]
    Mr Ackers deposed that about a month after 18 June 2015 – which would be mid-July – he met with Ms Wise in her office where she told him he was taking the warning of 18 June too seriously, being too formal and unfriendly about the workplace and people were noticing and commenting that he was not his happy self.[183] Ms Wise testified she noticed Mr Ackers was behaving out of character, not communicating and dressing unusually formally and she told Mr Ackers it was not normal behaviour and urged him to return to his normal self.[184] She was not clear as to when this conversation was. In any event, her assertion that after that he relaxed somewhat more, seeming to go back to his old self,[185] was not credible, being inconsistent with other evidence about his degeneration post 18 June.
  6. [172]
    Ms Baker rejected the notion that Mr Ackers subsequently improved, before declining again when he was placed on performance management review in August.[186] Support for the continuation of the change in Mr Ackers after the Union complaint was provided by the evidence of Carol Bosworth, a receptionist administration officer at level 3 of Council for many years. She recalled she would see Mr Ackers daily as he went by and he was always happy and jovial and would greet her.[187] However, in the last three months that he was working in the office she testified it appeared that his whole personality changed because he would not smile anymore and would be very quiet.[188] Three months before Mr Ackers ceased work was 24 June, which coincides with the era when, having been devastated by the events of 18 June, Mr Ackers became withdrawn about the workplace.

Foreseeable risk of psychiatric injury from 24 June 2015?

  1. [173]
    The date Ms Posgate wrote to Mr Ackers about the Union complaint, 15 June, was pleaded as another alternative date from which there existed a foreseeable risk of psychiatric injury to Mr Ackers. Late June is another such point in time pleaded in the alternative. The event on 15 June had no connection with signs of distress by Mr Ackers. The more material point was Thursday 18 June when Mr Ackers was devasted by the outcome and the period of days soon following, say by about Wednesday 24 June, when Mr Ackers’ withdrawn behaviour in the workplace would have become apparent to Council.[189]
  2. [174]
    By this time Council knew:
  • for several months Mr Ackers had been under the sustained pressure of supervising an understaffed unit and had made repeated unsuccessful requests for additional staff;
  • for several months Mr Ackers had been working long hours additional to his ordinary working hours, including on weekends; and
  • Mr Ackers had been so busy trying to tend to the internal functioning of the payroll unit he had sought but been refused relief from contributing to corporate meetings and initiatives rather than working on core tasks of the payroll unit.
  1. [175]
    While the corporately known work pressures upon Mr Ackers were undoubtedly challenging, they were not so extreme as to alone make psychiatric injury reasonably foreseeable, assuming he was a person of normal fortitude. By this time Council additionally had corporate knowledge of the existence of concerns about Mr Ackers’ health and the hours he was working, his inappropriate behaviour at the TA21 meeting of 6 May and the fact he had twice worked through the night on 11 and 25 May. To this was now added the knowledge he was devastated by the Union complaint process and was now behaving noticeably different from his normal self, appearing withdrawn, quiet and unsmiling.[190]
  2. [176]
    Despite the accumulation of relevant corporate knowledge prior to 18 May, it is difficult to see why the added knowledge of his devastation at the Union complaint process and his subsequent withdrawn behaviour uplifted that corporate knowledge to the point that psychiatric injury to Mr Ackers was reasonably foreseeable to Council. On the face of it, Mr Ackers’ devastation and withdrawn demeanour may only have been part of a bitterly disappointed emotional response after all he had done in challenging circumstances in service of Council, to Council’s decision to discipline him over apparently stale retaliatory complaints. It is important to bear in mind in the present context it is psychiatric illness which must be foreseeable, and as Dalton J observed in Hayes v State of Queensland,[191] the courts will not assess an employer’s capacity to detect signs of mental illness as though the employer were a medical specialist.
  3. [177]
    In my conclusion by about 24 June 2015 Council’s accumulation of knowledge of the nature and extent of work Mr Ackers was performing and signs he gave, while obviously concerning, had not reached the point where the risk of psychiatric injury to him was foreseeable from Council’s perspective.

Shaking at interviews 1 July 2015

The interviews

  1. [178]
    Ms Tier formally departed Council’s employment on 22 May 2015. The selection process for a new senior payroll officer ensued and Ms Wise arranged for interviews of three applicants for the position to occur on 1 July 2015 with the selection panel being her, Mr Ackers and Ms Faithful.
  2. [179]
    Mr Ackers deposed that four to five days prior to the interviews of 1 July he asked Ms Wise to delay the interviews by one week due to his end of financial year workload but his request was denied because the interviews had already been arranged.[192]
  3. [180]
    Mr Ackers deposed the end of the financial year is the busiest time of year for the payroll unit.[193] He deposed that on 30 June 2015 he could not reconcile the payroll and “spent most of the night trying to work out the error”. The senior payroll officer interviews were therefore to commence the day after Mr Ackers had worked “into the night to process the end of year payroll”.[194] His approved overtime for both that night and the night before had him working to 8.30pm.[195]
  4. [181]
    Mr Ackers deposed that before and during the three selection panel interviews which proceeded on 1 July 2015 he was visibly shaking.[196] He testified he had developed a tremor in his right lower arm, wrist and hand which became progressively worse through to him ceasing work.[197]
  5. [182]
    At one point of his evidence when speaking collectively of his arm shake and stutter getting a lot worse later, Mr Ackers asserted they were prevalent from before 1 July but the evidence only supports the shaking of his hand having manifested in the lead up to 1 July.[198] He later testified his stutter had started lightly in August 2015, became progressively worse and was really bad by January 2016.[199]
  6. [183]
    Ms Aquilina recalled that leading up to 1 July 2015 she had noticed a development of some mild shaking in Mr Ackers’ hand at work.[200] On 1 July, however, she noticed that the shaking of his hand “seemed to have gotten worse” and “it was noticeable that Paul’s hand was shaking”.[201]
  7. [184]
    During the first interview Ms Wise noticed Mr Ackers’ right hand and forearm were shaking, not merely as a slight tremor but “visibly noticeable”.[202] After the first interview she spoke with Rachel Faithful and they decided they would need to inform Ms Chapman of Council’s human resources section.[203] Ms Chapman testified Ms Faithful came to her, informing her that Mr Ackers was obviously unwell, sweating and pale, in response to which Ms Chapman indicated she would make an appointment for him to see a doctor.[204] Ms Chapman testified she saw Mr Ackers to advise him of the appointment and noticed that he was sweating, pale and his hands were shaking.[205]
  8. [185]
    Mr Ackers testified Ms Wise joined him outside for a cigarette after the first interview and that he was shaking. He testified Ms Wise told him she was going to talk to Ms Chapman because he was not well. Ms Wise testified she was concerned but did not ask Mr Ackers what was wrong.[206] After the next interview when they again went outside for a cigarette Ms Wise told him she would be taking him to Ms Chapman after the interviews and he would “be going on medical stand down”.[207]
  9. [186]
    Following the interviews Ms Wise took Mr Ackers to Ms Chapman who told Mr Ackers that he was not well and that he was being stood down on medical grounds.[208]
  10. [187]
    On Mr Ackers’ account, Ms Chapman arranged for him to see a general practitioner, Dr Hassani, at Omega Health that day. He did so. The doctor was not Mr Ackers’ regular general practitioner and he, or at least the medical centre, was selected by Ms Chapman.[209]
  11. [188]
    Omega Health records of 1 July 2015 of the attendance upon Dr Hassani note Mr Ackers was “under a lot of stress” and “sleeping 1-4hrs per day”.[210] Mr Ackers had had a tremor for two days and “has had it before when he gets stressed”. Mr Ackers explained this was a reference to the tremor having earlier onset with stress at Council and denied it meant he had told the doctor he had experienced the tremor prior to his employment at Council.[211] The tremor was noted as being a “fine tremor” when at rest.
  12. [189]
    Mr Ackers deposed he was “stood down on medical grounds for two days” and returned to work on or about 3 July 2015. His assertion he was “stood down” seems to be his characterisation of the circumstance that because he was apparently unwell, Ms Chapman had arranged for him to see a doctor and he then took two days sick leave. Ms Chapman testified Mr Ackers would need to have provided a medical certificate to say he was fit to return to work, but no evidence was advanced from either side that this occurred.[212]
  13. [190]
    Mr Ackers deposed that Ms Chapman was present with Mr Ackers and Dr Hassani when the doctor said Mr Ackers’ shaking was purely stress related and gave him a medical certificate to the effect that he was “unfit” for work.[213] The certificate did not state the medical reason why he was unfit for work.[214]
  14. [191]
    Mr Ackers’ testimony was that Ms Chapman had actually gone into the doctor’s room and was present when he told the Doctor of the toll the understaffing and working hours was having on him.[215] I had the impression he had slipped into literal overstatement about this and was then too embarrassed to concede uncertainty. It seems unlikely Ms Chapman would have been present in the room for the consultation as distinct from present waiting at the medical centre. Ms Chapman denied having entered the room or indeed having travelled to the medical centre on that occasion[216] although she acknowledged Mr Ackers’ state had been such that she did arrange for a Council staff member to take him to the doctor and that she may have gone with Mr Ackers to the medical centre on another occasion at a later stage in connection with worker’s compensation.[217]
  15. [192]
    I accept a Council representative was not literally in the examination room but was present at the surgery. Nothing turns on the above inconsistency of recollection as between Mr Ackers and Ms Chapman as to who from Council accompanied Mr Ackers to the medical centre. It would for either of them be an understandable error, casting no material concern over the reliability of their other testimony.
  16. [193]
    Further, it is beyond doubt that Council had corporate knowledge of the work stress Mr Ackers had been under in working very long hours running an inadequately staffed unit, and that it had been so concerned by his state on 1 July as to have arranged for him to see a doctor. Even if one of its servants had not physically been in the room during the Doctor’s examination to hear the cause of his condition was that work stress it would have believed that it was the likely cause. That conclusion is confirmed by the below discussed reaction of Council’s servants in acting to reduce the hours Mr Ackers was working when he returned to work on 6 July.

Events following Ackers’ return to work in early July

Errors detected

  1. [194]
    When Mr Ackers was absent on sick leave two staff from the finance section, Lisa Whitton and Mikayla Moller assisted the payroll unit with its end of financial year tasks. They detected some errors and raised them with Mr Andrejic.[218] He requested them to then do a partial audit,[219] which was principally performed by Ms Moller, who then had little experience of the payroll unit.[220] She detected further alleged errors. This resulted in Ms Whitton and Ms Moller authoring a four-page document endorsed “Findings from Payroll Review”. That document identified various errors and problems. They are summarised later in these reasons. It is sufficient for present purposes to observe that the occurrence of the alleged errors and problems should have been unsurprising to anyone with an awareness of the recent lack of adequate staffing support for a unit so reliant upon manual processes.
  2. [195]
    It is not entirely clear on the evidence when the Findings from Payroll Review document was created but it referred to reports considered by the “Audit Committee” on 14 July 2015, suggesting it was not created before that date. It is not apparent when the errors the document noted or the document itself were drawn to the attention of Ms Wise or Mr Andrejic but Mr Andrejic likely learned of the fact his staff had discovered errors at some time during the first half of July before the document was created. There were in the meantime other events of significance.

Ackers returns to work

  1. [196]
    Mr Ackers deposed that subsequent to his return to work on 3 July Ms Chapman advised him he needed to find another way to deal with his workload, she apparently having become aware that he had been working long hours and that the payroll unit was frustrated with the lack of staffing.[221] He testified she told him he needed to reduce his hours.[222]
  2. [197]
    Ms Chapman recalls she did speak to Mr Ackers subsequent to his return to work and he informed her he had been working overtime.[223] He explained he had been working a couple of hours every night and some weekends and had done a couple of overnight shifts.[224] Ms Chapman, who testified “You shouldn’t be working those type of hours in any type of job”,[225] told Mr Ackers not to work such hours.[226] Ms Chapman testified she communicated her concerns about Mr Ackers working overtime to Ms Faithful.[227]
  3. [198]
    On 6 July Ms Baker reported to Ms Posgate that Mr Ackers had not been coping well and Rachel Faithful had said he had been shaking at the interviews of 1 July 2015 and had been placed on medical stand down.[228]
  4. [199]
    Mr Ackers deposed that on 6 July 2015 he was told by Ms Wise not to work overtime without express approval.[229] Nonetheless, on Mr Ackers’ own account, he continued to work at least five hours overtime per week “as it was the only way the staff would be paid on time” (by “overtime” he was apparently not referring to approved paid overtime work and rather to work performed outside ordinary hours).[230] Mr Ackers testified he told Ms Wise he was going to do this and she responded, “That’s okay, its not like you’re doing the hours you were doing”. Ms Wise rejected the suggestion Mr Ackers told her he would be continuing to stay on an hour longer each night to get the pay out.[231] The probability is that having been told he had to cease working long additional hours Mr Ackers foreshadowed to Ms Wise that he may stay at work for a while after hours but not to the same extent as in the past and each took what they wanted to hear from that conversation.
  5. [200]
    There is no evidence Ms Wise or anyone else monitored Mr Ackers’ compliance with the instruction that he reduce his long hours. Ms Wise’s own habit was to start and leave work early so she would not have witnessed whether Mr Ackers did stay after usual hours.[232]
  6. [201]
    An unconvincing aspect of Mr Ackers’ evidence, seemingly proffered by way of additional justification for remaining after 5pm, was that Ms Aquilina’s work doing the “end of day run” meant she would not leave before 6pm and he did not want to leave her alone in the office as a junior staff member.[233] It is doubtful he needed to stay merely to supervise Ms Aquilina, as he seemed to concede.[234] It is also unlikely the end of day running of reports needed to occur outside ordinary hours. Ms Lunt testified that she used to run those reports before Ms Aquilina took the task on and she would commence the task between 3pm to 3.30pm, with the run usually lasting 30 minutes on a good day and 45 to 50 minutes on a bad day.[235] Ms Moller testified they took about half an hour.[236] Ms Aquilina was unaware why the running of reports would commence as late as 5pm.[237] Ms Aquilina testified of her involvement in the running of the reports, that they would probably have occurred between 3pm and 5pm and, depending on the complexity of the reports, it would last between 10 minutes to an hour to run and work through.[238]
  7. [202]
    Importantly Ms Aquilina’s memory was that in this era she would, on most days, leave the office about 5.30pm at which time Mr Ackers would still be there working.[239] This supports Mr Ackers’ memory that he did continue to work beyond ordinary hours. It is unremarkable that Mr Ackers would work an hour or so longer than ordinary hours each day in circumstances where he was still in charge of an inadequately staffed unit. I accept that post 6 July Mr Ackers did, as he asserts, work about an hour a day additional to ordinary hours.

Signs still exhibited

  1. [203]
    Mr Ackers testified that after his return to work the shaking of his hand continued.[240] That would not always have been apparent to other staff for, on his own account, its severity may have undulated and it is something he would try and hide by sitting on his hand and concentrating on its use in writing and typing.[241]
  2. [204]
    Ms Aquilina testified that after Mr Ackers returned to work Mr Ackers’ hand shaking problem continued and seemed to get progressively worse.[242] She noted his demeanour about the office seemed more reserved and withdrawn, and he appeared more emotional, it appearing from his facial features that he was stressed.[243]

Chapman consults with the payroll unit on 8 July 2015

  1. [205]
    On 8 July 2015 Ms Aquilina was seen by Mr Ackers to be crying and she informed him she was not coping with the work. Mr Ackers arranged for her to be seen by Ms Chapman and then for Ms Chapman to speak to the rest of his team, which she did. Mr Ackers also deposed that prior to this meeting Ms Slatyer and Ms Lukawski had told him they were also at their wits’ end due to the workload.[244] Ms Lukawski could not recall such a conversation although she did recall that the unit was busy.[245]
  2. [206]
    Ms Aquilina testified that she met with Ms Chapman in Ms Chapman’s office but was “none the wiser” from that discussion as to how the workload and staffing of the payroll office was going to improve.[246] She testified that after that meeting the workload did not improve and “the daily struggles continued”.[247]
  3. [207]
    Mr Ackers testified that in Ms Chapman’s discussion with staff they informed Ms Chapman of concerns about the unit’s overwork and lack of resourcing and management’s lack of trust in it and she responded that she would inform Mr Andrejic and Ms Wise of how bad the state of the unit’s employees was.[248]
  4. [208]
    Ms Lukawski, in giving evidence of what appears to have been the same meeting, recalls Ms Chapman had come over at a time after Mr Ackers “had had words” with Lisa Whitton. The payroll staff had witnessed Mr Ackers having “had words” with Lisa Whitton about it not being acceptable that the payroll unit was running late in getting the pays done.[249] Ms Lukawski recalled that in the meeting with Ms Chapman staff did talk about the workload, explaining to the effect “we’re really, really busy. We’re really doing our best. They ought to appreciate that we’re doing our best”.[250] Curiously, Ms Lukawski, when asked, could not recall if there was any discussion at this meeting as to why the workload was heavy, responding that it was “just accepted that payroll is like that”.[251]
  5. [209]
    Ms Chapman recalls Mr Ackers telling her that his staff were having difficulties and under stress when she met with them.[252] Ms Chapman testified she did meet with a number of staff in the payroll unit who told her they were under a great deal of stress.[253]

Andrejic turns on Ackers on 8 July

  1. [210]
    Mr Ackers later attended a meeting on 8 July 2015 with Mr Andrejic, Ms Wise and Ms Faithful, which, according to the calendar request, was “to develop a plan for the department going forward including resources and processes”.[254] Mr Ackers deposed that an hour before the meeting occurred on 8 July 2015 he was confronted by Mr Andrejic who conversed with him in an ongoing way in the men’s toilet and thereafter into the hallway outside.
  2. [211]
    Mr Ackers deposed of this conversation:

“Mr Andrejic said, “you better have a plan”, being a plan for the department, because “they’d had enough”. I asked him what he meant by “they’d had enough”. He replied, “being too busy in your department”.

I responded by saying, “I do, and I look forward to presenting it”.”

  1. [212]
    Mr Ackers asked Ms Chapman to come with him to the meeting and she did so, although she was not an active participant.
  2. [213]
    Mr Ackers deposed of events at the meeting:
  1. “360.... I was told by Mr Andrejic that:
  1. a.
    my management style with my team was inappropriate;
  2. b.
    I was an enabler; and
  3. c.
    my behaviour had destroyed the relationship between me and Ms Wise.

  1. 363.During the meeting:
  1. a.
    I went through the mandates of what I was employed for;
  2. b.
    I explained the problems I had encountered;
  3. c.
    I advised I required further explanation of the system processes and more training;
  4. d.
    I advised I had an issue with Ms Wise meeting with Ms Tier at her home to accept Ms Tier’s resignation and meeting her for coffee;
  5. e.
    Mr Andrejic said Ms Wise runs that area and I was not to question it;
  6. f.
    I pointed out that Ms Tier should have come in to resign and have an exit interview;
  7. g.
    I pointed out that not doing this undermined what I was trying to put in place by the mandate “fix the staff”;
  8. h.
    I explained the biggest issue with staff was with Ms Tier, Mr Wier and Ms Cracknell;
  9. i.
    I said we have a team of staff who are unhappy, overworked, stressed and who had just had a meeting with Ms Chapman about this.
  1. 364.The meeting lasted around 30 to 45 minutes.
  2. 365.I was tense, shaking and exhausted at the meeting.”[255]
  1. [214]
    Ms Chapman testified Mr Ackers appeared tense at the meeting and that his hand was shaking.[256]
  2. [215]
    Mr Andrejic’s references to Mr Ackers’ relationship with Ms Wise are perplexing. She had not raised any difficulties regarding Mr Ackers performance with him prior to July 2015.[257] To the extent she had raised issues with him since the start of that month it involved her attempts to stop him working long hours and involved no broader concerns about his work performance. She testified she had no memory of hearing about what had occurred earlier that day during Ms Chapman’s consultation with payroll staff, which is surprising given her presence at the meeting later that day with Mr Andrejic.[258] She also claimed to have no memory of what was said at the meeting.[259] To what extent Mr Andrejic’s comments in the meeting resulted from information Ms Wise had given him is not apparent. She would not have heard all Mr Andrejic said because she was asked to leave the meeting early.[260]
  3. [216]
    Exactly why Mr Andrejic moved from a passive to aggressive mode that day, and beyond, regarding the payroll unit’s operation under Mr Ackers is unknown. Council elected not to call him as a witness, despite the inevitable relevance of his evidence and the absence of evidence explaining his absence.
  4. [217]
    On the face of what Mr Andrejic told Mr Ackers, he had lost patience with the workload on the payroll unit being a source of complaint. Perhaps this was an angered reaction Mr Ackers having facilitated expressions of concern to the human resources branch about the travails of staff in a unit under Mr Andrejic’s jurisdiction. Perhaps Ms Wise had in some way deflected blame onto Mr Ackers in speaking with Mr Andrejic, as some of Mr Andrejic’s comments seemed to imply. Perhaps he was unwilling to open up potential scrutiny of higher level responsibility for the dereliction of the payroll unit’s staffing needs – something which was unlikely to occur if the position taken, pushing blame back down the bureaucratic chain of seniority, that the supervisor of the unit was not performing his role well enough.
  5. [218]
    Whatever the reason, it would have appeared to Mr Ackers that he was being blamed for concerns being expressed about his unit’s workload problems – problems which were beyond the power of his level to solve because the unit was inadequately staffed. For the already stressed Mr Ackers – the “big guy” Mr Andrejic asked Ms Baker to “look after” less than a month earlier – the meeting and what Mr Andrejic said in convening it would inevitably have been very distressing.

Disclosure of depression on 9 July 2015

  1. [219]
    On the morning of the following day, 9 July 2015, Mr Ackers went into Ms Wise’s office and placed a box of antidepressant medication on her desk, telling her that he had suffered depression. He deposed:
  1. “366.…I disclosed to her that I had suffered grief-based depression in 2004 as a result of a number of deaths in my immediate family. I also stated that it had no effect on my work.
  2. 367.I told Ms Wise things weren’t working in the payroll department and we needed more staff. I said my staff were burnt out and we needed help. I was crying when I said this to her."[261]
  1. [220]
    Mr Ackers deposed that in the course of this attendance upon Ms Wise she mentioned the high proportion of people who were likely to be on medication for depression and she “would work on things to take the pressure off and put the relationship right between the payroll department and her area”.[262]
  2. [221]
    Ms Wise denied in cross-examination that Mr Ackers was crying and visibly distressed.[263] I accept Mr Ackers evidence that he was. Ms Wise’s following evidence in chief about this event was otherwise broadly confirmatory of Mr Ackers’ account:

“What happened?---He walked into my office. He was still standing and threw a packet of something on my desk advised me that he had been on antidepressants – I don’t know if he used that actual word – for an extended period of time.

And did you say anything?---I didn’t know what to say. I don’t think I said anything.

And what happened after he did those things you’ve just told us about?---He picked up his tablets and left.

Right. Did you tell anyone about that?---I don’t recall telling anyone. I – if I did, my guess would be I would’ve gone to see Michelle.

But you don’t actually remember?---I don’t actually remember.”[264]

  1. [222]
    It is apparent from that testimony that Ms Wise, once again, suffered an implausible lack of memory regarding how she responded to another obviously concerning event involving Mr Ackers. Ms Wise did at least concede later in cross-examination that she had tried to reassure Mr Ackers there was no stigma around taking medication, referring to the relative of another person from Council who suffered from depression.[265] Ms Wise testified she could not recall reporting this episode to Ms Chapman, claiming the incident was “completely out of the blue” and that “everything else seemed normal”.[266] Ms Chapman recalls that around this era she was told, she thought by Mr Ackers, that he had been on antidepressants and suffered depression.[267] Ms Chapman testified she reported that information “to HR – Rachel, I assume, from memory”, a reference to Rachel Faithful, the then HR advisor for the payroll team.[268]
  2. [223]
    Ms Wise’s assertion “everything else seemed normal” was not credible given this was only the fourth working day after Mr Ackers returned from work after being placed on leave in connection with the state he had been in on the occasion of the interviews of 1 July. Ms Wise conceded Mr Ackers had on a number of occasions told her that things were not working in the payroll department and that he needed more staff though she could not recall the specific statement that Mr Ackers’ staff were burnt out and needed help.[269]

Foreseeable risk of psychiatric injury from 9 July 2015

  1. [224]
    A further alternative date pleaded as a date from which Council was aware of a foreseeable risk of psychiatric injury was 8 July 2015. That was a difficult day for Mr Ackers and his hand was seen to be shaking again but it was not a day on which there was an emergence of any new type of sign from Mr Ackers. However, the following day, 9 July, clearly was.
  2. [225]
    In Hegarty v Queensland Ambulance Service[270] Keane JA noted circumspection on the part of an employer may reasonably forestall intervention in relation to the mental health of an employee. The significance of 9 July is that Mr Ackers made a positive choice to disclose his depression through his line supervisor at work. His struggling mental state was no longer a matter of speculation which a diplomatic employer may be hesitant to address because he had not raised it.
  3. [226]
    These reasons earlier enumerated the sustained heightened and challenging workload Council knew Mr Ackers had been enduring. Additional to that knowledge was an accumulation of knowledge of indications Mr Ackers may not be coping as a person of normal fortitude. That accumulation of knowledge, now accompanied by Council’s knowledge of 9 July, was:
  • on 4 May 2015 concerns were expressed in its human resources branch about Mr Ackers’ health and that he was not coping and working long hours;
  • on 6 May 2015 Mr Ackers had behaved so inappropriately at a TA21 meeting in insisting he and his unit did not have time to assist the TA21 initiative that he was required to apologise to those present;
  • on 11 and 25 May 2015 Mr Ackers had twice engaged in the extreme conduct of working through the night;
  • on 18 June Mr Ackers was describing himself as “completely devastated” by the Union complaint process in a reaction which prompted Mr Andrejic to ask Ms Baker of the human resources branch to “look after” him;
  • in the days following 18 June Mr Ackers was behaving noticeably different from his normal self in the workplace, appearing withdrawn, quiet and unsmiling;
  • on 1 July 2015, as a result of the work stress Mr Ackers had been under his arm was shaking during applicant interviews, his state was so concerning to Council’s servants that they required him to see a doctor and he had gone on sick leave;
  • on 8 July 2015 Mr Ackers’ arm was shaking at a meeting with Mr Andrejic and others;
  • on 9 July 2015 Mr Ackers disclosed he was on medication for depression and did so the day after his management of a unit under stress was criticised by Mr Andrejic, in the office of his line supervisor at work, to that supervisor, while crying and physically producing his anti-depressants to her.
  1. [227]
    The combination of that knowledge and the knowledge of the heightened and challenging workload Mr Ackers had been enduring for a prolonged period meant the risk of psychiatric injury to Mr Ackers was from 9 July reasonably foreseeable. Regrettably, in the very era when Council’s management of Mr Ackers should then have been informed by that consideration, it was instead informed by Mr Andrejic’s extreme turn in attitude against him.
  2. [228]
    It is as well to note that finding Council was aware of a foreseeable risk of psychiatric injury from 9 July 2015 is not somehow inconsistent with the pleaded case by reason of the last of the pleaded alternative dates by which such awareness accrued being a day earlier. The knowledge, once present, was ongoing so it was always part of Mr Ackers’ case that inclusive of and beyond 9 July 2015 Council was aware there was a foreseeable risk of psychiatric injury to Mr Ackers and thus had a duty to take reasonable care to avoid psychiatric injury to him. Moreover, Council could not have understood the choice of 8 July as a pleaded date meant it was meeting a case which alleged that the cause of the psychiatric injury had to have been prior to then. After all it was meeting a case in which it well knew the third major category of conduct complained of as causative of injury in the pleading - placing Mr Ackers on a Performance Improvement Action Plan – commenced in late July and beyond.

Duty

  1. [229]
    In the present case, Council’s awareness of foreseeable risk of psychiatric injury to Mr Ackers only arose from 9 July 2015. By this stage there lingered stressors associated with working hours and inadequate staffing but the materially greater workplace threat thereafter posed to Mr Ackers’ mental health was the circumstances surrounding him being subjected to a Performance Improvement Action Plan. Before dealing with those circumstances, it is helpful to identify the duty said to have been owed after it became foreseeable there was a risk of psychiatric injury to Mr Ackers.
  1. [230]
    Paragraph 5 of the amended statement of claim pleads it was council’s duty to take all reasonable steps to avoid unnecessarily exposing Mr Ackers to a foreseeable risk of psychiatric injury. Once it is accepted that Council was aware there was a foreseeable risk of psychiatric injury to Mr Ackers then it is uncontroversial, that Council did have a duty to take all reasonable steps to avoid unnecessarily exposing Mr Ackers to that risk.[271]
  2. [231]
    Consideration of the extent of that duty and whether there has been a breach of it requires consideration of the magnitude of the risk of injury and its degree of probability, for they bear upon what a reasonable employer would do by way of response to the risk.[272] That principle is reflected in s 305B Workers’ Compensation and Rehabilitation Act 2003 (Qld) which provides:
  1. “(1)
    A person does not breach a duty to take precautions against a risk of injury to a worker unless -
  1. (a)
    the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
  2. (b)
    the risk was not insignificant; and
  3. (c)
    in the circumstances, a reasonable person in the position of the person would have taken the precautions.
  1. (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) –
  1. (a)
    the probability that the injury would occur if care were not taken;
  2. (b)
    the likely seriousness of the injury;
  3. (c)
    the burden of taking precautions to avoid the risk of injury.”
  1. [232]
    Consideration of those matters requires consideration of the circumstances surrounding Mr Ackers being subjected to a Performance Improvement Action Plan. This necessarily requires consideration of factual areas of potential breach. It is important such consideration does not obscure the need to take fundamental aspects of the relationship between the parties into account.[273] An argument raised by Council goes directly to such a fundamental aspect here, it being argued that because Council was exercising its contractual right to subject Mr Ackers to a Performance Improvement Action Plan it had no duty in doing so to take reasonable steps to guard against a risk of psychiatric injury.
  2. [233]
    The argument relies upon a line of reasoning advanced in State of New South Wales v Paige[274] and Govier v The Uniting Church in Australia Property Trust (Q).[275]
  3. [234]
    In Paige,[276] a high school principal suffered a depressive illness caused by the handling of an investigation and disciplinary proceedings which had culminated in his resignation. That process had been necessitated by his apparent breach of obligations in connection with the reporting of sexual misconduct complaints against teachers and their confidentiality. He was charged with a breach of discipline under the Teaching Services Act 1980 (NSW) for negligence in the discharge of his duties and this ultimately prompted his resignation which, notwithstanding that it was withdrawn, was accepted by the Department, resulting in the end of his employment. He suffered a depressive disorder caused by the disciplinary procedures that led to his retirement.
  4. [235]
    His complaints of his employer’s breach of duty of care essentially went to the manner in which those procedures were carried out and the assurances he was given in connection with the initiation of that process. The learned trial judge concluded that the general duty of care resting on an employer to provide a safe system of work extended to the provision of a safe system of investigation and decision making if it is not a proper or reasonable system or is carried out “otherwise than in accordance with the rights of the employer to regulate its activities in accordance with contract, common law or statute”.[277] The New South Wales Court of Appeal rejected such extension of a duty of care to such procedures for discipline and termination because of the incompatibility of such a duty with two other areas of the law, namely judicial review of administrative action and the law of contract as modified by statute with respect to wrongful dismissal under a contract of employment.[278]
  5. [236]
    Spigelman CJ referred to the High Court’s reasoning in Sullivan v Moody[279] where parents, accused of the sexual assault of their children, sued the medical practitioners who had examined the children and reported their apparent sexual abuse. The Court there stressed foreseeability alone was not sufficient, for determining the scope of a duty of care may require consideration of “the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships”.[280] The plurality went on to observe:

“… Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.”[281]

  1. [237]
    Paige was followed by the Queensland Court of Appeal in Govier[282] where the plaintiff disability worker had been assaulted by another disability worker and her consequent psychiatric injury was said to have been aggravated by the employer’s alleged breach of duty of care in connection with two letters it had sent to the plaintiff. The first advised an investigation into her conduct was being undertaken and that she was to attend an investigative interview to discuss a physical and verbal altercation between herself and another staff member, and the second noted she had refused to attend to be interviewed and preliminary findings had been made that she was the wrongdoer in the altercation and had breached a Code of Conduct. It called upon her to give written information or explanation about the incident with the reasons why her employment should not be terminated.
  2. [238]
    While the learned trial judge there found the conduct in sending the letters had failed to take reasonable care for the plaintiff’s psychiatric health, it was held the defendant owed no duty of care in connection with them, following the reasoning in Paige. That approach was upheld on appeal. Fraser JA, with whom Gotterson JA and North J agreed, observed:

“The facts found by the primary judge demonstrate that, if the respondent owed the proposed duty of care, the respondent breached that duty by its insensitive and careless conduct in sending the two letters. So far as the question of whether the respondent owed that duty is concerned, the significance of those facts appears to be that the respondent should have known that the appellant might be particularly vulnerable to injury if the respondent did not take reasonable care in its investigation and decision. That is likely to be commonplace where an employer is investigating allegations of assault or other serious misconduct made by an employee (or a third party) against the employee under investigation. It is not a ground for distinguishing Paige.”[283]

  1. [239]
    The present case is quite different than both Paige and Govier. Council’s conduct, to which I will shortly turn, did not occur in the context of investigating or deciding complaints of an unlawful conduct, such as the alleged assault in Govier, or of a breach of discipline contrary to statute, such as the disclosure violations in Paige. As will be seen, the process purportedly undertaken was not a disciplinary process; it was a purported performance management process.[284]
  2. [240]
    Further, to apply the line of reasoning in the above cases here involves the argument that an employer under no circumstance owes a duty of care to an employee in purporting to take an employee to task about mistakes the employee has allegedly made in the performance of his or her job, because it would be incompatible with the employer’s contractual right to require competent job performance. Carrying Council’s incompatibility argument to its logical extent would have the remarkable consequence that employers have no duty of care to protect their employees from workplace bullying or other acts of petty vengeance carried out under guise of correcting the employee’s allegedly poor performance.
  3. [241]
    There is no logical incompatibility between the existence of the right to require competent job performance and liability in negligence for a breach of the duty of care to avoid foreseeable risk of psychiatric injury, if the breach involves a process of purported correction of job performance which is carried out in bad faith or contrary to the employer’s own processes and procedures. Such conduct bespeaks an other than genuine purported exercise of the contractual right. It was present here. I accordingly reject Council’s incompatibility argument.

Ackers targeted

Andrejic known to be targeting Ackers from at least 13 July

  1. [242]
    Council had corporate knowledge by at least as early as 13 July 2015 that Mr Andrejic was wanting to terminate Mr Ackers’ employment.
  2. [243]
    On that date, Ms Baker had one of her meetings with Ms Faithful, regarding the finance branch. Her note of the effect of what she was told by Ms Faithful was:

“Paul – Rachel struggling to manage John in relation to expectations, Paul is dead to John and has written him off doesn’t matter what happens performance management or disciplinary action Paul won’t survive”[285]

Ms Baker testified in explaining this note that Ms Faithful said Mr Andrejic had said that Mr Ackers was dead to him.[286] Ms Baker testified that she passed the information received from Ms Faithful on to the manager of human resources, Christine Posgate.[287] Ms Posgate testified she recalled being told Ms Faithful was having difficulties managing Mr Andrejic’s expectations with respect to Mr Ackers’ employment but did not recall being told Mr Andrejic had written Mr Ackers off and that he was dead to him and would not survive.[288] I accept Ms Baker did pass that information on to her.

  1. [244]
    Ms Posgate did accept that Ms Faithful came to her for advice on how to handle Mr Andrejic’s expectations, telling her Mr Andrejic wanted to go directly to a disciplinary proceeding against Mr Ackers in light of some mistakes that had been pointed out to him.[289]
  2. [245]
    Ms Posgate’s evidence was vague and uninformative about discussions she may have had with Ms Faithful or Mr Andrejic about Mr Andrejic’s decision-making culminating in Mr Ackers being placed on a performance management plan.[290] She ultimately testified she did not know how the decision was made to pursue the Performance Improvement Action Plan. Neither Ms Faithful nor Mr Andrejic were called as witnesses.[291]

Ackers told on 13 July of a forthcoming “kick in the arse”

  1. [246]
    Mr Ackers deposed that on around 13 July 2015 Ms Wise told him Mr Andrejic would be calling a meeting with Mr Ackers at which Mr Ackers would be “getting a kick in the arse”. She allegedly told him he should not question it and should accept it and move forward. In Ms Wise’s testimony she acknowledged she had told Mr Ackers he was going to be getting “a kick in the arse” and did so to forewarn Mr Ackers that Mr Andrejic was not happy with his performance.[292] She testified she had told Mr Ackers he should “take whatever was dished out”.[293]
  2. [247]
    In light of subsequent events, and in the absence of any known other trigger for a “kick in the arse”, Mr Andrejic by this point was likely in receipt of at least some information about errors made in the payroll unit. As much was confirmed when Ms Wise acknowledged in cross-examination that Mr Andrejic had told her he had been provided with information from Mikayla Moller and Lisa Whitton that “tasks at Mr Ackers’ level were not being done correctly”.[294] Ms Wise testified that until Mr Andrejic told her of this she had no idea there might be issues with Mr Ackers’ performance and, as she put it, “I definitely did not have that technical knowledge or accounting knowledge to find these myself”.[295]

Findings from Payroll Review Document

  1. [248]
    On 29 July 2015 Mr Andrejic emailed Mr Ackers, including Ms Wise in the email, and attaching a so-called Findings from Payroll Review document.[296] It is this document which Mr Andrejic apparently relied on as warranting Mr Ackers being placed on a Performance Improvement Action Plan. It is timely to pause and review the substance of the document now.

Introduction

  1. [249]
    The purpose of doing so is not to reach a concluded view as to its findings. Indeed, despite extensive evidence about the topics of the findings, the trial was not litigated in such a way as to require or permit a concluded view as to the accuracy of most of the findings. The purpose of reviewing the document’s content is to expose the nature of the concerns it raised, because that is relevant to gauging whether the apparent reaction to the document – placing Mr Ackers on a performance management plan – involved a breach.
  2. [250]
    The first point to expose is that the description “Findings from Payroll Review” is misleading. The words “Findings from Payroll Review” appear in the top right header of each page of the six-page document in unbolded italicised type of standard size. The major, centred heading at the start of the document, in larger type, bolded and in all capital letters, is “ISSUES IDENTIFIED”. Beneath it in the ensuing pages are sub-headings with corresponding information beneath them, much of it in dot point form. The impression conveyed, presumably unintentionally, is that this document is the “Issues identified” section of some broader review document. On the known evidence it is not. There had not been a considered review of the payroll unit at all; for instance there was not a review in which there was a consultative and considered analysis of the sources of and solutions to the challenges confronting the unit. All that had occurred was that two staff from finance, Mikayla Moller and Lisa Whitton, had assembled a list of what they considered were purported errors and problems in some of the financial work of the payroll unit, listing them in the document as “Issues identified”. These reasons only refer to the document as the Findings from Payroll Review document because that was the description adopted in the case.
  3. [251]
    The issues identified in the document were set out under the following sub-headings:
  • Super cap adjustments;
  • Late lodgment of payroll tax and PAYG tax;
  • Superannuation;
  • Terminations – detailed calculation reviews; and
  • Taxation of TLSC payments (sick leave, RDO, TOIL and payments in lieu).

The document went on to cite extracts from the so-called Pacifica report and QAO interim management report said to have been considered by the un-named members of the “audit committee”, presumably the two staff from finance, on 14 July 2015.[297] The substance of the issues identified is conveniently reviewed under their respective sub-heading.

Super cap adjustments

  1. [252]
    The Payroll Review document explained a review had been undertaken of employees at or near the concessional super caps for the year and four of them were identified as requiring additional allowances to compensate for an underpayment of company super contributions. The ensuing four payments were said to be incorrect, resulting in overpayments. The documents relating to this exercise were said to consist of handwritten notes with amounts but no detailed calculations, and it was asserted calculations were not checked. The Payroll Review document explained one overpaid employee brought the topic “to management attention”[298] with the consequence the head of finance, Lisa Whitton, calculated the overpayments and required adjustments “for Paul”. Lisa Whitton allegedly instructed Mr Ackers to speak to the affected individuals prior to sending an email outlining the issue and overpayments, and he reported he had done so. It appears those persons were senior managers.[299] Lisa Whitton subsequently spoke to one of the affected employees who said he had no verbal communication with Mr Ackers and that he had only received an email.
  2. [253]
    Mr Ackers explained the super cap adjustment process was a task previously performed by Alana Tier of which he was unaware until it was raised by Lisa Whitton with him in May or June and, when it was tended to after explanation to him by Lisa Whitton, he overlooked having her check and approve the calculations he made.[300] He accepts he made mistakes in his calculations.[301]
  3. [254]
    Mr Ackers was to later email Mr Andrejic on 26 August 2015 in which he documented a number of points that he disputed “as discussed at the meeting on the 31st of July 2015”.[302] Of super cap adjustments he said:

“The statement in relation to the direction and response to the finance manager is incorrect. Lisa advised me to go and see the affected individuals personally which was undertaken. Mr Helius Visser was not around at the time (most of the MGRS were having a morning tea with the staff on Lvl Number 2) and I returned straight to Lisa’s office and advised her all were spoken to except Helius. The response I was given was that she would talk/email him directly.”[303]

  1. [255]
    Ms Whitton gave evidence she could not recall being told that.[304] Mr Ackers testified that when he later explained what occurred to Mr Andrejic, Mr Andrejic’s response was, “It was an error that you’re in trouble for”.[305]

Late lodgment of payroll tax and PAYG tax

  1. [256]
    The Payroll Review document stated payroll tax had been lodged late six out of 11 months for the 2014-2015 financial year, with the result that Council incurred charges of $465.38 for March, $409.96 for April and $140.45 for May. It was noted a late lodgment and request for extension of annual payroll tax “was not flagged with anyone” until Lisa Whitton enquired about their status.
  2. [257]
    The document further noted that PAYG had been lodged late in five out of eight pay cycles since April 2015. It was also noted that after PAYG for two pay runs had been underpaid, Mr Ackers had been emailed on 16 June and told to include those two outstanding amounts in the next payment and emailed again on 28 July reminding him those amounts had still not been included in the PAYG payments.[306]
  3. [258]
    It was highlighted in cross-examination that, by email of 20 April 2015 from Ms Moller to Mr Ackers, she indicated the PAYG tax for an earlier pay run had not included the tax for an employee’s termination and requested that the payment be included in the next PAYG payment.[307] The email went on to point out that the payroll department could look at general ledger transactions “to see each payment that has been made and can match this up to their summary sheet” and Ms Moller offered to show Mr Ackers or his staff how to look at the general ledger transactions. Mr Ackers explained that by that point the payroll unit was under such pressure there was no opportunity for him to have taken that offer up with Ms Moller.[308]
  4. [259]
    The upshot is that the errors of concern had principally occurred in the months of understaffing when Mr Ackers and his staff were carrying a sustained high workload.

Superannuation

  1. [260]
    The Payroll Review document recorded “class 3 changes are not up to date – there are 10 employees with a length of service greater than one year that have not been moved to class 1”.
  2. [261]
    This was another dispute discussed by Mr Ackers with Mr Andrejic in a meeting with him on 31 July 2015. In later documenting the nature of that dispute in an email of 26 August 2015 Mr Ackers said:

“I reiterate my statements regarding this area and the documentation is still available as offered during the meeting. There was one error performed within my department of the 10. There were a number of casual to permanent to casual not working employees and a number that no advice received was received from LG Super (documents tabled). This process was in place and maintained accordingly.

I have introduced a new procedure where a report is run at this end and is to be matched to the LG Super notification email to ensure no Employees are missed from their notification.”[309]

  1. [262]
    Mr Ackers testified of the above that it was a task performed within the payroll office though not by him and had not been a task which required checking by him.[310] He explained after the problem was raised he instigated a process of monthly advice to him on the issue.[311] Even in cross-examination counsel for the Council acknowledged Mr Ackers might not be personally responsible for the mistake which occurred.[312]

Terminations – detailed calculation reviews

  1. [263]
    The Payroll Review document listed the particulars of 14 sets of termination payments, of a total of about 126 for the year, which were reviewed to determine the accuracy of the calculations and allegedly contained errors of varying extents involving:
  • sick leave payments x 6,
  • long service leave payments x 4,
  • special leave x 1,
  • hourly rate x 1,
  • annual leave x 1,
  • leave loading x 1,
  • Workers’ compensation leave x 1,
  • RDOs x 4,
  • superannuation payments x 3,
  • marginal tax x 4,
  • ordinary pay x 3,
  • vehicle allowance and deduction x 1.
  1. [264]
    Also asserted to be errors, were:
  • absence of records of checking x 6,
  • absence of signed record x 3.
  1. [265]
    Six incorrect calculations were said to have been prepared by Mr Ackers, for two of which there were records of checking. He was recorded as checker of another incorrect calculation. Self-evidently multiple mistakes had also been made by other staff.
  2. [266]
    This was another area of the Payroll Review document disputed by Mr Ackers in the discussions at the meeting of 31 July 2015. The nature of the dispute was reiterated in his email to Mr Andrejic of 26 August 2015 as follows:

“I question the number that is officially listed as incorrect as there is the issue with CHRIS incorrectly retrospectively calculating Sick Leave and the Terminations with Payment in Lieu. The audit calculations were incorrect. I have a meeting with both Finance and HR to obtain the approval in writing of the Calculations performed within Payroll. I would like to reiterate that we have a system that, can perform this task within and should be used to remove manual preparation of these.”[313]

  1. [267]
    Mr Ackers testified he told Mr Andrejic that nine of the sets of termination payments were not incorrect and that the error was Ms Moller’s in connection with the need for a variation of tax calculation to cater for a relevant period being materially shorter than a year.[314]
  2. [268]
    Mr Ackers testified that three or four of the sets of termination payments had involved calculation mistakes by payroll staff and, in explaining why that was no surprise to him, he referred to the prevailing urgency and a risk of error because the process of termination was so manual.[315] Ms Whitton agreed in evidence that termination pays require a lot of manual input.[316]

Taxation of TLSC payments (sick leave, RDO, TOIL and payments in lieu)

  1. [269]
    It was identified by end of year processing that a number of lump sum C taxation calculations (the component for payment in lieu of notice) were incorrect - 11 of the 78 TLSC payments were said to have been taxed incorrectly because of the application of an incorrect tax rate.
  2. [270]
    Mr Ackers testified he discussed some of these with Ms Moller and the sum did not need correction because the correct rate had been applied.[317]

Pacifica report

  1. [271]
    The Payroll Review document included an extract from a so-called Pacifica report which was considered by the audit committee on 14 July 2015. The extract, in part, read:

Recommendation 3.3.1 – Monthly end Reconciliation not completed – LOW Risk

This item was marked as complete in the September 2014 Matrix on the basis that “reconciliations are now up to date”. Information provided by finance in June 2015 indicated that whilst the reconciliations had been brought up to date in 2014, the processes had subsequently lapsed in this financial year requiring further corrective action.

As a result of the changes in structure within CRC Finance Team, the reconciliation process has been moved from Payroll to Finance to ensure the reconciliations are being performed in a timely manner according to the month-end reconciliation cycle.”

QIO interim management report

  1. [272]
    The Payroll Review document quoted an extract from QIO interim management report which had been considered by the “audit committee” on 14 July 2015. This contained observations that payroll reconciliations for September 2014 to February 2015 “could not be provided to audit”, that there had been four instances where the payroll master file changes audit report, which is supposed to be run and reviewed with the fortnightly pay run, had not been included in the pay run folder and that two pay run checklist reports in September 2014 and December 2014 had not been included in the pay run folder.

Conclusion

  1. [273]
    The Findings from Payroll Review document exposed apparent errors and oversights in the operations of the payroll unit. Some of those apparent errors and oversights appeared to have been committed by Mr Ackers individually (albeit that some were in performing tasks in the area of purported expertise of the absent senior payroll officer Ms Tier). However, many were errors and oversights attributed to the payroll unit generally, with the probability being that a large proportion of them were committed by other staff in the unit. The document contained no analysis of the underlying operational cause or causes why the unit had apparently been making such errors and oversights.
  2. [274]
    It may have been uncontroversial if the document had been used to consult the supervisor and staff of the unit for their considered feedback as to whether the apparent errors and oversights identified in the document were in fact errors and oversights. That did not happen. It may have been uncontroversial had the document been used to justify the undertaking of a review of the performance of the payroll unit, properly consulting its supervisor and staff to identify the underlying causes of the occurrence of the apparent errors and oversights, including any obstacles to the unit’s effective performance and how to overcome them. That did not happen.
  3. [275]
    The controversy in this case is that Mr Andrejic used the document to move directly to targeting Mr Ackers. That was problematic not merely because there had been no meaningful consultative feedback process about the document or any apparent consideration of the most obvious likely cause of the unit’s apparently inadequate performance – its sustained inadequate staffing. It was also problematic because the Council knew there was a foreseeable risk of psychiatric injury to Mr Ackers.

Andrejic uses Findings from Payroll Review document to target Ackers

Andrejic emails Ackers on 29 July 2015

  1. [276]
    It will be recalled the Findings from Payroll Review document had been enclosed with Mr Andrejic’s email to Mr Ackers of 29 July 2015. The email said:

“As discussed with Mandy, it has come to my attention that there have been some significant performance issues arising from the payroll unit which are a great concern to me.

Attached is a list of errors that have been identified through a recent internal audit. These have been collated at my request following concerns I had in a couple of areas.

I wish to discuss these matters with you. I would like to request that you attend this meeting with me at 2pm on Friday 31 July 2015 in my office. Mandy will also be present. You may bring a Union representative or a person of your choice to the meeting as your support person. A support person is a person nominated by an employee to support the employee in meetings. A support person may be a friend, a family member, a co-worker, or other nominated person. However, a support person cannot be a fellow employee whose involvement may result in an apparent or possible conflict of interest.

If you are unable to attend this meeting, please contact me so that we can arrange an alternative time.”[318]

Meeting with Andrejic and Wise re Findings from Payroll Review document 31 July 2015

  1. [277]
    The foreshadowed meeting with Mr Andrejic and Ms Wise proceeded on Friday 31 July 2015. Ms Wise testified she did not believe she was present for the meeting but I accept she was.[319]
  2. [278]
    Mr Ackers deposed that at the meeting he was presented with the Findings from Payroll Review document, which had apparently been provided to Mr Ackers as an attachment to Mr Andrejic’s email of 29 July 2015.[320] He was told he and his staff had made multiple mistakes in processing payroll and that he as supervisor was ultimately responsible for the mistakes of his staff.[321]
  3. [279]
    Mr Ackers testified that by not having involved him in the audit process, it felt as though he was being set up:

“I felt that I – we were all working our guts out, and that they could’ve – they should’ve involved me in that process. … in going through the system, looking for former mistakes. It was as though – I felt as though I was being set up, rather than worked with. … I felt as though I should have been involved in that process to – rather than it be an audit without involving any of myself or my staff.”[322]

  1. [280]
    It is completely understandable Mr Ackers would have felt that way. Indeed, it remains unexplained, assuming Mr Ackers was not being set up, why he had not been made aware of the so-called audit so that he might contribute during its occurrence. He may have been absent on leave when Ms Moller and Ms Whitton first engaged in some checking, but he was back during the phase when they continued with their purported audit. 
  2. [281]
    Mr Andrejic was well aware he had in September 2014 told Mr Ackers to fix the staff and the system and was inevitably aware that the price paid for the ensuing approach of Mr Ackers, in which he had been supported by Ms Wise, was an exodus of malcontents and consequent prolonged understaffing of the unit. Against that background it is not apparent why Mr Andrejic asserted at the meeting that Mr Ackers’ as supervisor was responsible for the mistakes of his staff. Not even the Findings from Payroll Review document involved such an assertion. Blaming him in that way carried the flawed conclusion the mistakes were caused by his poor performance as a supervisor when Mr Andrejic had to have realised the most likely source of the unit’s apparent errors and oversights was an understaffing problem which was beyond the power of Mr Ackers’ position to resolve. Yet on the evidence of what occurred at the meeting there was no attempt at all by Mr Andrejic to evaluate whether there were any factors preventing Mr Ackers as supervisor from ensuring his unit made no mistakes, such as the unit not having the resources to do its job properly or the impact upon him personally of the prolonged understaffing of the unit.
  3. [282]
    Part of the meeting appears to have reflected a concern that pay errors not be suffered by senior people on Council’s payroll. Mr Ackers deposed he was directed to in the future provide details of calculations of payments, except for normal wage calculations, to be made to manager level staff from the level of coordinator/branch manager and above to Ms Moller for checking. It is not apparent why, if such external double-checking of additional payments was thought necessary, it was only thought necessary in respect of the senior people on Council’s payroll. It would at least have had the happy consequence for Mr Andrejic that senior managers and councillors would not be further troubled by the operational problems of an inadequately staffed unit within Mr Andrejic’s realm of responsibility.
  4. [283]
    A curious feature of the evidence of what occurred at the meeting was that Mr Andrejic did not specifically state Mr Ackers was going to be placed on a performance management plan. However, Mr Ackers deposed that immediately following the meeting Ms Wise told him:
  1. “a.
    I was to be placed on a performance management plan; and
  2. b.
    she had saved my job; because
  3. c.
    Mr Andrejic wanted me sacked but agreed to the performance management path.”[323] (emphasis added)
  1. [284]
    It is helpful to consider each of the above a., b. and c components. As to component a., the obvious inference is Mr Andrejic had earlier instructed Ms Wise that Mr Ackers was to be placed on a performance management plan.
  2. [285]
    Against the above background it is inherently implausible Ms Wise thought Mr Ackers’ performance was materially responsible for the payroll unit’s difficulties or that it was necessary to subject him to a performance management plan. That she had not been a proponent of such a course is also consistent with her lack of knowledge of what was to be managed when she spoke with Mr Ackers of the plan:

“I just said that we would be entering into a plan. There would be specifics in there that needed to be addressed. I knew there were incorrect terminations processed, and a range of other things which I didn’t know the detail on, but they would be specifically looked at as part of this plan.”[324]

  1. [286]
    The conclusion is irresistible that it was Mr Andrejic who decided Mr Ackers was being placed on a performance management plan and that his purported justification for doing so was the content of the Findings from Payroll Review document. From Mr Ackers’ perspective, the very fact that he was to be placed on a performance management plan against the above background would have indicated that he was, as he put it, being set up.
  2. [287]
    As to component b., Ms Wise was Mr Ackers’ supervisor. She conceded that as at 31 July 2015 Mr Ackers had been telling her at least since March and April 2015 that he did not have appropriate staff in the payroll office to do the work that was required, and that there were a lot of pressures on his time and that he felt overworked.[325] Against that background, while it is curious there was no positive evidence she had defended Mr Ackers to Mr Andrejic, it is likely she would have represented to Mr Ackers that she had.
  3. [288]
    As to component c., telling Mr Ackers Mr Andrejic wanted him sacked, Ms Wise testified that, as at this time, she did not know Mr Andrejic was considering disciplinary proceedings against Mr Ackers and denied having told Mr Ackers she had saved his job by getting Mr Andrejic to compromise by pursuing a performance improvement plan.[326] That Mr Andrejic wanted Mr Ackers sacked and had been persuaded to implement a performance management plan is consistent with other evidence. I readily accept it was well known to Ms Wise and that she told Mr Ackers of it. This is a significant finding. It means at a time when Council had corporate knowledge Mr Ackers was at foreseeable risk of psychiatric injury, one of Council’s managers, whose knowledge in this context was Council’s corporate knowledge, told Mr Ackers that the manager who intended to and did pursue him down the performance management path, wanted him sacked.
  4. [289]
    The attribution of vicarious liability to a corporate entity for the conduct of its employee, requires a sufficiently close connection between that conduct and the conduct the employee was engaged to perform, to conclude it was conduct carried out in the course of that employment.[327]  The authority in which an employer clothes an employee may of itself heighten the risk of harm flowing from conduct abusing that authority, making it easier to infer the conduct was done in the course of employment.[328] In each of their dealings with Mr Ackers that day both Ms Wise and Mr Andrejic were each doing so as persons with power over his management as an employee, in the course of their employment, as managers. Their actions cannot be disowned as beyond Council’s responsibility. By their conduct as staff invested with managerial power over Mr Ackers, Council was in effect representing to Mr Ackers that he was to be subjected to a performance management plan by Council in the context of Council having wanted to sack him.

Performance Improvement Action Plan implemented

Preparation of performance review action plan

  1. [290]
    The above meeting of 31 July 2015 was on a Friday. The following Monday, 3 August, Ms Wise commenced preparing a performance review action plan in respect of Mr Ackers. The meta data for that document reveals she continued to edit it during the ensuing two working weeks, up to and including Friday 14 August, after which she went on extended leave.[329] Mr Andrew Moore thereafter acted in her position. He thus became Mr Ackers’ line supervisor and the person responsible for implementing the performance review action plan.
  2. [291]
    The level of ignorance of Ms Wise and Mr Moore as the designated supervisors of this process was surprising. Ms Wise admitted she did not examine the information about mistakes from the Findings from Payroll Review document to “support or deny whether they were mistakes”.[330] Mr Moore had never acted in a position supervising the area of payroll.  He had no technical understanding of Mr Ackers’ role or the alleged mistakes.[331]
  3. [292]
    Further, Mr Moore had not had any training about implementing performance management plan policy.[332] He could not recall having been told of Mr Ackers having been stood down because of a tremor or of Mr Ackers’ disclosure to Ms Wise that he was on antidepressants.[333] He agreed he would have been concerned to implement the performance improvement plan appropriately had he known there were concerns about Mr Ackers’ mental health.[334]

First performance management meeting 17 or 25 August 2015

  1. [293]
    At least two weeks had passed after the meeting of 31 March before Mr Ackers heard more about the flagged performance management plan. Mr Ackers was particularly upset by being forced to wait weeks, after being told he was being placed on performance management, before anything was provided to him.[335] He felt Council waited until Ms Wise went on leave so that they could, in Mr Moore, use an unskilled supervisor with no knowledge of the events of the preceding months and the pressure Mr Ackers was under.[336]
  2. [294]
    Mr Ackers was eventually called to Mr Andrejic’s office where he met with Mr Andrejic and Mr Moore and was presented with a Performance Improvement Action Plan under which Mr Moore was designated as “Manager/Supervisor” for the plan.
  3. [295]
    The exact date of this meeting with Mr Andrejic and Mr Moore, at which the Performance Improvement Action Plan was first produced to Mr Ackers, is a little unclear. Mr Ackers deposed it was in the week of 17 August 2015.  Mr Moore accepted when it was put to him in cross-examination that the meeting was on 17 August but that just seemed to be acquiescence to the likely accuracy of what was put rather than the product of any actual recollection.[337] Indeed it was a hallmark of Mr Moore’s testimony that he asserted little recollection of any detail of these events. The metadata for the document shows Mr Moore accessed the document for the first time shortly before 9am on 25 August, when he also printed it. The various copies of the Performance Improvement Action Plan record its start date as 25 August 2015 and its review meetings as commencing from 26 August 2015.[338] An email sent to Mr Andrejic by Mr Ackers suggests the meeting date may have been 25 August 2015, with the first performance management review meeting on 26 August.[339]
  4. [296]
    The upshot appears to be that having been told on 31 July he would be subjected to a performance management plan, on the decision of a man he was told wanted to sack him, Mr Ackers was left to ruminate on that upsetting knowledge until finally being placed on the plan over three weeks later, on 25 August.

Ackers is told there is no coming back

  1. [297]
    Mr Ackers deposed of the meeting that he was presented with a Performance Improvement Action Plan which, according to him, identified alleged mistakes made while he was on forced stand-down. More importantly, he deposed he was told by Mr Andrejic, “there is no coming back from here”, and was “not given the opportunity to understand what the claimed mistakes were or try to explain them”.[340]
  2. [298]
    Mr Ackers felt unsupported when the plan was presented to him and having been told there was no coming back from the plan, felt Mr Andrejic wanted to terminate him and the plan was a pathway to termination.[341]
  3. [299]
    Mr Moore, who was still employed at Council, seemed unable to recall much detail about this or any of the ensuing meetings in which he participated with Mr Ackers. Of this meeting he testified:

“I recall after detailing what is required to be achieved that – that John Andrejic stated that if these could not be achieved, if these improvements could not be successful, that there would be no coming back from it.”[342] (emphasis added)

  1. [300]
    Mr Moore accepted in cross-examination that Mr Andrejic had said the words “There’s no coming back from this”.[343] That concession occurred in isolation. A concession that Mr Andrejic at that point was saying “there is no coming back from this” is not the same as him saying there would be no coming back from this “if” Mr Ackers did not meet the plan’s requirements. Whether Mr Moore was conscious of that distinction in making that concession is unclear. However, later in cross-examination he testified Mr Andrejic had said:

“Paul, this is what needs to be achieved. If we can’t, there’s – there’s no coming back from that.”[344]

  1. [301]
    It is unlikely Mr Andrejic would have been so brazen whilst in the presence of Mr Moore, to have stated without any qualification that there would be no coming back, so I accept the comment was qualified in the way explained by Mr Moore. Nonetheless, the making of the comment to Mr Ackers, a man to whom risk of psychiatric injury was foreseeable, by a man he had already been told had wanted to sack him, carries substantial evidentiary significance.
  2. [302]
    The meaning conveyed by the comment was that Mr Ackers’ job performance had become so unsatisfactory that Mr Ackers would lose his job if he did not meet the requirements of the Performance Improvement Action Plan. Yet the premise for purportedly concluding his performance had been unsatisfactory, and thus the conclusion itself, was flawed and unfair. The conclusion defies objective justification and I infer it was not arrived in good faith. The Findings from Payroll Review document did not involve, and did not prompt, any material analysis or evaluation of the underlying operational cause of why the purported errors and oversights to which it referred had been occurring in the unit. It is incomprehensible that the cause could genuinely have been thought to be poor performance by a supervisor with no history of poor performance reviews, when the unit’s recent history of sustained inadequate staffing, and the accompanying inevitability of error and oversight, presented so obviously as the likely cause.

Tasks

  1. [303]
    Mr Ackers testified a new version of the performance management plan would be printed and given to him at the conclusion of each meeting.[345]
  2. [304]
    The tasks listed in the “tasks” column of the earliest available copy of the Performance Improvement Action Plan were:

“The following changes need to be implemented immediately:

  • Change the termination process and master document to ensure correct calculation formulas and versioning of document.
  • Correct termination calculations are to be provided to Finance (1 days notice) for review prior to processing of payment (MM)
  • Proposed changes or adjustments to all CEO, Councillor and management salary changes and adjustments to be reviewed by Finance prior to implementation and the expectation is that these will be correct when reviewed by Finance (MM)
  • Confirmation of payment of PAYG and Payroll tax by the due date to be reported to Finance (MM)

Payroll Clearing account reconciliations to be handed back to Payroll by end of August.

Clearing account reconciliations to be completed within 14 days of the end of each month and checked by Finance and the expectation is that these will be correct when reviewed by Finance (MM).

Staff numbers back to normal (5 FTE + DW, LA).

Complete probationary period for Kirsty with appropriate training and proficient in completing a payroll process end to end.

Complete a skills matrix for all payroll and finance officers.

Confirm a training schedule and a series of dates for:

  • Complete Frontier payroll system functionality
  • Speed of Trust
  • Meetings with John Carr

Maintain normal hours to be available to support and guide staff Eg 8.30 start.”[346]

  1. [305]
    It is obvious that a number of those tasks could not have been directly connected to Mr Ackers’ prior performance. For instance, Ms Wise confirmed the clearing account reconciliations had been done by finance because the payroll unit was too busy since prior to Mr Ackers commencing in his position.[347] In a similar vein, the task of completing a probationary period for Kirsty with appropriate training was merely a reference to the normal process that would occur in consequence of Kirsty Brangwen, the successful applicant for Ms Tier’s former position, having recently commenced.
  2. [306]
    The reference to “staff numbers back to normal (5FTE+DW, LA)” is difficult to reconcile with the known evidence. “DW” is obviously a reference to David Wier, and Ms Wise explained the entry “LA” was a typographical error and that it should have read “LC” in a reference to Leanne Cracknell. [348] Setting to one side the feature that they only returned to work in August, and Mr Wier to a different part of Council, the entry suggests there were normally five full time employees in addition to the two timekeepers. Ms Wise struggled to explain how the normal staff numbers of the unit were five full-time employees plus the two timekeepers in circumstances where it had been the norm since Mr Ackers’ commencement that so-called “floaters” from finance branch, such as Judy Fleur, had been assisting.[349]
  3. [307]
    To the extent any content of the plan reflected that there were perceived performance issues to be tended to, they went to the operational processes of the unit. In short, the content of the plan at commencement did not shed additional light upon why it was necessary to impose the plan upon Mr Ackers. To put it differently, its content does not alter my above conclusion that the premise for purportedly concluding Mr Ackers performance had been unsatisfactory and thus placing him on the Performance Improvement Action Plan was flawed and unfair.
  4. [308]
    It is important to appreciate the plan on which Mr Ackers was placed was not merely a performance management plan. It is well known that performance management planning and review are a modern tool of management and, in many organisations, it is standard practice that all employees are supposed to be the subject of a performance management plan. Such plans allow for clarity of expectations about performance, provide for cyclical review and feedback, revision of expectations and the identification of aids to performance, such as training needs. The commencing content of the Performance Improvement Action Plan here was reminiscent of the type of content found in ordinary performance management plans. Making a virtue of necessity, counsel for the Council highlighted the tasks expected by the plan imposed upon Mr Ackers did not involve innately unreasonable employer expectations, and (with the exception of the difficult to understand reference to staff numbers) that appears to be so. Similarly, Council’s counsel repeatedly suggested that if mistakes were being made, it was reasonable to expect his employer would want to fix the situation up to avoid such mistakes in the future.[350] The implication appeared to be that it was therefore somehow innocuous that Mr Ackers was subjected to a Performance Improvement Action Plan; that it was some sort of benign exercise in improving the performance generally of the unit he managed. This “nothing to see here” type characterisation of what was occurring ignored two obvious contextual points.
  5. [309]
    Firstly, it ignores that the plan was not a common garden performance management plan. Rather, it was a Performance Improvement Action Plan, imposed on the premise there had already been unsatisfactory performance by Mr Ackers. Secondly, it fails to recognise the folly in Council’s approach to placing Mr Ackers on the Plan. There was a bona fide corporate interest in addressing the purported problems raised by the Payroll Review document. Council was not obliged to sit back and do nothing for fear of triggering a psychiatric injury to Mr Ackers. It would not, for example, have exposed Mr Ackers to unnecessary risk of psychiatric injury if it undertook a process of inquiry and consultation in order to understand and assess how to address the underlying cause of why those problems were occurring. But to lurch directly to a Performance Improvement Action Plan while making comments indicating Mr Ackers’ continued employment was in peril, signalled to Mr Ackers that Council was unfairly blaming him as the cause of those problems. Such an approach unnecessarily placed Mr Ackers at risk of psychiatric injury and, against that background, so did the continuing pursuit of the Plan.

Non-compliance with administrative instruction

  1. [310]
    The process by which Mr Ackers was placed upon the Performance Improvement Action Plan was supposed to comply with Council’s administrative instruction “Managing performance issues”.[351] That administrative instruction’s stated intent is:

“To outline the process for addressing unsatisfactory performance via informal and formal performance management mechanisms.” (emphasis added)

  1. [311]
    There then follows the “Provisions” section of the document which commences:

“Council’s performance management processes will be underpinned by the principles of procedural fairness, natural justice, objectivity, equity, accountability and confidentiality.”

  1. [312]
    It may be observed immediately that the instruction’s process had not been enlivened because the premise for initiating it, the “unsatisfactory performance” to be addressed, was not present. As earlier explained, the conclusion Mr Ackers’ performance had been unsatisfactory was flawed and unfair. It was not underpinned by any objectivity. The administrative instruction and the imposition of a Performance Improvement Action Plan it provided for, was inapplicable at the threshold because there was no basis to in good faith conclude the stage had been addressed that there was unsatisfactory performance to be addressed.
  2. [313]
    Under the sub-heading “Initiating performance discussions” the administrative instruction’s content includes the following:

“As soon as the supervisor becomes aware of any issues or concerns regarding an employee’s work performance and/or behaviour, the supervisor shall organise to meet with the employee to discuss. When requesting an employee to attend a performance meeting, the supervisor shall:

  • approach the employee in a respectful and tactful manner (i.e. away from team members)
  • let the employee know in advance the purpose of the meeting
  • advise them to bring a support person or union representative

In the meeting the supervisor will need to provide the employee with clear evidence or examples to demonstrate unsatisfactory performance and/or behaviour. In this discussion it is important for the supervisor to evaluate whether there are any factors that are preventing the employee from performing. These may include but are not limited to:

  • inadequate skills/knowledge or training
  • faulty job design
  • problems with co-workers
  • unsuitable work environment
  • illness/injury
  • personal circumstances
  • indolence
  • not having the resources and tools to do the job.”[352] (emphasis added)
  1. [314]
    The content under the sub-heading “Initiating performance discussions” continues:

“The supervisor will need to clearly explain their expectations to the employee with respect to performance and behaviour, and ensure that the employee understands these expectations.

If the employee raises a concern that the expectations are unreasonable, the supervisor shall provide the employee with an opportunity to discuss.

Some options to address performance may include but are not limited to:

  • job design
  • team building or counselling where there are co-worker problems
  • reasonable adjustment where the workplace environment is unsuitable
  • rehabilitation, reasonable adjustment or retirement for cases involving ill-health
  • training and development or deployment, if competencies are insufficient
  • counselling in cases where personal circumstances adversely affect work practice
  • performance improvement action plan

It is important to document any performance management discussions and proposed actions. A record of performance management form #3083903 may be completed and forwarded to Human Resources to be placed on the employee’s personnel file.”

  1. [315]
    Later in the administrative instruction, under the sub-heading “Commencing a formal performance improvement action plan”, the administrative instruction includes the following:

“In some cases the supervisor may initiate a formal action plan (Performance improvement action plan #3836895) to clearly outline agreed goals and target dates for improvement

Employees will be responsible for achieving the performance requirements of their position; this includes following any performance plan. The supervisor will need to advise the employee that if they do not achieve agreed goals/expectations set out in the performance plan, the process may be escalated to a disciplinary level.”[353]

  1. [316]
    It is apparent from the administrative instruction that the process of “Initiating Performance Discussions” precedes the stage at which a Performance Improvement Action Plan is to be initiated, if indeed that option is to be used at all. It will be recalled the only meeting which may fit the description of the meeting which, pursuant to the “Initiating Performance Discussions” provisions of the administrative instruction, the supervisor “shall” organise, was the meeting of 31 July. The next relevant meeting was the meeting of 25 August when Mr Ackers was placed on the Performance Improvement Action Plan and told there was no going back from here.
  2. [317]
    Neither the meeting of 31 July, or of 25 August for that matter, met the administrative instruction’s requirements of the meeting referred to under the heading “Initiating Performance Discussions”. I have already found there was no apparent consideration or evaluation of the underlying operational causes of the purported errors and oversights raised by the Findings from Payroll Review document. It is clear the evaluation required by the Administrative Instruction did not occur.  If it had it would have identified the inadequate staffing of the unit as a very obvious resourcing factor preventing Mr Ackers and the unit he supervised from performing effectively.  
  3. [318]
    There was no evaluation either of the impact the prolonged working hours and sustained pressure of managing an inadequately staffed unit had had upon Mr Ackers and his efficacy. Further, there was no consideration given to the accumulation of corporate knowledge listed at paragraph [226] above, culminating in the knowledge Mr Ackers was on medication for depression. It is extraordinary that such an accumulation of factors likely to be preventing Mr Ackers from performing fully effectively could have been so ignored.
  4. [319]
    The administrative instruction was not complied with.

Duty and breach

  1. [320]
    The articulation of duty and breach in this case could be expressed in many ways and it was in the pleadings. The ensuing articulation expresses them in a way which is consistent with the relevant threads of the pleaded duties and breaches but more sparsely so.
  2. [321]
    I have already concluded that from 9 July 2015 Council had corporate knowledge of a foreseeable risk of psychiatric injury to Mr Ackers and a duty to take all reasonable steps to avoid unnecessarily exposing Mr Ackers to that risk, as is pleaded at paragraph 5 of the Amended Statement of Claim.
  3. [322]
    Of the requirements, that is, duties, pleaded at paragraph 5 to flow from that duty it is sufficient, to focus upon three of them, namely:
  1. “(c)
    avoid exposing the Plaintiff to employee behaviours and workplace circumstances which created a foreseeable risk of psychiatric injury;
  2. (d)
    comply with its policies and procedures in respect of managing employees;

  1. (f)
    support the Plaintiff when undertaking performance improvement processes by entering into, and pursuing, the process in good faith;

...”

  1. [323]
    I readily conclude duty (c) was a duty owed, it effectively being a re-statement of the duty to take all reasonable steps to avoid unnecessarily exposing Mr Ackers to foreseeable risk of psychiatric injury, cast with a focus upon employee behaviours and workplace circumstances.  The obviously relevant workplace circumstances here are the circumstances in which the imposition of a Performance Improvement Action Plan was pursued and persisted with.  The relevant behaviours are the behaviours of managers, principally Mr Andrejic, in those circumstances. The duty implicitly included the duty to adequately supervise those behaviours.
  2. [324]
    Duty (f), while cast as requiring support, in substance requires that performance management of Mr Ackers was entered into and pursued in good faith. Again, whether such good faith should be a requirement of the duty will depend upon whether it was foreseeable that pursuit of performance management of Mr Ackers in bad faith may cause psychiatric injury. It is obvious that it would be foreseeable if done in circumstances from which Mr Ackers would realise that is what was occurring.
  3. [325]
    The behaviours and circumstances I have found in connection with the imposition of the Performance Improvement Action Plan are extraordinary and would have been extremely distressing to an employee of normal fortitude. A purported audit exercise discovered apparent errors and oversights made in the payroll unit, against a background where errors and oversights had been made inevitable by Council’s prolonged inadequate staffing of the unit. Without even a pretence at an exercise evaluating the underlying cause of the unit making errors and oversights, Council knowingly proceeded on the flawed and unfair premise that the cause was the poor performance of Mr Ackers as supervisor. This occurred notwithstanding that his previous performance reviews had been satisfactory and that the obvious most likely cause was that the unit had been inadequately staffed for a sustained period. The circumstances compel the inference the plan was imposed in bad faith, an inference I am fortified in drawing by the unexplained absence of Mr Andrejic as a witness.[354] Further, notwithstanding the accumulation of Council’s corporate knowledge of the pressures Mr Ackers had been under because his unit was inadequately staffed and of the signs which made risk of psychiatric injury to him foreseeable, Council gave no consideration to Mr Ackers’ psychiatric state in deciding to place him on the Performance Improvement Action Plan. To the contrary, he was told by one its agents with management authority over him (Ms Wise) that another of its agents, with even higher management authority (Mr Andrejic), had wanted to sack him and he was told by the latter agent there was no coming back if he did not meet the requirements of the plan. Finally, there was no intervention by Council to stop the continued pursuit of the plan.
  4. [326]
    From the perspective of a reasonable person in the position of Council, with its corporate knowledge of the sustained work pressure Mr Ackers had been under and the accumulation of indications which had made risk of psychiatric injury foreseeable, the pursuit of Mr Ackers in this way, after he had given his all in trying to keep the unit functioning, meant the risk of psychiatric injury was substantial. A reasonable person in Council’s position would have acted to avoid such a pursuit in the first place, as well as intervened to stop it. The burden of so doing was minor whereas the probability of a psychiatric injury of some seriousness to this struggling and mentally frail employee appeared significant.
  5. [327]
    Having applied the principles in s 305B Workers’ Compensation and Rehabilitation Act 2003 (Qld) generally I note they apply in the same way to the individual breaches now identified, because the breaches did not occur in isolation and occurred as part of a singular, connected course of events. The individual breaches are also iterations of a collective breach of Council’s duty of care to take all reasonable steps to avoid unnecessarily exposing Mr Ackers to risk of psychiatric injury.
  6. [328]
    As to the individual breaches, duty (f) was breached by the failure to embark upon the Performance Improvement Action Plan in good faith.[355] Duty (c) was likewise breached by that failure. Duty (c) was also breached by the failure to consider the prolonged inadequate staffing of the payroll unit,[356] the failure to consider the psychiatric state of the defendant[357] and the failure to intervene to stop the pursuit of the Performance Improvement Action Plan.[358] Duty (d) was breached in that the administrative instruction was not complied with.[359]
  7. [329]
    None of this is to suggest Council was obliged to sit idle when it was realised errors and oversights were apparently occurring in the payroll unit.
  8. [330]
    Before leaving the topic of breach of duty some brief reasons should be given as to duty and breach in connection with hours of work and inadequate staffing. After 9 July, when Council knew of the foreseeability of psychiatric injury, it had taken steps to reduce the very long additional hours Mr Ackers had been working, although he continued to work somewhat longer than ordinary working hours beyond then. In a similar vein, some easing in the staffing shortfall came with the commencement of Ms Brangwen in mid-July with the “temp” Ms Lukawski staying on, although this still left the unit with less than the pre-existing normal complement of staff identified earlier in these reasons.
  9. [331]
    Dealing firstly with the topic of long hours, in light of what Council knew from 9 July and particularly bearing in mind its knowledge of Mr Ackers’ past significant pattern of working long hours, it is arguable that Council’s failure to supervise Mr Ackers sufficiently to ensure that he only worked ordinary hours constituted a breach of its duty to avoid exposing him to workplace circumstances creating a foreseeable risk of psychiatric injury.[360] In my conclusion it was not a breach because even knowing what Council knew by that stage, the risk that Mr Ackers would suffer a psychiatric injury from working only an hour or so additional to ordinary hours each day was of low probability and, for that reason, a reasonable person in the position of Council is unlikely to have taken precautions greater than Council in fact did, which was to instruct Mr Ackers to work ordinary hours.
  10. [332]
    As to the continued but gradually easing inadequacy of staffing, it should have been obvious to Council acting reasonably that the sustained understaffing of the unit is what had caused Mr Ackers to be working long additional hours for a sustained period. Having properly directed Mr Ackers to cease working such long hours, Council knew it had removed one of the means of the unit endeavouring to discharge its obligations whilst understaffed, namely Mr Ackers working additional long hours. This inevitably heightened the stress upon the payroll unit, including Mr Ackers, of it being understaffed. Council nonetheless continued to fail to adequately staff the payroll unit until at least 10 August 2015 when Ms Cracknell returned to work. It is also arguable whether this failure was a breach of Council’s duty to avoid exposing Mr Ackers to workplace circumstances which created a foreseeable risk of psychiatric injury.[361] In my conclusion the risk was not insignificant and was rendered all the more foreseeable by the removal, proper as it was, of Mr Ackers’ option of working long additional hours as a means of coping with the inadequate staffing of his unit. Council had previously adopted the short-term solution of temporarily injecting additional staff from finance into the payroll unit. It could readily have done so again to assist in the relatively short time during which the inadequacy of staffing continued. That relatively low short-term burden and the material probability of a potentially serious psychiatric injury meant that a reasonable person in the position of Council would have implemented that short-term precaution and the failure to do so was a breach of its duty of care.
  11. [333]
    Before considering whether Council’s breaches of duty caused Mr Ackers’ injury it is necessary to canvass the facts of what occurred after Mr Ackers was placed on the Performance Improvement Action Plan. Those facts are relevant to causation and also confirm the aforementioned failure to intervene to stop the pursuit of the Performance Improvement Action Plan.

Breach unassuaged by ensuing review meetings

Mr Ackers disputes alleged errors

  1. [334]
    On 26 August 2015 Mr Ackers emailed Mr Andrejic stating he had reviewed “documentation” given to him the previous day regarding his performance management plan.[362] The email stated there was no need for Mr Ackers to meet with Mr Andrejic “at the moment” as he would be having his first “weekly” meeting with Mr Moore that afternoon and could clarify points there. However, the email explained:

“As the letter I received is an official document I need to notify you officially that I dispute (as discussed at the meeting on the 31st July 2015) a number of points within decision which I have outlined these below.”

  1. [335]
    It is not apparent what document he meant was an “official document” or what “decision” he was referring to. The email proceeded to provide factual detail under three headings: “Super Cap Adjustments”, “Superannuation” and “Terminations”. They were some of the headings in the Findings from Payroll Review document. The email concluded:

“As discussed I confirm my understanding of the process and look forward to not only meeting but exceeding expectations on a personal performance level.”

The ensuing performance management review meetings

  1. [336]
    Mr Ackers deposed that subsequent to the first of the ensuing performance management review meetings, inferentially that of 26 August 2015, he participated in four further performance management review meetings with Mr Moore on 2, 9, 16 and 23 September 2015.[363] Mr Ackers’ pleading to that effect was admitted by Council, though in cross-examination it was put to and seemingly accepted by Mr Ackers that there was no meeting on 2 September because he was in Sydney attending a so-called Frontier Conference.[364]
  2. [337]
    At one stage in cross-examination Mr Ackers claimed that on his first meeting with Mr Moore, inferentially the one after the joint meeting in which Mr Andrejic had made the comment about “there’s no coming back from this”, Mr Moore apologised to him and told him the following:

“I’m sorry that I have to do this. John Andrejic has informed that it has to be done as per what he said yesterday. There’s no coming back.”[365]

  1. [338]
    I had the impression that in giving that evidence Mr Ackers had inadvertently conflated his interpretation of Mr Moore’s position regarding him with what Mr Andrejic had said to him. The probability is that Mr Moore, who had been a friend of Mr Ackers, had been apologetic to Mr Ackers for having to engage in the process with him. But the additional comment attributed to him by Mr Ackers is more likely to have reflected Mr Ackers’ perception of what was going on rather than what was actually said by Mr Moore. In any event none of that alters the above discussed significance of Mr Andrejic’s “no coming back from here” comment.
  2. [339]
    Mr Moore’s recollection was that the meetings were conducted weekly, as his above-mentioned email of 26 August suggests.[366] In exhibit 48, the earliest version of the document produced, the section regarding frequency of review meetings was endorsed “fortnightly Wed 3.00 pm - From 26 August”. However, by the next available version in time of the plan – exhibit 49 – the above endorsement has the word “weekly” where the word “fortnightly” previously appeared.
  3. [340]
    It was asserted during the trial that Council could not locate the commencement version of the plan and it was never exhibited. All the exhibited versions have dated entries in the comments section where, according to the document, entries are supposed to be made to indicate whether expectations were met in respect of the tasks set in the “Tasks” column. The most recent of the dated entries are: for Exhibit 48, 28 August 2015; for Exhibit 49, 9 September 2015; for Exhibit 50, 16 September 2015; and for Exhibit 6 PAA12, 22 September 2015.
  4. [341]
    The tasks in the earliest available plan were recited earlier in these reasons. In the next available Performance Improvement Action Plan in time the only additional entry to the task column was:

“Other Payroll issues/opportunities/Successes”.[367]

No changes to the task column appeared in any subsequent plans.

Comments

  1. [342]
    It is obvious from the content of the “comments” column for the added task description “Other payroll issues/opportunities/successes”, that, after a solitary piece of positive feedback on 27 August, it was used to progressively record alleged errors and failings. That it was used repeatedly in that negative way would only have reinforced Mr Ackers’ impression that a process he regarded as a set up was still not going well for him.
  2. [343]
    It is apparent from the content of the four copies of the Performance Improvement Action Plan in evidence that there were a greater number of dated additions by Mr Moore to the comments section of the document than there were meetings.
  3. [344]
    Mr Moore accepted that many of the comments related to mistakes that had been made by other people who worked in the payroll office.[368] He conceded the way the performance management plan worked was that mistakes, no matter who made them within the payroll unit, were attributed to Mr Ackers.[369]
  4. [345]
    A surprising aspect of Mr Moore’s evidence was his lack of memory of the detail of the tasks and comments in the Performance Improvement Action Plan and how little operational content knowledge he had. Mr Moore acknowledged he had no technical understanding of Mr Ackers’ role.[370] Mr Ackers felt the use of Mr Moore as a supervisor “who knew no better” was part of Mr Andrejic’s agenda to terminate him.[371]
  5. [346]
    Mr Moore conceded that Lisa Whitton and Mikayla Moller were feeding information to him and he was simply writing it in the performance management plan comments.[372] Ms Whitton could not recall any specifics about that, merely testifying if other items had come to her attention they “would have been reported through”.[373]
  6. [347]
    Mr Moore agreed that while he was acting in Mandy Wise’s absence he was not present in the payroll office observing its activity or how busy it was.[374] Mr Moore accepted he was told by Mr Ackers that there were insufficient staff to complete all the jobs in the payroll office efficiently - a concern because one of the plan’s tasks was to reduce the number of staff.[375] He agreed Mr Ackers told him that reducing the staffing numbers, as contemplated by the plan, would reduce his ability to run the payroll office.[376]
  7. [348]
    Mr Ackers did not agree with many of the comments or their accuracy[377] and Mr Moore was ill-equipped to judge the correct position. On this topic there was the following telling exchange in cross-examination:

“So when Ms Moller and Ms Whitton provided you with information, you had to rely upon what they said; correct?---Yes.

And when Mr Ackers explained to you what was happening with respect to any specific complaint, it was difficult for you to know whether what he was saying was correct or not, wasn’t it?---Yes. Well, it would have been hard for me to refute. Yes.

And so you – you were really in a position where you were being told by Ms Whitton, who by the time you were into the action plan was the chief financial officer, that what Mr Ackers was saying wasn’t right; is that right?---I don’t recall specifically, but that would be right. Yes.”[378]

From Mr Acker’s perspective such a process would have reinforced, not assuaged his concerns.

  1. [349]
    There was much cross-examination on the minutiae of the accuracy of the comments. Its essential theme was that problems were identified and they needed to be addressed and Mr Ackers could not have a complaint about that. This rather overlooks that, even accepting the comments were accurate and that some did relate to individual errors by Mr Ackers, a substantial proportion of them related to the performance of the payroll unit as distinct from Mr Ackers’ individual performance, so that the unit’s performance problems were effectively being individualised as his performance problems. When that feature of the process is considered in light of the fact comments were being added to the plan other than at meetings with Mr Ackers, by a manager without relevant operational knowledge, so that the information was likely coming from other persons, it is scarcely surprising the process did nothing to dispel Mr Ackers’ perception it had been entered into in bad faith.
  2. [350]
    The fact that in the course of the Performance Improvement Action Plan being carried out there was a piece of positive feedback from Mr Andrejic and that Mr Ackers was approved to attend a conference in Brisbane were also relied upon in urging Council’s beneficence. The problem remains for Council that such isolated positives in the context of an accumulating series of negatives being addressed by the Performance Improvement Action Plan were woefully inadequate to counter the risk of psychiatric injury created by council having implemented the plan in bad faith. Having created that risk by the context and manner in which it imposed the plan the most obvious means for Council to try and avoid psychiatric injury arising from that was to cease the pursuit of the plan. It did not.

The final throes

Mr Ackers’ September decline

  1. [351]
    Mr Ackers deposed he felt unsupported throughout the performance management plan meetings, despite being visibly upset and, as he put it, “I was just continually kicked until I broke completely”.[379]
  2. [352]
    Mr Ackers deposed that he “was teary and very upset” during performance management meetings on 2, 9 and 16 September 2015 and that after each of them he was physically ill outside of the office in the presence of Mr Moore.[380] Council’s Further Amended Defence admitted Mr Ackers was teary and crying in one of the performance management meetings and was seen by Mr Moore to be physically ill after one of those meetings.[381] I accept Mr Ackers was teary at the meetings.
  3. [353]
    I am fortified in that conclusion by Mr Bosworth’s evidence that in the last eight weeks before she no longer saw Mr Ackers at Council there were a couple of times when she saw Mr Ackers in tears at work.[382] One such occasion was after Mr Andrejic spoke to Mr Ackers in a loud voice with hands on hips.[383] She explained she then saw “Mr Ackers leaving and he was in tears and Mr Andrejic just walked off”.[384]
  4. [354]
    Mr Moore conceded that at the meetings of 2 and 9 September 2015 Mr Ackers appeared withdrawn and “not his usual self”.[385] Mr Moore testified that at the second-last review meeting he held with Mr Ackers, which appears to have been on 16 September 2015, Mr Ackers had a sense of defeat about him, was upset, shaking and started to cry.[386] Mr Moore deposed that five to 10 minutes after the meeting he saw Mr Ackers with Ms Baker in the cigarette smoking area outside and Mr Ackers looked very distressed “like he was going to throw up”.[387] Mr Moore confirmed in cross-examination that Mr Ackers was bent over and appeared to be dry-retching.[388] Mr Moore asserted he would have reported what he had witnessed of Mr Ackers’ state, saying he would have spoken to his colleagues in human resources and to Lisa Whitton though he was uncertain to whom he had reported it.[389]  In cross-examination Mr Moore conceded that he could not in fact recall whether he had reported what he had witnessed to anyone and could not recall how it came to be that Rachel Faithful from human resources attended his next meeting with Mr Ackers.[390]

22 September 2015 meeting with Posgate

  1. [355]
    Ms Posgate, the manager of human resources, testified Mr Ackers contacted her on 22 September 2015 and asked if he could catch up with her offsite to speak about his employment.[391] She testified at their ensuing meeting at a coffee shop he raised concerns about the performance management plan “that in his mind it wasn’t being set up for success”. She testified they spoke about the nature of the payroll supervisor role, that it was a position with “an element of hands-on type work which he indicated it had been some time since he had been on the tools, so to speak”.[392] She conceded in cross-examination that Mr Ackers told her in this conversation that Mr Andrejic “just did not want him to be employed at the Council anymore”.[393] She testified to telling Mr Ackers, “If you’re not enjoying it, and it’s not a good fit for you, then sometimes it’s like – it’s like a bad relationship. You’ve just got to know when to say goodbye.”[394] Ms Posgate testified Mr Ackers did not exhibit any shaking in his hands at their meeting on that day.[395] On the other hand Ms Chapman, who met him for coffee the following day after he was stood down, observed that his hand was shaking and he was teary.[396]

23 September 2015 direction to attend doctor

  1. [356]
    Mr Ackers deposed that on 23 September 2015 Ms Faithful attended the performance management meeting between Mr Moore and Mr Ackers. He deposed that at the conclusion of the meeting she provided him with a letter directing him to attend upon a doctor.[397]
  2. [357]
    Mr Ackers testified Ms Faithful told him he was “being stood down on a combination of medical grounds and … no improvement”. Of the latter he asserted she said there was no improvement in his performance.

24 September 2015 Mr Ackers attends doctor

  1. [358]
    On 24 September 2015 Mr Ackers attended Dr Rajpal, a general practitioner, who provided him with a leave certificate indicating that he was unfit for work. The doctor’s records noted Mr Ackers stated his “manager wants to get rid of him” and he was experiencing poor sleep, appetite and energy levels but no suicidal thoughts. Management of his depression was discussed.[398]

No return to work

  1. [359]
    Mr Ackers deposed that after 24 September 2015 he had not heard from anyone from Council so he rang Ms Chapman. He deposed he met her for coffee and she provided him with workers’ compensation forms, advising he should go on workers’ compensation. He deposed to completing the forms there and then and handing them back to Ms Chapman.[399] He has not worked since.

Causation

  1. [360]
    It is clear Mr Ackers suffered a psychiatric condition in connection with events in the workplace in 2015. He deposed he has been unable to return to any form of employment since 24 September 2015. His symptoms are long entrenched, although the expert psychiatric witnesses diverged as to their likely degree of future improvement, a topic returned to in discussing quantum.

Diagnoses

  1. [361]
    Various records of Mr Ackers many attendances upon medical practitioners since he ceased work and of their opinions were exhibited. They include the following illustrative information about the progression of Mr Ackers’ condition and how it has been diagnosed since leaving work.
  2. [362]
    On 20 October 2015 Mr Ackers was diagnosed with an adjustment disorder with mixed anxiety and depressed mood by Dr Alagarsamy.[400] Records from Omega Health indicate Mr Ackers was not sleeping well and was teary with a poor appetite.
  3. [363]
    On 21 December 2015, Mr Ackers was diagnosed with an adjustment disorder with anxiety by Dr Alagarsamy.[401]
  4. [364]
    On 8 January 2016 medical notes indicate Mr Ackers had developed suicidal ideation after being advised that his WorkCover claim was unsuccessful (he later successfully appealed that decision).[402]
  5. [365]
    Mr Ackers was admitted to the Cairns Clinic, a private psychiatric hospital, for treatment related to anxiety, depression and alcohol abuse from 13 January 2016 to 28 April 2016.[403]
  6. [366]
    On 23 February 2016, Mr Ackers was diagnosed with a major depressive disorder with prominent anxiety by Dr Ferry.[404]
  7. [367]
    As of 26 February 2016, Cairns Clinic notes recorded that Mr Ackers felt he had not improved, he still experienced thoughts of suicide and self-harm and said he had developed a stutter “three weeks ago”. He felt the tremor and stutter were brought on whenever he discussed work. He only slept 3-4 hours a night. He had some anxiety in crowded spaces. The notes recorded he would drink alcohol in binges of up to 40-70 drinks across two day periods though some weeks he reported he would not consume any alcohol.[405] He said he rarely had nightmares and that these were more so in the early 2000’s. He ruminated over the events leading to him leaving work at the Council as well as being declined WorkCover. The treating doctor noted intermittent jaw and arm tremors and an intermittent stutter apparent when Mr Ackers discussed work. The doctor assessed a moderate to high risk to self. The doctor concluded Mr Ackers’ apparent anxiety and depression was related to “workplace issues” and his obsessive perfectionistic traits were linked to his family history of the same. The doctor noted Mr Ackers identified himself with his job and felt associated loss/bereavement of his job. The doctor finally noted a diagnosis of Post-Traumatic Stress Disorder (“PTSD”), Borderline Personality Disorder, Obsessive Compulsive Disorder and early childhood attachment issues.
  8. [368]
    As of 15 September 2016, Mr Ackers’ consultant psychiatrist, Dr Shebini, had diagnosed him with major depressive disorder, PTSD and generalised anxiety.[406] Mr Ackers was also afflicted with a permanent tremor of his right arm, a stutter which increased in severity when discussing work, disturbed sleep, suicidal ideation, ruminations of workplace incidents and dissociative experiences.[407] At this point Dr Shebini opined that while prognosis was not certain he believed with intensive treatment Mr Ackers may make improvements in his condition.[408] Dr Shebini attributed causation of his diagnosis directly to the workplace incidents and did not identify any other contributing factors.
  9. [369]
    The records of treatment from Dr Shebini and Omega Health Medical Centre indicates Mr Ackers’ symptoms fluctuated considerably though never with any full remission of symptoms. For example, on 30 May 2016, Mr Ackers indicated to Dr Rajpal that he was able to go to the supermarket, had started to prepare a few meals, helped his partner move house and had resumed yoga at home. At a consultation on 31 August 2016 Mr Ackers said he was “feeling a lot better and stable” with his treatment after his WorkCover claim was approved.[409] There was a deterioration of Mr Ackers condition when on 8 February 2017 Dr Shebini noted the tremor in Mr Ackers’ right arm was also developing in his left arm.
  10. [370]
    Psychiatrist Dr Riccardo Caniato examined Mr Ackers on 12 January 2017 and expressed an opinion that Mr Ackers had developed an adjustment disorder in response to workplace issues. Dr Caniato noted pre-existing major depression and possibly PTSD and diagnosed Mr Ackers with major depression, PTSD and generalised anxiety disorder.[410]
  11. [371]
    On 24 May 2017, Dr Shebini noted Mr Ackers’ condition remained severe and that he was struggling with marked anxiety and debilitating right arm function though had experienced improvements in his memory and mood. He continued to have outpatient therapy and group therapy at the Cairns Clinic.
  12. [372]
    On 27 June 2017, Dr Shebini confirmed that Mr Ackers experienced anxiety every day, though it fluctuated in severity. Dr Shebini acknowledged that while Mr Ackers’ symptoms did not meet the full criteria for PTSD, he had objective symptoms of a trauma reaction in relation to the incidents at Council. Dr Shebini also confirmed that despite suffering a number of losses and traumas around 2000/2001, Mr Ackers was high functioning at the time he joined the Council so it was Dr Shebini’s opinion that these past life losses would not have influenced his current presentation.[411]
  13. [373]
    On 25 September 2017 Psychiatrist Dr Sandy Macleod examined Mr Ackers and diagnosed him with panic disorder with secondary conversion symptoms. Dr Macleod concluded it unlikely that Mr Ackers would be able to return to work in the foreseeable future.
  14. [374]
    On 11 October 2017 Dr Shebini recorded that Mr Ackers had been able to attend a Midnight Oil concert after taking some Valium. Dr Rajpal recorded on 28 November 2017 that Mr Ackers was “feeling a lot better … anxiety well controlled” and his medication dosages were decreased. Dr Shebini noted on 11 December 2017 that Mr Ackers’ “hand has hardly tremored since Friday” and that he had received his letter of termination from his employer and had “managed it well”.
  15. [375]
    On 21 February 2018 medical notes recorded Mr Ackers was sleeping, eating and feeling better and was doing his own shopping. He said he was no longer experiencing anxiety at home but still felt anxious about people seeing him in public.[412]
  16. [376]
    Professor Whiteford, who was the expert called at trial by Council, examined Mr Ackers on 14 March 2018. Mr Ackers reported his condition had deteriorated in recent weeks and having to attend the assessment with Professor Whiteford had contributed to the deterioration. Further, Mr Ackers complained of severe and debilitating anxiety, fluctuating suicidal ideation, difficulty with attention, concentration and memory, urinary incontinence, weakness in his legs and a prominent tremor in his head and right arm. He also complained of nightmares and disturbed sleep.[413]
  17. [377]
    In his ensuing first report, of 22 March 2018,[414] Professor Whiteford opined Mr Ackers’ pre-existing depression would have been ongoing, regardless of the workplace events, but would not have been as severe as it has been since 2016. Upon cross-examination Professor Whiteford accepted that Mr Ackers had a major depressive disorder with anxiety.[415]  He doubted a diagnosis of post-traumatic stress disorder, noting there had been no so-called “criterion A” event such as exposure to actual threat and death, serious injury or sexual violence, although he did note Mr Ackers may have previously had PTSD after finding his brother deceased from suicide. Upon cross-examination Professor Whiteford agreed that Mr Ackers could have been diagnosed with PTSD as a result of finding his brother hanging.[416] Professor Whiteford’s report of 22 March 2018 opined Mr Ackers was currently unfit to engage in remunerated employment, but could not comment beyond that because of the instability of Mr Ackers’ condition. He posited Mr Ackers’ tremor was a manifestation of his anxiety and depression.
  18. [378]
    On 20 March 2018 in a letter to Disability Services, Dr Shebini opined Mr Ackers suffered from generalised anxiety disorder, major depressive disorder and PTSD. The generalised anxiety disorder and PTSD were said to have been in 2016 however the depression stemmed from 2001.[417] It was said the diagnosis had a severe functional impact on activities including self-care and independent living, social activities, concentration, task completion, planning and decision making. It was noted Mr Ackers could travel on his own as necessary to attend medical appointments and to local shops but required support to socialise in public. Mr Shebini opined that it was unlikely there would be any future improvement in Mr Ackers’ symptoms or improvement in his ability to function.[418]
  19. [379]
    Mr Ackers was referred to neurologist Dr Mike Boggild, to check whether organic disease was causing his physical symptoms. On 17 April 2018 Dr Boggild reported there was no evidence of any underlying neurological disorder.[419]
  20. [380]
    Dr Byth, who was the expert called at trial by Mr Ackers, noted in his first report of 13 June 2018,[420] that Mr Ackers’ past history of depression was best labelled a pre-existing dysthymic disorder, that is, a mild persistent depressive disorder. He diagnosed Mr Ackers as suffering from major depression with prominent associated anxiety and agitation. He opined Mr Ackers’ major depression and anxiety were of marked severity, causing clinically significant impairment of social and occupational functioning, and that he had prominent phobic anxiety. He posited Mr Ackers’ tremor could be a manifestation of severe anxiety and agitation. Dr Byth considered Mr Ackers could not return to work and doubted Mr Ackers would obtain a full remission with treatment. He opined Mr Ackers’ complaints of nightmares and flashbacks of traumatic events at work would justify the additional diagnosis of PTSD. In cross-examination Dr Byth said this would be complex PTSD, an entity in which a patient has not experienced a life-threatening event but rather a series of less than life-threatening distressing events. He agreed this would not meet the test for a DSM-V diagnosis of PTSD because he has not experienced a life-threatening event.[421]
  21. [381]
    During 2019 and 2020 (the first part of the trial commenced in February 2021) the medical records suggest there was some improvement in Mr Ackers’ day to day existence, as he re-engaged in activity in the community, though not to the point where he had the capacity to resume remunerative employment. Whether the continued presence of this litigation was stifling greater progress is an issue considered further below in dealing with the assessment of damages.

The test of causation

  1. [382]
    I have found Council’s breaches of duty of care occurred post 9 July 2015, when the risk of psychiatric injury to Mr Ackers had become foreseeable. As to whether the post 9 July breaches caused his major depressive illness, it is relevant that there were potential causal contributors to his illness prior to then. He had a pre-existing mild depressive disorder and earlier he had been working very long hours and been devastated by the outcome of the union complaint process.
  2. [383]
    The applicable statutory test of causation is 305D Workers’ Compensation and Rehabilitation Act, which provides:

305D General principles

  1. (1)
    A decision that a breach of duty caused particular injury comprises the following elements—
  1. (a)
    the breach of duty was a necessary condition of the occurrence of the injury (factual causation);
  2. (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).
  1. (2)
    In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.
  1. (3)
    If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach—
  1. (a)
    the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
  2. (b)
    any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
  1. (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. [384]
    Section 305D(1)(a) adopts the “but for” test of causation. That is, proof that the breach of duty was a “necessary” condition of the occurrence of the injury effectively requires the plaintiff to prove that but for the defendant’s negligence the plaintiff’s injury would not have occurred.[422]

Causation in opinion of Dr Byth (for plaintiff)

  1. [385]
    In Dr Byth’s first report of 13 June 2018 he opined of the cause of Mr Ackers’ condition:

“This psychiatric condition was caused by his difficulty coping with interactions with other staff at work, particularly when he felt unfairly warned about his performance after being reported by three subordinates who were on leave. He then felt that he had been badly advised by his superiors to accept the warning, and that he was unfairly treated by being placed on a performance management program. He also complained of having insufficient support staff at work, which resulted in increased workload and his spending longer hours at work, which also added to his tiredness, anxiety and depression. As well, he felt that he was unfairly treated in meetings at work, when he was falsely accused of making mistakes during his performance management program.”[423]

  1. [386]
    Dr Byth diagnosed Mr Ackers with a pre-existing Dysthymic Disorder and a chronic fluctuating mild to moderate depression.[424] Dr Byth concluded Mr Ackers’ pre-existing anxiety and depression were exacerbated by work related stressors in 2015 and that “but for” these stressors, Mr Ackers’ anxiety and depression would have remained of a mild severity and likely would have been more receptive to treatment.[425] Dr Byth questioned Mr Ackers about the contribution of lingering grief from the death of his father and brother, though Mr Ackers said he had “adjusted to [his] grief, and now only has happy thoughts about [his] brother and father”.[426] Dr Byth acknowledged that while Mr Ackers was being treated for depression in 2015, in his opinion, he would have been unlikely to develop anxiety and depression of such intensity and of such persistence despite treatment, along with symptoms of PTSD “but for the effects of harassment and bullying at his work at the Cairns Council in 2015”.[427]
  2. [387]
    Dr Byth concluded longer hours of complex work with deadlines was very stressful to Mr Ackers and led to a worsening of his anxiety and depression.[428] Further, Mr Ackers found the Union complaint against him to be “unfair and distressing” and thought it was the Union wanting him sacked. Mr Ackers felt the performance management program was delayed and mismanaged. This upset him and made him feel more anxious and depressed and exacerbated his condition.[429]
  3. [388]
    In re-examination Dr Byth was asked to assume Mr Ackers did not take time off as a result of the Union complaint, that after noticing his hand shaking on 1 July 2015 he was put off work until 3 July 2015 and then on 8 July he was told a performance management process would commence, he ceased work in September 2015 and he was working overtime up to May 2015 including shifts lasting 35 and 31 hours. It was further asked that Dr Byth assume Mr Ackers took some work home and worked at least 5 hours per week of overtime from May until September 2015 and he had the “heavy workload” of a payroll officer and payroll supervisor. In accepting these assumptions Dr Byth agreed this would have increased the likelihood of Mr Ackers’ worsening anxiety and depression.[430]
  4. [389]
    In relation to the 60/mg dosage of Aropax Mr Ackers was on at the time he joined the Council, while Dr Byth acknowledged this was the maximum dosage as advised by the manufacturer, it was standard practice that the “dose which gets you well will keep you well”. He also agreed under cross-examination that given Mr Ackers’ pre-existing condition, a reduction of this dosage or any life stressors would put him at risk of exacerbation of his condition.[431]

Causation in opinion of Professor Whiteford (for defendant)

  1. [390]
    Professor Whiteford noted Mr Ackers had experienced major stressors in his life before starting with the Council and was at a loss to explain how the stressors experienced at the Council deteriorated his condition to more severe depression and PTSD symptoms.[432] Nonetheless, he testified that when he saw Mr Ackers in 2018, he believed Mr Ackers to have a mental disorder which “occurred as a result of multiple stressors that commenced whilst he was working at the council”. [433]
  2. [391]
    On the potential causal contribution to Mr Ackers’ disorder of long work hours, Professor Whiteford’s reports commented variously on scenarios by which Mr Ackers had worked beyond standard hours an average of 50 minutes a week[434] or even an additional 2.55 hours per week.[435] He opined such a pattern of additional hours fell well short of a threshold sufficient to cause the onset of a mental disorder and opined it would not have caused Mr Ackers to develop mental health problems or made any material contribution to his psychiatric decompensation in 2015.[436]
  3. [392]
    In cross-examination Professor Whiteford agreed if Mr Ackers had been working more than an extra 50 minutes per week and if this were up until 8 July 2015, his view about this would have changed and this would have been a stressor which reached the threshold so as to make a contribution.[437] Professor Whiteford also said he was unaware Mr Ackers had worked a 31 and 35 hour shift.[438] Professor Whiteford said it is “psychologically unhealthy and stressful” to work 31 hour shifts, though he could not confirm that these work hours would cause any long-term mental health problems.[439]
  4. [393]
    On the potential causal contribution to Mr Ackers’ disorder of the Union complaint of sexual harassment, Professor Whiteford’s report of 11 February 2020 opined, based on the substantiated complaints being complaints Mr Ackers admitted to, that “the findings would not have caused Mr Ackers to develop a mental disorder”.[440] However in his report of 24 February 2020 he opined the making of the complaint of sexual harassment against Mr Ackers would have been a significant stressor which would have persisted until the investigation was complete and he was notified of the outcome.[441]
  5. [394]
    On the potential causal contribution to Mr Ackers’ disorder of the performance management process, Professor Whiteford opined, on the premise Mr Ackers continued to make “basic mistakes in the course of his work”, being placed on a performance management plan to identify and deal with further potential mistakes would not have caused a mental disorder.[442] On the other hand, in his third report of 24 February 2020 Professor Whiteford opined that if Mr Ackers was at the time or subsequently of the view he did not make mistakes and was being unfairly treated by the Council, then those circumstances would have made a definite and material contribution to the aggravation of his psychiatric condition.[443]
  6. [395]
    Under cross-examination, Professor Whiteford agreed that the overwork, Ms Wise telling Mr Ackers he “would be getting a kick in the arse”, Mr Andrejic telling Mr Ackers “there’s no coming back from here”, Mr Ackers feeling as if Mr Andrejic wanted to be rid of him and the ensuing commencement of the performance management plan were all stressors which would have contributed to the development of Mr Ackers’ psychiatric injury.[444] Professor Whiteford referred to the idea of an “allostatic load” whereby pre-existing stressors build upon newer stressors and the cumulative impact of the stressors reaches a threshold where a person develops clinically significant symptoms. In Professor Whiteford’s opinion this is what occurred with Mr Ackers.[445] I agree.

Conclusion re causation

  1. [396]
    The causal contribution to Mr Ackers disorder was obviously mixed. As Mr Ackers put it:

“I experienced a lack of support from Council from the departure of the three payroll team members going on leave. Every event since then has affected my health; not just one particular event.”[446]

  1. [397]
    The relative significance of the stressors in contributing to the allostatic load was not quantifiable by the expert witnesses but that does not preclude me from drawing inferences from the evidence on the balance of probabilities.
  2. [398]
    While the adverse effect of the Union complaint and how it was dealt with likely had a causal contribution to Mr Ackers suffering a major depressive disorder it is unlikely that if that was the only stressor his mental state would have degenerated as it did. After all, it was clearly indicated to him that the outcome of that process was no threat to his employment.
  3. [399]
    Mr Ackers was also subject to the stress of managing an understaffed workplace and working very long hours, which were stressors which would have worked in combination with the stress of the Union complaint. It will be recalled this culminated in him going on sick leave on 1 July 2015. However, he did return to work and he did persist at work for several months thereafter.
  4. [400]
    In that period there was a significant reduction in his past pattern of working very long additional hours. Also, there was a net addition of one extra staff member to the unit in mid-July, which would have resulted in some diminution of the pressure of work upon him. Another was to return around 10 August. I have found the continuing failure to adequately staff the unit in the meantime was a breach of council’s duty of care and part of the allostatic load on Mr Ackers. However, its impact relative to the impact of the breaches connected with the Performance Improvement Action Plan was moderate and easing and but for those other breaches it was unlikely to have taken the allostatic load upon Mr Ackers to the point of causing the psychiatric injury suffered by him.
  5. [401]
    Had the manner and circumstances of the pursuit of a Performance Improvement Action Plan not occurred, given the degree of easing in the other past stressors on him, it is unlikely the allostatic load upon Mr Ackers’ mental state would have culminated in Mr Ackers’ major depressive order. Mr Ackers’ perception he was being unjustly set up to be terminated by the imposition and pursuit of the Performance Improvement Action Plan process ground on, as that pursuit did, in breach of Council’s duty of care, over a sustained period and was obviously foremost in his mind only the day before he finally left the workplace when he told Ms Posgate that Mr Andrejic “just did not want him to be employed at the Council anymore”.
  6. [402]
    In my conclusion, but for Council’s breaches of its duty of care in connection with the imposition and pursuit of the Performance Improvement Action Plan, it is unlikely Mr Ackers would have suffered his psychiatric injury. Those breaches were a necessary condition of the occurrence of the injury and it is appropriate the scope of Council’s liability should extend to the injury so caused.
  7. [403]
    It follows Council is liable for the loss and damage occasioned to Mr Ackers by its negligence.

PART B: QUANTUM

Prognosis

The issue as to the extent of Mr Ackers’ recovery

  1. [404]
    The assessment of loss and damage in this case requires consideration at the outset of the extent of Mr Ackers’ recovery. In earlier discussing the development of the diagnoses of Mr Ackers’ condition I touched upon the dire impact it had upon his life for several years after he ceased working through to 2018.
  2. [405]
    It is unnecessary to canvass those earlier years post-injury in further detail save for noting Council exhibited Channel 7 news video footage from March 2016 showing Mr Ackers sitting in the crowd at a Pro Bull Riding event.[447] He is smiling and speaks to the reporter for five seconds without stuttering. Mr Ackers explained this was an organised trip with the Cairns Clinic and he was heavily medicated with diazepam at the time.[448] That Mr Ackers appeared as he did in such in a supervised outing was not at odds with the debilitating effects of Mr Ackers’ condition in that era.
  3. [406]
    The evidence of Mr Ackers’ state from 2018 onwards warrants elucidation, for it indicates that from then to the present Mr Ackers, while still struggling, was less debilitated than in that earlier era post-injury.
  4. [407]
    Despite what it shows, Mr Ackers contends he has not enjoyed any sustained improvement in his condition. Dr Byth’s view is consistent with that but not Professor Whiteford’s. Their views as to the prospect of further improvement are similarly opposed. This is of obvious significance to the assessment of damages. It is convenient to consider some highlights of the medical records and video footage of Mr Ackers’ progress since 2018 before moving to Mr Ackers’ account of his present state and the respective opinions of Professor Whiteford and Dr Byth.

Medical records and video footage of progress since 2018

  1. [408]
    On 7 March 2018 medical notes indicate Mr Ackers would go out in public to go to Centacare, Church and for coffee and attended the gym five times per week and had lost 5kg in total.[449] When the entry relating to going to the gym five times a week was drawn to Mr Ackers’ attention he responded, “Yes, I did do that for a couple of weeks”, the implication being it did not continue.[450]
  2. [409]
    Counsel for Council was conscious that future notes indicated Mr Ackers went to the gym and asked whether he would expect to see any more entries about going to the gym after March of 2018. Mr Ackers responded:

“You possibly will. … Because they were a few things with Dr Shebini. And I wanted her to believe I was doing well. … Because I wanted her to believe I was doing better than I was”.[451]

  1. [410]
    Mr Ackers went on to say:

“I’m saying I didn’t go to the gym. So if you’ve got a video of me going to the gym, it’s for that one or two weeks that I just stated.”[452]

  1. [411]
    The following exchange ensued regarding Mr Ackers’ comment he wanted Dr Shebini to believe he was doing better than he was:

“Can I just ask you, please, Mr Ackers, why you say you were not telling Dr Shebini the truth?--- I was embarrassed.

But here was a person trying to help you and treat you. Why wouldn’t you tell her the truth?--- I felt emasculated. It’s been a big thing for – to cope with the kind of person I was to now.

Don’t you think if you told Dr Shebini the truth, it might help her to treat you and for you to get better and improve?--- As far as going to the gym, I didn’t.”[453]

It did not become clear whether, in respect of much later entries, also alluding to Mr Ackers going to gym, he had actually been going to gym or was continuing to falsely assert he had.

  1. [412]
    Mr Ackers was admitted to the Cairns Clinic for 7 weeks from 16 March 2018 to 4 May 2018 for treatment of PTSD and depression as identified by Dr Shebini.[454]
  2. [413]
    On 20 March 2018 in a letter to Disability Services, Dr Shebini noted Mr Ackers required regular and consistent support to maintain his independent living, with his carer attending his home 3-4 days per week to assist with washing and house maintenance.
  3. [414]
    On 4 June 2018 Mr Ackers reported to Dr Byth that he feared crowded places, could not talk to people in public, and needed a lot of support and supervision.[455]
  4. [415]
    On 20 June 2018 from 12.22pm to 12.50pm, surveillance footage gathered by council depicts Mr Ackers driving his car and walking into a service station.[456] He is shown to be wearing an arm brace when walking. He rejected the suggestion that his arm was not shaking at the time of this video.[457] There is no obvious sign of shaking in the video but, as with all the exhibited footage, his arm is generally in motion, making any tremor less detectable and the view is not so close up or zoomed in as to make a minor tremor apparent.
  5. [416]
    At 1.20pm, on 20 June 2018 council surveillance footage shows Mr Ackers walking along the street and into a Post Office with Ms Baker.[458] He is wearing an arm brace. Again, he disputed the suggestion his arm is not seen shaking in this footage.[459]
  6. [417]
    On 30 June 2018 at 12.16pm, council surveillance shows Mr Ackers walking with Ms Baker into a pet store.[460] They are seen proceeding to the counter of the store where they pay. They then walk into Autobarn where they browse the stock and leave. By 12.52pm Mr Ackers and Ms Baker are shown in Bunnings. Mr Ackers pushes a trolley and they browse the aisles. The pair check out and are shown in the car park loading shopping into their car at 1.10pm. Ms Baker lifts the items into the car. Mr Ackers is wearing an arm brace.
  7. [418]
    Mr Ackers explained in re-examination that Dr Shebini encouraged him to engage in so-called “exposure therapy” to get used to being in public with people about and, in short, she encouraged him to go to supermarkets and stores like Bunnings to walk around them and touch things in the store.[461]
  8. [419]
    On 8 August 2018 medical notes recorded Mr Ackers felt “ok”, enjoyed driving, shopped on his own and was continuing exposure therapy. He felt his neurofeedback treatment was helping.[462]
  9. [420]
    On 25 July 2018 medical records note Mr Ackers was “doing okay” and was leaving the house for exposure therapy to get coffee and attend the shopping centre at Smithfield, though he was anxious going to the shops. He had returned to the gym, was preparing meals, sleeping a good 7-8 hours per night, eating better and planned to buy a boat.[463]
  10. [421]
    On 17 October 2018 medical notes confirm Mr Ackers attended a reconciliation meeting in Brisbane which he described as “brutal”. He felt “awful” about it and “fell apart”. The notes record Mr Ackers was buying a boat.[464]
  11. [422]
    On 19 October 2018 at 11.15am, surveillance footage shows Mr Ackers, wearing an arm brace, exiting the driver’s side of his car and shopping at Coles.[465] Mr Ackers browses the aisles and touches stock as he adds items to his shopping basket before checking out. A slight hand tremor is apparent at one point as Mr Ackers bypasses the frame of view. Mr Ackers testified his hand shakes a lot, badly when he goes to the shops[466] and that he has a panic attack every time he goes out in public.[467] He testified his panic attacks involved him feeling violently ill and sweating profusely and that he found his constant perspiration in supermarkets embarrassing.[468] There is no sign of his profuse sweating in the video or indeed any other outward manifestation of a panic attack.
  12. [423]
    At 11.28am on 19 October 2018 the surveillance footage shows Mr Ackers filling up his car at a fuel station. He is seen walking inside the service station and he is not wearing an arm brace. Mr Ackers conceded that his arm does not appear to be shaking in this footage but said his hand was clenched around keys.[469]
  13. [424]
    On 20 October 2018, surveillance footage shows Mr Ackers with his car and boat at a fuel station, fuelling up, paying and collecting a bag of ice.[470] He is wearing what appears to be a wrist brace rather than his usual full lower arm brace. He drives away and at 8.43am he is seen at the Yorkeys Knob boat ramp where he removes straps securing his boat to the trailer. Ms Baker arrives and they launch the boat into the water and the boat departs into the marina. The boat returns to the marina, Mr Ackers and Ms Baker secure it to the trailer and they drive away at 2.52pm.
  14. [425]
    Later on 20 October 2018 surveillance footage shows Mr Ackers and Ms Baker arrive home.[471] Mr Ackers is seen smiling and laughing as he speaks to a neighbour.[472] At 5.54pm Mr Ackers and Ms Baker wash off the boat with a hose which Mr Ackers directs with his right hand.
  15. [426]
    On 16 January 2019, medical records note Mr Ackers went to James Cook University (“JCU”) on Monday 7 January and despite feeling anxious he was looking forward to attending the following Monday. He now acknowledges he was not even enrolled.[473] His mood was reportedly up and down. He was noted to be happy to have bought a boat, was driving to the gym and going to exposure therapy locations.[474]
  16. [427]
    On 29 January 2019 medical records say Mr Ackers’ anxiety was okay though worsened when in public. He apparently enjoyed his TAFE course and attended “job club” every 2 weeks.[475] Job club was a Centrelink requirement in which he had to meet with a consultant to determine whether he could fill any positions.[476] As to the TAFE course it seems to have been noted interchangeably as a course with TAFE or a course with JCU. On this topic the following exchange occurred in cross-examination:

“Yeah, but you were enjoying your TAFE course?--- I – this is another exercise where I have lied to Dr Shebini about doing a development course on life coaching, because that’s where I want to be once I can get well enough.

But you tell Dr Shebini numerous times that you’re enjoying – well, it changes between TAFE and JCU?--- Yep, yes.

And the course, anyhow?--- Yes.

Are you telling – that’s just a lie you told Dr Shebini?--- An untrue truth, yeah, yes. I was afraid again. I wanted her to feel I was improving.

HIS HONOUR: So you weren’t doing a TAFE course?--- No, your Honour.”[477]

  1. [428]
    On 21 February 2019 Cairns Clinic notes recorded that Mr Ackers was attending a course at JCU to become a life coach and he was doing exposure work to enable him to attend. He was said to be exploring slow and effective ways to decrease stress and anxiety and was doing well.[478]
  2. [429]
    Mr Ackers accepted that in April 2019 he had attended a group discussion at the Cairns Clinic in which he had told the nurse there he was attending a course at JCU to become a life coach.[479] Mr Ackers explained he had lied to the nurse in the same way he had to Dr Shebini because, “I just wanted for people to think I was getting better”.[480] He went on to acknowledge he had, in the discussion, mentioned he was finding attendance at the course difficult and testified he had done exposure work walking about at JCU, but found that too difficult and was embarrassed to say that he was not doing the course.[481]
  3. [430]
    On 24 April 2019, medical records said Mr Ackers was “feeling good” and enjoyed bowling which he found helped with his anxiety. Notes indicate he had no tremor but upon giving evidence Mr Ackers clarified, and I accept, this was a reference to when he was holding the bowling ball.[482] It was noted he “faced Coles again”, was sleeping 6 hours per night and was exercising. The notes also indicated his TAFE course was on a break.[483]
  4. [431]
    On 22 May 2019, medical records noted Mr Ackers loved bowling which he did twice a week and an extra Sunday morning every month. Mr Ackers found that he socialised at bowling and Deanne also enjoyed it. He had been shopping at Redlynch and felt more confident though remained scared of going to town and seeing people from the Council. The records indicate Mr Ackers enjoyed his life coaching course and felt his neurofeedback was really helping his memory. He was sleeping 6-7 hours per night regularly.[484]
  5. [432]
    In cross-examination Mr Ackers explained going out shopping involved what he described as “exposure therapy”, where he would walk the aisles and touch items along the way, giving him, as he put it, a level of good grounding and familiarity.[485]
  6. [433]
    On 4 June 2019, Dr Shebini’s medical records noted Mr Ackers would be travelling to Hong Kong in four weeks. It was noted Mr Ackers was doing well and bowling was going “really good”. He was doing “more exposure work”, his studies were reportedly “going well” and he apparently took specific medication so that he could complete a presentation at his life coaching course.[486] He explained in cross-examination that he did not do a presentation, it being for the course he in fact had never enrolled in.[487]
  7. [434]
    On 31 July 2019 Dr Shebini said Mr Ackers was “overall doing well”. He was walking daily and eating regularly and had lost 10kg in weight. He experienced no anxiety while in Hong Kong and he “felt in his element” while there. In cross-examination he explained he felt he had left his issues in Australia.[488] He had a suit made, slept well, took his medications and travelled well on the plane. It was noted Mr Ackers, “Flew well”, though he testified that was only on the way over.[489] The notes record he felt sad when he returned to Cairns, wanted the court case to finish and thought he was under surveillance connected to his claim.[490]
  8. [435]
    On 12 August 2019, Dr Shebini said Mr Ackers was “doing very well” and felt he had a stable mood. He was sleeping and eating well, was meal planning and had lost weight. According to the notes he attended university once per week, which he now acknowledges was a lie, and attended Church once a week. Dr Shebini recommended that Mr Ackers should do more “normal” activities unrelated to his mental health. Plans were made for Mr Ackers to cease attending Cairns Clinic groups in 6 weeks’ time and for neurofeedback treatment to reduce to once per month. There were also discussions of decreasing his anticonvulsant medication dosage.[491]
  9. [436]
    On 5 September 2019 Cairns Clinic notes record, in a discussion of goals with Mr Ackers, that of his goal of wanting to be able to go shopping he had “made great progress” from being unable to go out to now being able to go to the shops and do his own shopping including grocery shopping and go out for breakfast.[492]
  10. [437]
    On 6 November 2019 Dr Shebini recorded that Mr Ackers was excited to move home and was eating and sleeping well. He continued to lose weight, had not drank alcohol for years and only had a cigarette per day. He had stopped attending the Cairns Clinic and was feeling the benefits of grounding exercises on his anxiety. It was noted Mr Ackers was volunteering at St Vincent De Paul twice per week and was really enjoying it.[493] Mr Ackers testified he only volunteered at St Vincent De Paul twice a week for a month and ceased because he was getting too anxious with people around.[494]
  11. [438]
    On 4 December 2019, medical records indicated Mr Ackers had moved home and was very happy. He planned to travel to Brisbane for Christmas. He was noted as cooking daily, volunteering twice per week, fishing and boating and his self-harm risk was rated as low.[495] In cross-examination he confirmed he was in fact going fishing and boating,[496] but that the reference to him volunteering would have been towards the end of his time volunteering at St Vincent De Paul.[497]
  12. [439]
    On 29 January 2020 medical records noted Mr Ackers was still doing volunteer work twice per week, which Mr Ackers accepted was a reference to him still volunteering at St Vincent De Paul.[498] Mr Ackers was noted to still be bowling three times per week. He felt his mood was a “bit flat”, he had good energy levels, slept nine hours per night, was eating healthily, had put on some weight and had a fine appetite. He did not report any bad dreams. He was attending a new Church. He was said to be commencing TAFE studies next month to attend one day per week, which was false. His risk of self-harm was assessed again as low.[499] Records of that date also note he was to begin volunteering with the SES that week however he testified that was wrong and that he had told Dr Shebini he wanted to join the SES but she advised against it because it was not good for his mental state if he was looking for dead bodies. It seems surprising, if Dr Shebini gave such advice on the topic, that she would so err in what she recorded on the topic, however she was not a witness and experience in the law reveals doctor’s records of what a patient said are not always correct.
  13. [440]
    Dr Shebini noted on 29 January 2020 that Mr Ackers was feeling “somewhat stagnant” while waiting for his court case to conclude, though he hoped to “move forward once that is complete”. The following exchange incurred in cross-examination in respect of that entry:

“Remember what you told Dr Shebini about that?--- Yes. So what I hope to do is do the – actually do the life coaching course to teach kids about understanding anxiety and what for parents to look out for.

But why haven’t you done it to date?--- First of all, I don’t feel I’m well enough to do it.

Well, do you feel you’ll be well enough after this court case is over? Is that what it is?--- I don’t feel that it’ll be a miraculous recovery, no, but it’s one of my goals that I’m looking forward in my forward life to achieve.”[500]

  1. [441]
    On 11 March 2020 medical records noted Mr Ackers had a difficult week as he had to answer more questions for his court case which might go on “until the end of the year”. He felt flat, disappointed and anxious. He had resumed walking and went fishing where possible. He was noted to be volunteering once per week, which he testified he believed he had stopped doing,[501] attending JCU once per week for his life coaching course, which is now known to be a fiction, and was bowling three times per week, which was the truth.[502] His hand was improving.[503]
  2. [442]
    On 22 April 2020, when Mr Ackers was still in isolation due to COVID-19 and had a Skype consultation with Dr Shebini, he reported twice a day using a Tai Chi app, watching movies and listening to audiobooks had helped, but he still felt flat and was not sleeping very good “because of the isolation situation”. Dr Shebini noted he missed going bowling several times a week but enjoyed taking his boat out on the weekend.[504]
  3. [443]
    On 6 May 2020 medical records indicate that Mr Ackers was doing okay, he was doing Tai Chi, listening to audiobooks and was walking regularly. His sleep was not great and he still felt anxious in the supermarket.[505] It was also noted Mr Ackers had court case work every week and may have a mediation in July.
  4. [444]
    On 20 May 2020 Dr Shebini recorded Mr Ackers was “doing quite well” and felt good about his recent contact with his legal representatives. He was managing well in isolation (because of COVID-19) and was doing housework and cooking as well as walking regularly, listening to audiobooks and podcasts. He reported that his sleep had improved and he was reaching out to old friends.[506]
  5. [445]
    On 1 June 2020, medical records said Mr Ackers was doing good and keeping busy, he was still walking daily, losing weight, doing puzzles, listening to podcasts and reading books. He was in touch with old friends. He found his memory was a 7/10 and he had recommenced brain training. There was discussion of him doing more exposure work.[507]
  6. [446]
    On 4 June 2020 Dr Shebini recorded Mr Ackers was doing quite well and was keeping himself mentally stimulated and physically active. He enjoyed looking after his home and was “generally feeling good”.[508] Of the latter entry, Mr Ackers testified:

“Clarification of “good” is comparative to feeling like I want to cut my wrists. So there is an important clarification there of the word “good”.”[509]

  1. [447]
    On 17 June 2020 medical records indicated Mr Ackers was doing “really good” and “feels good”. He was losing weight and had increased walking. He had been doing puzzles, talking to old friends, listening to podcasts and books.[510]
  2. [448]
    On 18 June Mr Ackers consulted with Dr Byth via Skype. Dr Byth’s report noted, Mr Ackers had told him he was “driving very little, and only driving to my therapy and, driving to the supermarket as part of my exposure therapy for Agoraphobia – I go early in the morning when the seniors shop, when the supermarket is quiet or almost empty”.[511] Mr Ackers told Dr Byth his memory remained poor and he struggled to concentrate enough to finish puzzles, books or podcasts.[512] Mr Ackers said he was too nervous to be in a crowded place to regain employment and that he would stutter too much if he were tired. Ms Baker told Dr Byth that Mr Ackers was virtually housebound.[513] Mr Ackers was continuing treatment with his Psychologist and Psychiatrist on a fortnightly basis and attending weekly outpatient group therapy.[514] Dr Byth recorded that Mr Ackers had had a number of admissions to the local psychiatric unit.[515] Mr Ackers had also undergone counselling, rapid eye movement desensitisation and some neurofeedback treatments.[516] Mr Ackers told Dr Byth his psychological symptoms were “much the same”, that he felt depressed and had low self-esteem. He had a lack of motivation to eat, socialise and would only go out to therapy and to shop for groceries.[517]  He said he was able to control his feelings of self-harming. He also reported urinary incontinence overnight 2-3 times per week.[518] Dr Byth noted Mr Ackers had not been an inpatient at the Cairns Clinic since he spent 8 weeks there in 2019 for treatment of major depression and PTSD.[519]
  3. [449]
    On 12 August 2020 medical records indicate Mr Ackers was doing okay and his mother had recently visited. He was again stuttering and was not sure why except that he was “just anxious” and the court case was in four weeks time. He slept 6 hours per night and reported he sometimes dreamt staff from the Council were chasing and trying to kill him. This would cause him to wake in cold sweats. He was still doing puzzles, listening to podcasts, planning to fish and had a good routine.[520]
  4. [450]
    On 26 August 2020 medical records note Mr Ackers was eating well and more regularly and was sleeping relatively well. It was noted he was doing well “for the most part” though he was experiencing anxiety about his upcoming mediation in two weeks time.[521]
  5. [451]
    On 7 October 2020 medical records note Mr Ackers was doing “ok” but he was thinking about his upcoming court case “24/7”. He had decreased sleep and experienced nightmares. He described his state as “time limited”.[522]
  6. [452]
    On 4 November 2020, medical records indicated Mr Ackers was doing “a lot better” and was coping better. He was looking forward to Christmas and was planning to travel to Brisbane to meet his legal representatives. His night-time incontinence was noted as having stopped but in evidence Mr Ackers denied telling Dr Shebini that, asserting his night-time incontinence still has not ceased.[523] It was noted he was sleeping better and his dreams were less intense, his mood was better and he felt very positive about having just completed a craniosacral massage.[524]
  7. [453]
    On 15 January 2021 at 12.06, surveillance footage captures Mr Ackers shopping at Woolworths in Mt Sheridan.[525] He is wearing an arm brace and he has a trolley. Mr Ackers is seen browsing the aisles, picking up items as he places them in his trolley. Mr Ackers orders from the deli counter employee. Mr Ackers conceded that he could not see his hand shaking during this but noted he was familiar with the employee he was speaking to.[526] Mr Ackers is seen to check out with a full trolley of groceries and he is next shown driving away. He is briefly seen in another carpark at 12.56pm and then at 4.45pm he is seen fuelling up his car at a service station.

Mr Ackers’ account of his present state

  1. [454]
    A written quantum statement by Mr Ackers became an exhibit.
  2. [455]
    It was highlighted in cross-examination that much of the language describing Mr Ackers’ current symptoms and current functioning was the same as the language used by the psychiatrist who testified in his case, Dr Andrew Byth. The quantum statement was obviously taken from Mr Ackers by a legal representative, so Mr Ackers would have been limited in his capacity to comment on the legal representative’s statement-taking methods. However, he made the point that the examples cited in cross-examination were examples in any event of information he had given Dr Byth, so that what was in his quantum statement about such information would be much the same as what he related to Dr Byth.[527]
  3. [456]
    Mr Ackers deposed he felt angry and upset that there were unfounded complaints against him at work, that he was being badly overworked and that he is now unable to do any work at all.[528]
  4. [457]
    He deposed he still gets nightmares of harassment at work with dreams of two staff trying to kill him every night and then wakes up with night sweats.[529] He deposed that he still gets flashbacks of being harassed and bullied once or twice each day, but rapid eye movement desensitisation with his psychiatrist helps keep him stable and reduces triggering the flashbacks.[530] He deposed he is of very depressed mood, hates himself, feels inferior,[531] and to his embarrassment, he experiences urinary incontinence in bed two to three times per week.[532]
  5. [458]
    Mr Ackers deposed he struggles with concentration and memory so that he may take three days to do a puzzle that should take about an hour and that his mind wanders when reading books and listening to podcasts because of lack of concentration.[533] He tends to be forgetful of conversations with people and even what television shows he has been watching.[534]
  6. [459]
    Mr Ackers deposed he lacks motivation and interest for housework and home maintenance tasks and stays in bed a lot.[535] Mr Ackers deposed he has lost his physical relationship with Ms Baker because he “cannot perform”, so that she is only a close platonic friend.[536]
  7. [460]
    Mr Ackers deposed he tries hard to control self-harming tendencies,[537] has trouble leaving the house,[538] lacks interest in going out and socialising and drives very little and only drives to therapy and to the supermarket as part of his exposure therapy for Agoraphobia.[539]
  8. [461]
    In cross-examining Mr Ackers, defence counsel was possessed of the video which surveilled Mr Ackers out shopping at a supermarket about midday. Defence counsel asked Mr Ackers when he would go grocery shopping and Mr Ackers explained he would go early in the morning when the supermarket is quite empty, but Dr Shebini had been encouraging him to go at a more busy time so he had recently changed his time for shopping to about 2pm.[540] That Mr Ackers estimated a time of 2pm when the video records he was shopping at about midday is of no material significance to his reliability. Prior to being shown the video it appeared Mr Ackers was quite candid in explaining, at the suggestion of his doctor, he had been endeavouring to shop at a busier time of day.
  9. [462]
    Mr Ackers also gave evidence that he did, for a time, leave the house to go tenpin bowling but had ceased that, initially because of COVID-19 gathering restrictions during 2020, and did not resume it later in 2020 because he “just couldn’t face the people”.[541]
  10. [463]
    Mr Ackers also volunteered in evidence that in July 2019 he had spent two weeks in Hong Kong with Ms Baker and her sons.[542] He explained this was discussed at length with Dr Shebini at a time when his anxiety was less than it was normally, and she considered it would be a good idea.[543]
  11. [464]
    Of his prospect of ever working again Mr Ackers deposed:

“Regarding future work, I find it hard to leave the house so don’t know how I will be able to work. I am too upset to return to work at the Council. I would be too withdrawn from people to work, and am unable to concentrate at work.”[544]

  1. [465]
    Mr Ackers deposed he has remained very anxious and depressed without much noticeable improvement with treatment.[545] In cross-examination he testified:

“I was progressively getting worse from September until January 16. And from January 16, I’ve felt pretty much the same with my shakes, stutters, self-harming. Unable to go to shops without having my major panic attacks, etcetera.”[546]

  1. [466]
    Mr Ackers’ assertion that he remained pretty much the same from 2016 is at odds with the medical records which, considered as a whole, show that in 2018 Mr Ackers experienced phases of apparently improved mental wellbeing for extended periods, gradually managing to get about in the community, shopping and engaging in recreational activities. I accept his psychiatrist urged his graduated exposure to the outside community as therapy, and that he found it challenging at times, but it had some success. Mr Ackers’ apparent shift to an improved level of well-being and societal engagement seems to have consolidated after mid-2018.  Some signs Mr Ackers is capable of more improvement, particularly engaging in courses, turned out to be false, but not others, such as being able to take on and enjoy an international holiday. Overall, his progress appears to have plateaued between 2018 and trial.

Prof Whiteford’s opinion of progress and prognosis

  1. [467]
    Professor Whiteford noted Mr Ackers had experienced an improvement in the latter part of 2017 and was able to cease most of his medications, though in 2018 there had been a deterioration “related to the litigation” causing Mr Ackers to be readmitted to hospital.[547]
  2. [468]
    Professor Whiteford noted despite intensive specialist psychiatric and psychological treatment, Mr Ackers had not experienced remission from his symptoms. Professor Whiteford attributes this to stress from his involvement in the compensation claim and litigation.[548] In cross-examination he said the average duration of a major depressive disorder is 36 weeks according to the medical literature and in his opinion, the reason Mr Ackers continued to have a significant depressive disorder was likely due to other stressors he experienced long after leaving the workplace, namely the litigation.[549]
  3. [469]
    Professor Whiteford expects that Mr Ackers’ depression will significantly improve upon the cessation of the litigation.[550] At that point, he opined, the fluctuation in Mr Ackers’ anxiety and depression triggered by the litigation would end, making treatment much more effective and continued improvement would be expected.[551]
  4. [470]
    As to the extent of improvement, given Mr Ackers has a pre-existing depressive disorder, Professor Whiteford considered a full remission unlikely but expected significant improvement.[552] He maintained that view in cross-examination, acknowledging that because Mr Ackers had intensive treatment and had not experienced a full remission since his decompensation, it is unlikely his symptoms will entirely resolve.[553]

Dr Byth’s opinion of progress and prognosis

  1. [471]
    Dr Byth noted in his report of 13 June 2018 that despite counselling and antidepressant medication, Mr Ackers continued to complain of anxiety and depressed moods, along with low self-esteem and hopelessness, without feeling actively suicidal. Dr Byth then opined that Mr Ackers would require specialist psychiatric treatment for the following five years, possibly indefinitely.[554] As of 1 July 2020, Dr Byth suggested in light of Mr Ackers’ condition being treatment-resistant this could extend to 10 years.[555]
  2. [472]
    Dr Byth accepted that Mr Ackers had experienced a fluctuation in his condition from partial remission or temporary improvements and then relapses. While Mr Ackers might have had periods of socialising and going to Church, Dr Byth said he would be surprised given his level of anxiety and depression if these improvements could be sustained.[556]
  3. [473]
    Dr Byth opined that just because Mr Ackers felt better while on his trip to Hong Kong it did not mean his depression improved. He said often a chronically depressed person could experience periods of mania where they become determined to break out of their depression but that this was almost always short-lived and the depression usually returned when the person returned to their usual environment.[557]
  4. [474]
    Dr Byth’s opinion on 1 July 2020 remained that Mr Ackers’ major depression and anxiety had been largely treatment resistant, and Mr Ackers was unlikely to reach full remission.[558] Dr Byth concluded even with ongoing treatment Mr Ackers was likely to be left with chronic markedly severe major depression and anxiety arising from his work in 2015, despite additional treatment.[559]
  5. [475]
    Dr Byth disputed that the litigation prolonged Mr Ackers’ anxiety and depression as Mr Ackers had told Dr Byth that he found the legal process was only causing minor anxiety and that he was not unduly perturbed or upset by the case proceeding.[560] I doubt the reliability of that self-assessment by Mr Ackers. Dr Byth said he was not aware of any research or evidence which supports the general conclusion that psychiatric injuries recover upon cessation of the associated litigation and confirmed in his experience patients with chronic treatment-resistant major depression often continued to require treatment for their condition despite the resolution of legal proceedings in their favour or otherwise.[561] In substance this simply means each case turns on its own circumstances and there should be no presumption the end of litigation will result in improvement. In the present case a circumstance Dr Byth seems not to have appreciated is the adverse impact which litigation related events repeatedly had upon Mr Ackers’ condition.
  6. [476]
    There was a disconnect between Dr Byth’s pessimistic view of Mr Ackers’ prognosis and the medical records of Mr Ackers’ progress. There were repeated occasions during his testimony when it appeared he was ignoring or unaware of medical records at odds with his testimony. It was particularly obvious that Dr Byth’s opinion was founded upon Mr Ackers being much more housebound than the medical records showed. When questioned in various ways going to the disconnect between his opinion and the records, he conceded nothing in modification of his opinion. It was a feature of his evidence which undermined its reliability.

Conclusion

  1. [477]
    This litigation has been a source of fluctuating stress for Mr Ackers for years and there are repeated signs in the medical records of him regressing when having to deal with its demands from time to time.[562] The end of the litigation will at least diminish the frequency of fluctuation in his symptoms and in that sense bring improvement.  I accept Professor Whiteford’s view that the resulting steadier emotional existence will allow for more effective treatment and will likely result in some overall improvement.
  2. [478]
    Professor Whiteford acknowledged the improvement would not be to the extent of full remission but opined it would be “significant”. I accept Professor Whiteford’s opinion there will be improvement, though the word “significant” is apt to mislead in that it may be understood as meaning the improvement will return Mr Ackers to close to his pre-injury state. It will not. The reality is that there have been long periods between the demands upon Mr Ackers from time to time during the litigation, with little substantial improvement in those interim periods after the plateauing in his progress from 2018. Further, his condition may continue to regress from time to time, for the litigation is not the only kind of stressor that may prompt regression.
  3. [479]
    It is however reasonable to infer that, with this case over, Mr Ackers will experience some further moderate improvement in mental well-being and concentration. It is also reasonable to infer his capacity to re-engage more actively and productively in the community around him will improve moderately. These are considerations returned to below in the context of assessing future economic loss.

General damages

Assessment process

  1. [480]
    The general damages assessment process is regulated by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”) and the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) (“the Regulation”). Pursuant to s 306O if general damages are to be awarded the court must assess an injury scale value (“ISV”) on a scale of 0 to 100 to be calculated by reference to the general damages provisions prescribed in the Regulation and s 306P requires damages to be calculated by reference to those provisions.[563] Those provisions of the Regulation, at ss 129 and 130 require reference to schedules within the Regulation. In particular, sch 9 determines the relevant ISV for mental disorders by reference to a psychiatric impairment rating scale (“PIRS”) per schedules 10 and 11. Schedule 12 provides the monetary calculation provisions to identify relevant damages amount for the ISV.
  2. [481]
    The PIRS ranges within classes of level of impairment for separate areas of functional impairment are stipulated within sch 11. Each area is considered hereunder. I note sch 10 s 12 requires provision of an expert’s written report stating a variety of stipulated matters. I assume Dr Byth’s purported written PIRS report, is the brief note form content under the sub-heading Assessment of Permanent Impairment, within his reports of 13 June 2018 and 1 July 2020.[564] I will refer to his most recent assessments in the report of 1 July 2020.[565]

Dr Byth’s assessments

  1. [482]
    Dr Byth’s purported assessments suggested a higher degree of impairment than was revealed by the evidence, as was highlighted by the many examples from medical records which were drawn to Dr Byth’s attention in cross-examination. I do not overlook Dr Byth’s emphasis in his testimony that the assessment process does not merely involve comparing examples of indicators of impairment, which are mostly activities, without regard to the quality, motivation and perseverance underlying the activities.[566] But it seemed obvious Dr Byth had not closely scrutinised or placed particular weight upon the records of Dr Shebini which were provided to him. When the many disparities between Dr Shebini’s records and Dr Byth’s assessments were drawn to his attention Dr Byth’s responses tended to advocate for his existing views rather than directly address why he had not placed weight on the records in arriving at them. At one stage, when he did purport to address it, he suggested Dr Shebini only tended to write down the positive things that were discussed in each session.[567] It was an odd and speculative justification for ignoring what was written down.
  2. [483]
    I turn to the separate areas of functional impairment assessed.

Self-care and hygiene

  1. [484]
    Dr Byth assessed a class 4 level of impairment, that is severe impairment. Examples of impairment indicators in the schedule refer to needing supervised residential care and the prospect of accidental or deliberate self harm if unsupervised. This assessment is justified by reference to indicators falling well short of that. Moreover, the indicators referred to, for example that Mr Ackers still needs to have daily assistance from a carer, are unsupported by the evidence. Indeed his mother confirmed Mr Ackers is able to do things around the house for himself.[568]
  2. [485]
    Mr Ackers doubtless derives support from Ms Baker but it appears from the records that she is not essential to the physical process of Mr Ackers looking after himself adequately. The percentage impairment ranges and examples of indicators for class 3, moderate impairment, and class 2, mild impairment suggest on the known evidence that Mr Ackers is in the upper range of impairment within class 2, mild impairment.

Social and recreational activities

  1. [486]
    Dr Byth assessed a class 4 level of impairment, that is severe impairment. Yet the examples for that include “never leaves own residence”. The evidence shows Mr Ackers does leave his own residence, for an array of activities.
  2. [487]
    Mr Ackers has partaken not only in relatively isolated activities like boating but has also engaged in other recreational activities with a more social aspect. For example, he derived enjoyment from going to the gym, regularly going bowling and went on an international holiday. Some of this activity has been in company with Ms Baker, whose presence likely gives him some confidence in his attempts to engage in the community. The percentage impairment ranges and examples of indicators for class 3, moderate impairment, and class 2, mild impairment suggest Mr Ackers falls within the upper range of impairment within class 2, mild impairment.

Travel

  1. [488]
    Dr Byth assessed a class 3 level of impairment, that is moderate impairment. Yet the examples for that include “can not travel away from own residence without a support person”.
  2. [489]
    In contrast the example for class 2 is “can travel without a support person, but only in a familiar area, for example, to go to the local shops or visit a neighbour”. This example is more apt to Mr Ackers’ habits. He falls within class 2, mild impairment.

Social functioning

  1. [490]
    Dr Byth assessed a class 4 level of impairment, that is severe impairment. An example for that includes “can not form or sustain long-term relationships”. Yet Mr Ackers’ relationship with Ms Baker continues, albeit platonically, and there is some evidence of him “reaching out to old friends”.
  2. [491]
    The evidence suggests Mr Ackers falls towards the lower end of impairment for class 3, moderate impairment.

Concentration, persistence and space

  1. [492]
    Dr Byth assessed a class 4 level of impairment, that is severe impairment. Again, Mr Ackers’ state is materially better than suggested by that level’s examples, one of which is that impaired concentration is obvious even during brief conversations. He would have lifted himself to give evidence at trial but he exhibited sustained periods of sound concentration. I anticipate his concentration problems are more likely to come to the fore when engaging in mundane activities which are unlikely to provoke the same intensity of focus which Mr Ackers mustered at trial.
  2. [493]
    The records reveal problems with his concentration and memory were troubling him into 2018 but seem to have improved. He fared well keeping himself entertained during a COVID-19 lockdown, is a keen listener to podcasts and audio books and reads, though the extent of his absorption and retention of content is less clear. He does puzzles though he takes a long time to complete them. He has sufficient focus to cook for himself. He rated his memory 7 out of 10 in mid-2020, which Professor Whiteford suggests would be consistent with class 2 impairment. 
  3. [494]
    The assessment is borderline as between class 2 and 3. He falls into the lower end of the range for class 3.

Adaption

  1. [495]
    Adaption is the area of functional impairment dealing with employability. Dr Byth assessed a class 4 level of impairment, that is severe impairment
  2. [496]
    I would have readily favoured a less severe assessment had Mr Ackers successfully progressed the pursuit of further study or voluntary work.  He has not. I accept the class 4 level assessment.

Median class score and calculation

  1. [497]
    Section 6 sch 10 requires the calculation of a median score on the assessments listed in ascending order, rounding up to the nearest high number. Thus, 2,2,2,3,3,4 results in a median score of 3. The total class score equals 16.
  2. [498]
    As s 4 requires, the next step is to apply that data to the s 7 conversion table, which gives a percentage impairment result of 17%. That is the pre-injury rating.

Pre-existing impairment

  1. [499]
    Where there exists a pre-existing impairment, as there was here, viz, the dysthymic disorder, the same process as above is applied to the pre-existing disorder.
  2. [500]
    Dr Byth’s assessments and calculations for that disorder went unchallenged, appear unremarkable on the known evidence and I accept them. They give rise to a pre-injury rating of 5%.

PIRS

  1. [501]
    Pursuant to s 5, 17% less 5% gives rise to a PIRS of 12%.

ISV

  1. [502]
    Pursuant to sch 9, an example of a mental disorder with a PIRS rating between 11% and 30% is a serious mental disorder. It has a range of ISV’s of 11 to 40.
  2. [503]
    Section 9 sch 8 permits the consideration of other matters in assessing the ISV for Mr Ackers. I earlier summarised Mr Ackers’ account of his present state and his recorded progress. It is clear his injury has had an all-pervasive effect upon his existence. Nightmares, ruminations, flashbacks, low self-esteem, anxiety, impaired memory, lack of concentration, lack of motivation and agoraphobia have all plagued his mind. His stutter, tremor, incontinence and loss of libido are all concerning and embarrassing physical manifestations and reminders of his mental illness. His sense of worth as a member of the community with a working future is gone. His everyday enjoyment of life and his capacity to enjoy the company of others has been grossly diminished. He experienced a very significant loss of the amenities of life, the degree of which was initially quite devastating and, after some modest improvement, plateaued from 2018. While some further improvement is expected post litigation his condition will never experience full remission and he will not fully regain the amenities of life he previously enjoyed.
  3. [504]
    In my conclusion his ISV should fall at about the two thirds point of the 11 to 40 range. I assess his ISV as 30.

General damages

  1. [505]
    The application of an ISV of 30 to the relevant table, table 6, of the general damages calculation provisions in sch 6, gives rise to a general damages calculation of:

($41,200 base amount) + ((30 – 25 ie 5) x $2,360 = $11,800) = $53,000

  1. [506]
    I will award general damages in the amount of $53,000.
  2. [507]
    Section 306N of the Act precludes payment of interest on general damages.

Statutory process for assessing loss of earnings

  1. [508]
    The maximum award a Court may make for damages for loss of earnings is limited by s 306I Workers’ Compensation and Rehabilitation Act 2003 (Qld) to an amount equal to the present value of three times Queensland Annual Time Earnings (“QATE”) average weekly earnings as published by the Australian Statistician for each of the weeks of the period of loss of earnings. That maximum is not going to be reached in the present case.
  2. [509]
    Section 6 of the Act defines loss of earnings as relating to both past and future loss in these terms:

loss of earnings means –

  1. (a)
    past economic loss due to loss of earnings or the deprivation of  impairment of earning capacity; and
  2. (b)
    future economic loss due to loss of prospective earnings or the deprivation or impairment of prospective earning capacity”

The Act therefore contemplates that either of the value of the loss of earnings or the value of lost earning capacity is a measure of loss of earnings.

  1. [510]
    As to the calculation of loss, s 306J of the Act relevantly provides:

306J When earnings can not be precisely calculated

  1. (1)
    This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
  2. (2)
    The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
  3. (3)
    If the court awards damages, the court must state the assumptions on which the award is based and the methodology used to arrive at the award. …”

Past economic loss

Past loss of earnings

  1. [511]
    Mr Ackers was 45 at the time of injury and is now 51.
  2. [512]
    Mr Ackers claims past economic loss on the basis his earnings at Council at the time of his injury were $1,314.03 net per week (inclusive of a one off payment and allowances). That calculation of those net weekly earnings is not in dispute.
  3. [513]
    Mr Ackers submits that his past economic loss should be quantified as being that defined weekly loss multiplied by the weeks since he ceased work to the date of judgment. For ease of computation, I shall round that period when assessing damages to 325 weeks.
  4. [514]
    Such a claim does not take the optimistic course of contending his weekly earnings would have increased, though Council contends it is still optimistic because it assumes he would have remained with the Council.
  5. [515]
    Council seeks a discount for pre-trial contingencies of 20%. It contends there is a real possibility Mr Ackers may have been dismissed, referring to a substantial overpayment of payroll tax by the payroll unit in 2015, discovered after Mr Ackers left Council, as an example of the kind of significant errors which could result in dismissal.[569] That has echoes of the flawed assumption that Mr Ackers ought be blamed for any payroll unit mistake. In any event the point is that it cannot be assumed as a certainty that Mr Ackers would have remained at Council and that, if he did not, he would have promptly regained employment elsewhere earning as much as he had been at Council. There also exists the prospect that if Mr Ackers had not been injured his existing depressive illness may eventually have been aggravated by the occurrence of further workplace stressors or other life stressors resulting in him ceasing work. However, it is now known there were in fact no other such life stressors which occurred in the meantime. I accordingly adopt a moderated discount for contingencies of only 7.5%, so that his award will be 92.5% of the total otherwise arrived at.
  6. [516]
    Using the aforementioned weekly amount as quantifying his loss, before discounting his past loss of earnings is $1,314.03 x 325 weeks = $427,059.75 x 92.5% = $395,030.27.

Past loss of superannuation

  1. [517]
    Past superannuation on that amount is also claimed, at 12.5%. That rate seems to have been adopted in Mr Ackers quantum statement without explanation. It appears from his letter of appointment[570] that the rate should be 12%,[571] however Council accepts the use of a rate of 12.5%.[572]
  2. [518]
    The claimed amount also seems to have been related to net income but it should be 12.5% of gross income, which was $88,270.61 per annum.[573] Adopting the same weekly approach as above, his past loss of superannuation is calculated as: gross annual income of $88,270.61 ÷ 52 = $1,697.51 a week x 12.5% = $212.19 a week x 325 weeks = $68,961.75.
  3. [519]
    I will allow $68,961.75 for past loss of superannuation.

Interest on past economic loss

  1. [520]
    The total past economic loss is $395,030.27 + $61,402.82 = $456,433.09.
  2. [521]
    The statement of claim seeks interest per s 58 Civil Proceedings Act 2011 (Qld). Section 306N of the Act requires interest on damages compensating past monetary loss must be related in an appropriate way to the period over which the loss was incurred and not be more than at the rate for 10 year Treasury bonds at the beginning of the quarter in which the award of interest is made. That rate was 1.72%.[574]
  3. [522]
    Given the accumulation of loss was of even progression I would halve the above rate to apply to the whole of the loss, as follows: 1.72% x 0.5 = 0.86% of $456,433.09 = $3,925.32. I will accordingly award interest on past economic loss of $3,925.32.

Past special damages

Past special damages

  1. [523]
    The plaintiff claimed $162,706 for past special damages constituted in summary by:
  • $27,699.35 Medicare

  • $94,585.45 Bupa
  • $5,047.32 pharmaceuticals
  • $22,654.08 travel
  • $12,719.80 hospital and medical.”[575]
  1. [524]
    Council did not dispute the past special damages claim.[576] Such detail of it as was provided is unremarkable and I accept the total claimed, subject to the need to uplift it somewhat to allow for the inevitable accumulation of some additional such costs in the time pending judgment. That ought be a modest, not a temporally proportionate, uplift because the very substantial concentration of claimed costs were incurred long before trial, as is apparent, for example, from Mr Ackers’ schedule of hospital and medical expenses.[577]  In the circumstances I will round the claimed sum up to allow a sum of $164,000 for past special damages.

Interest on past special damages

  1. [525]
    I would apply a similar approach to interest on past special damages as to interest on past economic loss but adjust the moderation of the relevant rate to reflect the reality that the substantial majority of special damages was accumulated well before the half way point of the whole period between injury and judgment. Accordingly, I would only discount the interest rate by 20%.
  2. [526]
    I would therefore calculate interest on past special damages as follows: 1.72% x 0.8 = 1.376% of $164,000 = $2,256.64 .
  3. [527]
    I will accordingly award interest on past special damages of $2,256.64.

Wilson v McLeay damages

  1. [528]
    A claim for so-called Wilson v McLeay[578] damages at the rate of $150 a day during Mr Ackers two in-patient stays in the Cairns clinic over a total duration of 159 days. Its premise is that Mr Ackers’ mother visited from Brisbane for two to three weeks and others visited so that each day such visitors provided Mr Ackers with what he deposes was “much needed emotional support and assistance with tidying my room, running errands, washing, buying snacks and drinks and bringing items of need and comfort”.
  2. [529]
    The claim is reminiscent of that presented to McMeekin J in McAndrew v AAI Limited,[579] where there was no evidence of the expenses incurred or the need for the visits in connection with the plaintiff’s treatment. I respectfully agree with McMeekin J’s summary of the applicable principle, derived from Wilson v McLeay:

“The general principle that applies is that the visits need to be reasonably necessary for alleviation of the plaintiff’s condition. Visits prompted merely by love and affection are not compensable.”[580]

There is no evidence the visits here were necessary to alleviate Mr Ackers’ condition. There is no evidence the running of errands of convenience for the sustenance and physical convenience of Mr Ackers was necessary to alleviate his condition in a way the delivery of sustenance and physical convenience in any event provided in the in-patient setting could not achieve. This really only leaves the emotional support provided by the visits and there is no medical evidence that support was necessary for alleviation of his condition. I am prepared to infer, as McMeekin J did in McAndrew, that the management of his psychiatric condition must have derived some assistance from the supporting presence of his loved ones, including his mother who flew to Cairns. However, by reason of the evidentiary deficiencies I assess only a modest sum. I will allow $1,500 for Wilson v McLeay damages.

Future economic loss

Future loss of earnings

  1. [530]
    Mr Ackers claims future economic loss on the basis he would have continued in employment until his “notional retirement age”, evidently 67.[581] While no other evidence was proffered in support of the selection of that age, it was not challenged and is a reasonable approximate notional point for calculation of future loss. His 67th birthday is less than a month over 15 years away.
  2. [531]
    In the circumstances I will, pursuant to s 306L of the Act, adopt a multiplier derived from a rate of 5%, premised upon him working another 15 years, which is a multiplier of 540.1.[582]
  3. [532]
    Mr Ackers claims future economic loss due to loss of prospective earnings on the premise he would have continued to earn the aforementioned $1,314.03 net per week to retirement.  The claim effectively quantifies the loss of prospective future earnings on the assumption he will not regain any income earning capacity. I do not accept that assumption.
  4. [533]
    I have found that with the conclusion of this case Mr Ackers will experience some moderate further improvement in mental well-being and concentration and be able to re-engage more actively and productively in the community around him. It is reasonable to infer his moderately improved capacity will allow him to perform at least some remunerative work.
  5. [534]
    The field of available work would be narrowed by Mr Ackers’ on-going limitations.  It is doubtful Mr Ackers will regain the mental strength to cope with stressors in a workplace reminiscent of the workplace events which resulted in his injury. This makes it unlikely he will improve sufficiently to resume employment in his special field of payroll or in the capacity of a supervisor or in a workplace involving regular surges in workload and associated hours of work. Given the temporal pressures of most forms of full-time work the range of suitable full-time work options would likely be so limited that it is more realistic to consider the worth of his residual income earning capacity based on it being capacity to work part-time. Mr Ackers’ level of impairment is unlikely to improve to the point where he will successfully undertake further study or specialised training to qualify for significantly remunerated work. This leads to the conclusion that Mr Ackers’ residual income earning capacity ought be assessed on the basis of his moderate improvement resulting in him being able to perform some unskilled part-time work.
  6. [535]
    The parties, being planted in the opposite camps of no improvement and significant improvement, advanced no evidence about the extent of availability of suitable unskilled part-time work for a person of Mr Ackers’ age. I proceed on the assumption such work will be available but that Mr Ackers is not assured of always being employed to perform it. Allowance should be made for the likely reduced field of work mentioned above and for the level of disadvantage Mr Ackers will be at in competing with others, even for unskilled part time work. I bear in mind the anticipated improvement will not be instantaneous and that even in time there will inevitably be variability in the availability and duration of periods of part-time employment. In my conclusion, averaged out over the years ahead his residual capacity to earn an income will likely equate with a capacity to earn an average of $10,400 per annum, which is an average of $200 a week. I will make a modest global reduction to his claimed loss of future income, on that basis.
  7. [536]
    I accordingly adopt a reduced weekly net income figure, reducing $1,314.03 by $200 to $1,114.03.[583] Using that amount, his future economic loss, subject to discounting for contingencies, may be calculated as $1,114.03 x 540.1 = $601,687.60.
  8. [537]
    Mr Ackers concedes there should be discounting of future economic loss by 20% to allow for the vicissitudes of life. This is a somewhat higher discount than is ordinarily conceded by a plaintiff for future contingencies. Council contends the discount should be substantially higher, at least 40%. It is appropriate there should be some uplift of the discount which may otherwise be appropriate because, even had the facts of this case not happened, Mr Ackers’ pre-existing condition materially heightened his future vulnerability to reduced or lost earning capacity resulting from aggravation of his pre-existing condition
  9. [538]
    Both experts in the case agreed Mr Ackers was vulnerable to the exacerbation of his pre-existing condition. Dr Byth agreed the dosage of anti-depressant medication Mr Ackers had been taking when he worked for Council was the maximum dose and a reduction in it would have risked exacerbating his condition.[584] Professor Whiteford considered that if such a dose was necessary Mr Ackers would have remained vulnerable to an exacerbation of his condition if exposed to psychological stressors.[585]
  10. [539]
    Given Mr Ackers’ past vulnerability to depression, Professor Whiteford concluded a major psychosocial stressor, if sufficiently severe, would carry a very high risk of a deterioration of his depression. Professor Whiteford used Mr Ackers’ separation from his wife in 2012 as an example of a sufficiently severe psychosocial stressor.[586] As mentioned earlier, it transpires there has not been such a severe stressor, separate from the events with which this case is concerned. Nonetheless it obviously remains a material risk into the future.
  11. [540]
    Matters of degree are involved in this inherently imprecise exercise but in my assessment of the evidence a discount of 40% is materially too high and a discount of 20% is slightly too low. In my assessment the appropriate discount should be one quarter, that is, 25%.
  12. [541]
    Applying a discount of 25%, for contingencies, to $601,687.60 gives rise to an award for present day value of future loss of earnings of $451,265.70.

Future loss of superannuation

  1. [542]
    Applying that process to calculating an award for future loss of superannuation I would reduce the weekly gross income figure of $1,697.51 used in calculating past loss of superannuation, by $200, giving a weekly gross income of $1,497.51.
  2. [543]
    I calculate the present day value of the loss as $1,497.51 x 12.5% = $187.18 x 540.1 multiplier = $101,095.92 - 25% for contingencies = $75,821.94.
  3. [544]
    I will allow an award of $75,821.94 for future lost superannuation.

Future special damages

Recurring future special damages

  1. [545]
    Mr Ackers claims recurring future special damages for the course of his life expectancy in three categories.
  2. [546]
    First, he claims for ongoing consultations with his general practitioner on an average of once a month at $30 a visit, which equates to $6.92 per week (30 x 12 ÷ 52). This appears to be a reasonable approach, even allowing for some moderate improvement in his condition.  I will adopt it.
  3. [547]
    Second, Mr Ackers claims for the ongoing purchase of pharmaceuticals at $68 a week. The approximation is supported by his existing pharmaceutical costs. It is reasonable to infer his moderate improvement should result in some diminution of his medication needs so I will adopt a weekly sum of $60 for future pharmaceuticals.
  4. [548]
    Third, Mr Ackers claims for an estimated 140km travelled per week, at 50 cents per kilometre, to medical appointments, rehabilitation classes, specialist appointments and the like. This equates to $70 a week. The claim is challenged on the basis it was not supported by any evidentiary detail. That want of proof does not eliminate the undoubted fact Mr Ackers will need to travel to various appointments related to the management of his condition. However, it is a reasonable inference the likely improvement in his condition and his consequent further productive re-engagement in society will see a material easing in his travel in connection with the management of his condition. Indeed, on his own claim he only anticipates seeing his GP once a month. It is realistic to anticipate there will be many weeks when he does not need to travel to attend appointments related to his condition at all and I will assume such travel would average out at about one trip a fortnight.
  5. [549]
    At the time of his quantum statement Mr Ackers lived at Mount Peter, which I take judicial notice is about 18km from the Cairns CBD, a round trip of 36km. Such a distance fortnightly equates to 18km per week. At the claimed 50 cents per kilometre that is $9 a week. I will allow that amount.
  6. [550]
    Mr Ackers recurring weekly future special damages for his life expectancy will be a weekly amount of $6.92 + $60 + 9 = $75.92 a week.
  7. [551]
    I will calculate the present day value of the loss as: $75.92 x 827.1 multiplier = $62,793.43 - 25% for contingencies = $47,095.07

Fixed future special damages

  1. [552]
    Mr Ackers claims fixed special damages in three categories.
  2. [553]
    The first two categories are $51,750 for specialist treatment for five years and $56,750 for electro shock therapy. The first seems to be based on the evidence of Dr Byth in his report of 13 June 2018 that Mr Ackers will need to remain in “specialist outpatient [psychiatric] treatment over the next five years, including counselling and an antidepressant and major tranquilliser medications” costing $15,750 plus Dr Byth’s opinion he “would not be surprised if he required 35 days of psychiatric hospitalisation, and a course of 10 ECT treatments, which would cost $36,000”.[587] Council does not dispute it is appropriate to allow a global amount, in the order of the $15,750 proposed, for the probability Mr Ackers will require some further psychiatric care in the short term.[588] On the basis that encompasses the whole of the anticipated psychiatric care it is an unremarkable approach, and I am content to adopt it in combination with the third category discussed below. I do not accept the much more speculative proposal for hospitalisation and ECT treatments. There is no evidence Mr Ackers’ treating psychiatrist has in mind such treatment. Mr Ackers has not been hospitalised since mid-2018. Further, the proposal is obviously premised upon Mr Ackers’ condition remaining entrenched without improvement after judgment and I have concluded it will improve.
  3. [554]
    The second category is unsupported by any apparent or credible evidence and I will not allow it. It may be based on Dr Byth’s opinion Mr Ackers may need to continue the same treatment in the first category for up to ten years.[589] If so it is sufficient to note that is at odds with my findings as to post-trial improvement.
  4. [555]
    The third category of ongoing hand therapy, physiotherapy, speech therapy and specialist reviews in a global amount of $10,000 also lacks any specific evidentiary support. It is reasonable to infer some additional therapy and other specialist support will be required in the short term but the lack of evidentiary assistance means a conservative approach is apt. I will allow a global amount of $5,000.
  5. [556]
    The combined global amounts I would allow for fixed future special damages is therefore: $15,750 + $5,000 = $20,750. The amount relates to the short-term future so a contingencies discount is not apt.

Conclusion re total damages

  1. [557]
    The above findings give rise to the following calculation of total damages to be awarded:

General damages

 

$ 53,000.00

Past economic loss

 

 

 

 

 

$456,433.09

Past loss of earnings (including loss of non-cash benefits)

 

$395,030.27

Past loss of superannuation

$61,402.82

Total

$456,433.09

Interest on past economic loss (excluding general and special damages)

 

 

$3,925.32

Past special damages

 

$164,000.00

Interest on past special damages

 

$2,256.64

Wilson v McLeay damages

 

$1,500.00

Future loss of earnings

 

$451,265.70

Future loss of superannuation

 

$75,821.94

Future recurring special damages

 

$47,095.07

Fixed special damages

 

$20,750

Sub-total

 

$1,276,047.76

Less payments by Local Govt. Workcare[590]

 

-$ 176,915.07

Total damages

 

$1,099,132.69

  1. [558]
    The plaintiff should have judgment in the above amount.

PART C: ORDERS

  1. [559]
    Costs should follow the event subject to the cost implications of offers as between the parties.
  2. [560]
    My orders will allow for the potential need to hear and decide costs.
  3. [561]
    My orders are:
    1. Judgment for the plaintiff in the sum of $1,099,132.69.
    2. I will hear the parties as to costs, in the event they are not earlier agreed, at 9.15am on 2 February 2022 (parties having leave to appear by telephone or videolink).

Footnotes

[1] Robertson v State of Queensland & Anor [2021] QCA 92, [114].

[2] (2005) 222 CLR 44.

[3] (2005) 222 CLR 44, 57 [35].

[4] Michell Chapman of that branch likely falls into a similar category though she was not specifically pleaded in this context.

[5] Ex 6 PAA-2 pp 7-10.

[6] Per ASOC [4A(a)], [(b)] and [(c)] (read with 3A).

[7] Per amended statement of claim [4A(c)] and [4A(d)] (read with 6 to 40).

[8] Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, 475, 519; Commonwealth Bank v Barker (2014) 253 CLR 169; Gramotnev v Queensland University of Technology (2015) 251 IR 448, 481-482, 461-462.

[9] T16-10 L16.

[10] ASOC [42A], [42B], [51A], [54], [68].

[11] Ex 6 [3] – [16].

[12] T4-51 L18.

[13] Ex 6 [16].

[14] Ex 6 [16].

[15]T7-66 L23.

[16]As it turned out, as so often is the case, it would have been more efficient to follow the conventional course. There was substantial additional oral evidence in chief and his lengthy affidavit (487 paragraphs) opened up factual debates to an extent the more strictly controlled presentation of oral testimony would not have.

[17] T8-67,68.

[18] T3-37 L43, T3-37 L2.

[19] Ex 39; Ex 40.

[20]Ex 6 [468].

[21]Ex 4A [5.1], Ex 5A pp 11, 14.

[22]Ex 5A p 12.

[23]Ex 5c p 2.

[24]Ex 4A [11.9], Ex 5A p 16.

[25]Ex 6 [468].

[26]Ex 6 [46].

[27]T13-42 L19.

[28]T13-42 L25.

[29]Ex 6 [130].

[30]T3-47 L2; T3-49 L15.

[31]Ex 6 [134]-[136].

[32]T13-38 L26.

[33]Eg T9-9 LL10-43; T10-40 LL1-11.

[34]T9-9 L12.

[35]T13-39 LL17-25.

[36]Ex 6 [32].

[37]This is consistent with the recipients to whom Mr Ackers directed an email of 15 January 2015, Ex 6 PAA-3 p 15.

[38]T3-50 LL7-28.

[39]T3-75 LL17-23.

[40]T10-20 L2.

[41]Ex 6 [137], pp 15-17.

[42]T13-42 LL1-13; Ex 81.

[43]T13-42 LL10-17.

[44]T13-33 LL1-15.

[45]It follows they did not have an opportunity to put a counter version of events before this court.

[46]T12-88 L31 – T12-89 L10; T13-42 L27 – T13-44 L21.

[47]T13-44 LL23-41.

[48]T13-44 L45.

[49]Admitted on the pleadings.

[50]T4-85 L37; T12-90 L27.

[51]T4-86 L1. This is consistent with Ex 46, attachment 2.

[52]T3-74 L35; T13-4 L2.

[53]T4-87 L9; T12-90 L30; Ex 56.

[54]T12-92 L31; Ex 56.

[55]T12-91 L28; Ex 56.

[56]T3-53 LL2, 22.

[57]T10-5 LL2, 45.

[58]T10-41 LL3-18.

[59]T13-56 L43.

[60]T10-55 L9.

[61]T10-56 L17 – T10-57 L5.

[62]T10-57 L30.

[63]Ex 6 [131]-[133].

[64]Ex 6 [91].

[65]Ex 6 [116] suggests she was a replacement provided in response to the absence of the staff on leave but Mr Ackers’ testimony, at T3-75 LL17-24, suggested she had been in place since February covering for another finance branch officer on secondment to the unit, Ms Fleur. On the other hand at T4-91 L12 Mr Ackers conceded Ms Slatyer did not commence until the timekeepers went on leave.

[66]T3-50 L24.

[67]Ex 6 [218].

[68]Ex 6 [115].

[69]Ex 6 [118].

[70]Ex 6 [121].

[71]T9-10 LL20-45.

[72]T15-28 L4; T15-41 LL10-25.

[73]T13-57 L5.

[74]T13-57 L15.

[75]Ex 6 [138], [211].

[76]T13-56 LL30-37.

[77]Ex 6 [114].

[78]T4-91 L38; T3-92 L5.

[79]The first net increase in the depleted staffing level did not occur until Ms Tier’s permanent replacement, Ms Brangwen commenced in mid-July and Ms Lukawski continued in the unit.

[80]Ex 6 [142].

[81]Ex 6 [195]-[198].

[82]T13-47 L23.

[83]An exhibit apparently sourced from sourced from Outlook calendar records, a fallible source - T8-57 [7].

[84]T10-43 L38.

[85]T9-5 L41.

[86]T14-20 L10-12.

[87]Ex 6 [189]-[193]; T5-74 L26.

[88]Ex 6 [188].

[89]Ex 6 [119].

[90]Ex 6 PAA-2 p 8.

[91]Ex 6 [232].

[92]T13-8 LL18-26.

[93]T13-9 l1; Ex 17.

[94]T13-9 L42 – T13-10 L2.

[95]Ex 62 p 1.

[96]Ex 62 p 1.

[97]T7-67 L10.

[98]Ex 6 [248].

[99]Ex 6 [251].

[100]Ex 6 [123].

[101]Ex 6 [127].

[102]Ex 6 [127].

[103]Ex 16.

[104]Exhibit 2 (annexure B to the amended response to request for further and better particulars).

[105]Eg T5-10 L36.

[106]T5-12 L43; T5-13 L12.

[107]T5-20 LL18-33.

[108]The addition of the hours in red in the “hours worked in addition to default” column.

[109]T5-5 L46.

[110]T5-35 L24; T8-58 L17.

[111]T13-41.

[112]15.12.14: Mr Ackers did log into the system that day T5-43 l38; 27.1.15: Mr Ackers’ calendar recorded a meeting that day T5-44 L20, Ex 6 PAA-4 p 39; 10.3.15: Mr Ackers swiped into the building at 7.34 am T5-45 L6; 20.4.15: Mr Ackers’ calendar recorded meetings that day T5-47 L46, Ex 6 PAA-4 p 51.

[113]Ex 17. The form recording work on 23 and 24 May 2015 erroneously records it as 2014. It also includes a further two hours without specifying the detail of it.

[114]I record I was not materially assisted on this issue either way by the evidence of Kelly Metcalf, who worked in the position of payroll coordinator, previously classified as payroll supervisor, with the Council in 2019. The effect of her evidence was the unit could not then discharge its duties without some staff having to work additional hours outside ordinary working hours. I was not satisfied the circumstances then were sufficiently similar to the era under consideration to draw any reliable conclusion from her evidence on this issue. The same applies to Council’s attempt to use the evidence of Ms Moller in a like way.

[115]Ex 46, attachment 3.

[116]T9-31 L39.

[117]T15-37 LL20-30; T15-39 L27.

[118]T15-40 LL35-46.

[119]T9-42 L3.

[120]Ex 6 [449].

[121]T5-54 L12.

[122]T5-58 L3.

[123]T9-59 L12.

[124]Ex 19.

[125]T5-54 L26 – T5-55 L13.

[126]T9-54 L40.

[127]T9-53 L20.

[128]T5-60 L20; T9-57 L19.

[129]Ex 46.

[130]Ex 46, attachment 4.

[131]T9-35 L5.

[132]T15-41 LL37-43.

[133]Ex 6 PAA-2 p 8.

[134]T13-48 L45.

[135]Ex 6 PAA-15 p 181; T13-49 L5.

[136]T13-49 L9.

[137]Ex 6 [157].

[138]Ex 6 [157].

[139]T13-69 L34.

[140]Ex 6 PAA-5 p 92.

[141]T13-69 LL36-46.

[142]T13-70 L37 – T13-71 L28.

[143]T15-61 L23.

[144]Ex 75.

[145]Ex 76.

[146]Ex 74.

[147]T15-28 L40.

[148]T15-71 L28.

[149]T15-75 L 30.

[150]T15-63 L43; Ex 23 p 2.

[151]T15-70 L41.

[152]Ex 6 PAA-8 pp 103-105.

[153]Ex 6.

[154]T3-72 L30.

[155]Ex 6 [289].

[156](2002) 60 NSWLR 371.

[157][2017] QCA 12.

[158]ASOC [85(i), (j), (p)].

[159]Ex 23.

[160]Ex 6 pp 98-101; duplicated in Ex 44.

[161]T15-100 L25.

[162]T9-19 L35.

[163]T15-63 L20.

[164]Ex 6 [280].

[165]Ex 6 [280].

[166]Ex 6 [281].

[167]Ex 6 [283].

[168]Ex 6 PAA-8 pp 103-105.

[169]The letter actually uses the word “collaborate” but contextually meant “corroborate”.

[170]T6-21 L6.

[171]Ex 6 [285].

[172]T9-23 L15.

[173]T15-34 L25.

[174]T9-23 LL27-36.

[175]T9-59 LL17-27.

[176]Ex 6 [475].

[177]Ex 6 [298].

[178]T9-23 L43.

[179]Ex 6 [476]-[479].

[180]T10-30 L3.

[181]T10-29 L25 – T10-30 L43.

[182]T10-31 L5.

[183]Ex 6 [299].

[184]T13-7 LL39-48.

[185]T13-8 LL9-16.

[186]T9-59 L30.

[187]T9-67 L42.

[188]T9-68 L4.

[189]To remove doubt, I nominate “about 24 June” because that was the Wednesday of the week after the adverse outcome of Thursday 18 June, which allows sufficient time for Mr Ackers’ withdrawn state to have become apparent.

[190]Ms Lunt testified that she noticed an outward behavioural change in Mr Ackers during his time working at Council, with him becoming more emotional and crying a lot.  She testified to having seen him cry half a dozen to a dozen times and that he lost weight and his hands shook more.  However, she could not recall at what stage she noticed these changes and the crying, so it is not possible to know whether she witnessed these outward signs of Mr Ackers’ stress and distress as early as the phase presently under consideration or at a later stage.

[191][2017] 1 Qd R 337, 377.

[192]Ex 6 [322]-[323].

[193]Ex 6 [140].

[194]Ex 6 [316].

[195]Ex 17.

[196]Ex 6 [331].

[197]T3-38 L2.

[198]T6-59 L10.

[199]T8-62 L15.

[200]T10-56 L7.

[201]T10-56 LL5-8.

[202]T13-5 LL11-47.

[203]T13-5 L25.

[204]T15-104 L45 – T15-105 L10.

[205]T15-105 L43; T15-106 LL20-27.

[206]T13-59 L5.

[207]T3-75 L35 – T3-76 L29.

[208]T3-77 L11.

[209]T3-77 L45 – T3-78 L1.

[210]Ex 61 p 1.

[211]T6-58 LL 26-31.

[212]T15-108 L5.

[213]Ex 6 [336]; T6-52 L35.

[214]Ex 6 ex p107. The certificate is obviously derived from a pro forma. In an obvious error on the face of a document which was only issued on 1 July, it states Mr Ackers was unfit “up to and including 1st July 2015”.  That date was obviously placed in the wrong spot, as also occurred where the certificate stated Mr Ackers had “been unwell since 3rd July 2015”. The two dates were obviously intended to be placed the other way around.

[215]T3-77 L41; T3-78 L13.

[216]T15-105 L46.

[217]T15-107 LL9-34.

[218]T12-59 L43.

[219]T12-76 L22.

[220]T12-59 L44.

[221]Ex 6 [338]-[339].

[222]T6-52 L42.

[223]T15-108 L18.

[224]T15-109 LL35-45.

[225]T15-110 L1.

[226]T15-108 L25.

[227]T15-110 L44.

[228]T15-43 L16.

[229]Ex 6 [340].

[230]Ex 6 [341].

[231]T3-79 L15; T13-63 L37.

[232]T13-64 l45 – T13-65 L2.

[233]T3-78 L45 – T3-79 L15.

[234]T6-55 L21.

[235]T10-18 LL10-30.

[236]T14-29 L38.

[237]T10-18 L34.

[238]T10-53 L8; T10-54 L2.

[239]T10-54 LL27-37.

[240]T4-30 L2.

[241]T6-60 L19; T4-30 L7; T6-57 L316.

[242]T10-62 LL4-7.

[243]T10-62 L10 – T10-63 L25.

[244]Ex 6 [350].

[245]T10-33 L35.

[246]T10-60 LL21-41.

[247]T10-61 L25.

[248]T4-3 LL10-24.

[249]T10-35 LL15-24.

[250]T10-35 L9; T10-36 L7; T10-37 L3.

[251]T10-37 L9.

[252]T15-108 L28.

[253]T15-108 LL30-43.

[254]Ex 6 [354]-[355].

[255]Ex 6.

[256]T15-111 L44 – T15-112 L5.

[257]T4-17 L30.

[258]T13-65 L30.

[259]T13-66 L20.

[260]T13-10 L15.

[261]Ex 6.

[262]Ex 6 [368].

[263]T13-67 L10.

[264]T13-10 LL24-36.

[265]T13-67 LL20-26.

[266]T13-68 L4.

[267]T15-112 LL14-30.

[268]T15-112 LL32-38.

[269]T13-72 LL40-44.

[270][2007] QCA 366, [49].

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

[272] Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48.

[273] Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, 53.

[274](2002) 60 NSWLR 371.

[275][2017] QCA 12.

[276](2002) 60 NSWLR 371.

[277]Ibid 376, 377.

[278]Ibid 389.

[279](2001) 207 CLR 562.

[280]Ibid 50.

[281]Ibid 55.

[282][2017] QCA 12.

[283]Ibid [73].

[284]Ex 45.

[285]Ex 46, attachment 6.

[286]T9-40 L43.

[287]T9-40 L27.

[288]T15-44 LL2-21.

[289]T15-44 L38 – T15-45 L3.

[290]Eg T15-81 LL10 – T15-83 L9.

[291]The Council exhibited medical certificates dated 29 January 2021 and 26 July 2021 (when the respective phases of the trial were about to commence) in which Ms Faithful’s GP opined without explanation that giving evidence and being cross-examined would be significantly detrimental to her health.

[292]T13-10 L44 – T13-11 L4.

[293]T13-11 L9.

[294]T13-73 LL8-33.

[295]T13-73 L38.

[296]Ex 9.

[297]Ex 9.

[298]Ex 28.

[299]T4-42 L25.

[300]T4-41 L42 – T4-42 L19.

[301]T6-70 L20.

[302]Ex 10.

[303]Ex 10.

[304]T12-73 L12.

[305]T4-43 L7.

[306]Ex 30.

[307]Ex 24.

[308]T6-35 L37 – T6-36 L15.

[309]Ex 10.

[310]T4-43 L39.

[311]T4-44 L1.

[312]T6-86 L35.

[313]Ex 10.

[314]T4-14 LL3-31.

[315]T4-15 LL10-15.

[316]T12-75 L35.

[317]T4-45 L20.

[318]Ex 9.

[319]T13-73 L42.

[320]Ex 9.

[321]Ex 6 [370].

[322]T6-62 L38 – T6-63 L2.

[323]Ex 6 [372].

[324]T13-82 L40.

[325]T13-81 L44 – T13-82 L8.

[326]T13-80 L24; T13-81 LL5-8.

[327] Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, 504-505.

[328]Per Williams JA in Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486, 490 explaining New South Wales v Lepore (2003) 212 CLR 511.

[329]Ex 57.

[330]T13-74 L2.

[331]T11-58 L29.

[332]T11-54 LL27-35.

[333]T11-85 LL5-10.

[334]T11-85 L33.

[335]Ex 6 [482].

[336]Ex 6 [482].

[337]T11-14 L16.

[338]Ex 6, PAA-4 48, 49, 50.

[339]Ex 10.

[340]Ex 6 [377].

[341]Ex 6 [483].

[342]T11-33 L7.

[343]T11-56 L44.

[344]T11-88 L38.

[345]T4-11 L34.

[346]Ex 48.

[347]T13-85 L35 – T13-86 L10.

[348]T13-87 LL21-33.

[349]T13-88 L23.

[350]Eg T6-86 L44 – T6-87 L9; T7-10 L13.

[351]Ex 45.

[352]Ex 45.

[353]Ex 45.

[354] Jones v Dunkel (1959) 101 CLR 298.

[355]Pleaded as a breach at ASOC [85(l)].

[356]ASOC [85(n)].

[357]ASOC [85(m)].

[358]ASOC [85(o)].

[359]ASOC [85(k)].

[360]ASOC [5(c)], [85(d)].

[361]A failure in substance alleged as a breach at ASOC [85(c), (e) and (n)(i)].

[362]Ex 10.

[363]Mr Ackers’ pleading to that effect is the subject of admissions by Council. Nothing turns on the point but it appears from the content of the four copies of the Performance Improvement Action Plan in evidence that there may have been a greater number of review meetings than that.

[364]T7-37 L33 – T7-39 L15.

[365]T7-34 L3.

[366]Ex 10.

[367]Ex 49.

[368]T11-59 L3.

[369]T11-69 L15.

[370]T11-58 L29.

[371]Ex 6 [482].

[372]T11-37 L24; T11-58 L42.

[373]T12-66 L30.

[374]T11-81 L38 – T11-82 L1.

[375]T12-7 L40; T12-11 L5.

[376]T12-11 L37.

[377]Canvassed in Mr Ackers’ evidence in chief at T4-16 – T4-28; T4-30 – T4-37.

[378]T11-78 L44 – T11-79 L7.

[379]Ex 6 [484].

[380]Ex 6 [383], [384].

[381]FAD [54], [55].

[382]T9-69 L29.

[383]T9-69 LL9-16.

[384]T9-69 L20.

[385]T11-87 LL1-8.

[386]T11-40 LL35-45.

[387]T11-41 LL27-37.

[388]T11-67 L15.

[389]T11-67 L43.

[390]T11-83 L25; T11-85 L44 – T11-86 L15.

[391]T15-30 L43.

[392]T15-31 LL9-21.

[393]T15-97 L10.

[394]T15-96 L36.

[395]T15-31 L24.

[396]T15-113 L18.

[397]T4-29 LL17-24.

[398]Ex 61 p 3.

[399]Ex 6 [394].

[400]Ex 5a p 4.

[401]Ex 5b p 3.

[402]Ex 5a p 4.

[403]Ex 5a p 5; Ex 63.1A.

[404]Ex 5b p 3.

[405]Ex 63.1 p 9.

[406]Ex 63.1A.

[407]Ex 63.1A.

[408]Ex 63.1A.

[409]Ex 5a.

[410]Ex 5a p 6.

[411]Ex 63.1AE.

[412]Ex 63.2A.

[413]Ex 5a p 9

[414]Ex 5a.

[415]T14-106.

[416]T14-73.

[417]Ex 63.3A.

[418]Ex 63.3A.

[419]Ex 5b p 4.

[420]Ex 4a.

[421]T10-84.

[422] Strong v Woolworths Limited (2012) 246 CLR 182, 190 [18], discussed in The Corporation of the Synod of the Diocese of Brisbane v Greenway [2018] 1 Qd R 344.

[423]Ex 4a p 11.

[424]Ex 4a p 9.

[425]Ex 4b p 11.

[426]Ex 4b p 6.

[427]Ex 4a p 12.

[428]Ex 4b p 2.

[429]T10-94; Ex 4b pp 2, 3.

[430]T11-3 to 5.

[431]T10-85.

[432]Ex 5a p 17.

[433]T14-100.

[434]Ex 5b p 6.

[435]Ex 5d p 12.

[436]Ex 5b p 6; Ex 5d p 12.

[437]T14-101.

[438]T14-87.

[439]T14-100.

[440]Ex 5b p 6.

[441]Ex 5c p 3.

[442]Ex 5b p 7.

[443]Ex 5c p 4.

[444]T14-105.

[445]T14-105.

[446]Ex 6 [486].

[447]Ex 39.

[448]T8-27, T8-44.

[449]Ex 63.3.

[450]T7-83 L7.

[451]T7-83 LL15-20.

[452]T7-83 L47 – T7-84 L2.

[453]T7-85 LL10-18.

[454]Ex 5b p 4.

[455]Ex 4a.

[456]Ex 39.

[457]T8-28.

[458]Ex 39.

[459]T8-29.

[460]Ex 39.

[461]T8-43 LL5-30.

[462]Ex 63.5.

[463]Ex 63.4.

[464]Ex 63.6.

[465]Ex 39.

[466]T8-20 L46 – T8-21 L4.

[467]T8-44 L23.

[468]T8-44 L27.

[469]T8-34, T8-39.

[470]Ex 39.

[471]Ex 39.

[472]T8-36.

[473]T8-5 L32.

[474]Ex 63.7.

[475]Ex 63.8.

[476]T7-92 L10.

[477]T7-91 LL22-34.

[478]Ex 64.1.

[479]T7-93 L10.

[480]T7-93 L13.

[481]T7-93 L30.

[482]T7-94 L14.

[483]Ex 63.9.

[484]Ex 63.10.

[485]T7-96 L6.

[486]Ex 63.11.

[487]T7-97 L35.

[488]T7-98 L27.

[489]T7-98 L43.

[490]Ex 63.12; Ex 63.13.

[491]Ex 63.14.

[492]Ex 64.2.

[493]Ex 63.15.

[494]T8-6 L43.

[495]Ex 63.16.

[496]T8-8 L6.

[497]T8-7 L46.

[498]T8-11 L23.

[499]Ex 63.17, Ex 63.18.

[500]T8-40 L4.

[501]T8-12 L34.

[502]T8-12 L1.

[503]Ex 63.19, Ex 63.20.

[504]Ex 63.21.

[505]Ex 63.22.

[506]Ex 63.23.

[507]Ex 63.27.

[508]Ex 63.24.

[509]T8-17 L38.

[510]Ex 63.25, Ex 63.26.

[511]Ex 4b [4.4].

[512]Ex 4b p 3.

[513]Ex 4a p 8.

[514]Ex 4b p 4.

[515]Ex 4a p 5.

[516]Ex 4a p 6.

[517]Ex 4b p 3.

[518]Ex 4b p 2.

[519]Ex 4b p 2.

[520]Ex 63.28.

[521]Ex 63.29, Ex 63.30.

[522]Ex 63.31.

[523]T8-25 L37.

[524]Ex 63.32.

[525]Ex 40.

[526]T 8-38, T8-44.

[527]T7-69 L32.

[528]Ex 11 [18].

[529]Ex 11 [14].

[530]Ex 11 [15].

[531]Ex 11 [16].

[532]Ex 11 [16].

[533]Ex 11 [23].

[534]Ex 11 [24].

[535]Ex 11 [19].

[536]Ex 11 [21].

[537]Ex 11 [12].

[538]Ex 11 [12].

[539]Ex 11 [20], [22].

[540]T7-74 LL1-23.

[541]T7-69 L10; T7-75 L6.

[542]T7-78 L20.

[543]T7-78 L23.

[544]Ex 11 [25].

[545]Ex 11 [13].

[546]T7-68 L25.

[547]Ex 5a p 15.

[548]Ex 5a p 15.

[549]T14-106.

[550]Ex 5d p 4.

[551]Ex 5a pp 17, 18.

[552]Ex 5a p 19.

[553]T14-107.

[554]Ex 4a p 9.

[555]Ex 4b p 7.

[556]T10-77.

[557]T10-78.

[558]Ex 4a p 11, Ex 4b p 6.

[559]Ex 4a p 11, Ex 4a p 12.

[560]Ex 4b p 9.

[561]T10-79.

[562]Some examples are listed by Professor Whiteford at Ex 5d pp 4, 5.

[563]The assessment should have regard to ISV values given to similar injuries in previous proceedings but the court was not referred to any said to be similar.

[564]Ex 4a, 4b.

[565]Ex 4b.

[566]T10-78 L46.

[567]T10-100 L1.

[568]T9-62 L14.

[569]T18-61 L25.

[570]Ex 6 PAA-2 p 9.

[571]It being unlikely he would not have taken up the generous contribution arrangement available.

[572]T17-38 L6.

[573]There may be instances in which superannuation is also paid on some additional payments but there is no evidence allowing any informed conclusion about that possibility here.

[574]Per RBA Statistical Tables, F2.1 Capital Market Yields, Commonwealth Government 10 year bond (rate at 1 October).

[575]Ex BB.1 for identification.

[576]T17-38 L31. Council indicated it was double-checking one component of the claim but did not subsequently suggest its checking had identified any error.

[577]Ex 11 Annexure A.

[578](1961) 106 CLR 523.

[579][2013] QSC 290.

[580][2013] QSC 290, [131] (citations omitted).

[581]Ex 11 [35].

[582]See table 4 of the appendices to Luntz and Harder, Assessment of Damages for Personal Injury and Death, 5th edition.

[583]An annual income of $10,400 would not attract income tax so there is no inconsistency in the present context of applying it in reduction of either a gross or net notional income figure.

[584]T10-85 LL10-36.

[585]Ex 5c p 2.

[586]Ex 5a p 17.

[587]Ex 4a [12.11], [12.12].

[588]T17-38 L48.

[589]Ex 4b [9.3].

[590]Ex 82.

Close

Editorial Notes

  • Published Case Name:

    Ackers v Cairns Regional Council

  • Shortened Case Name:

    Ackers v Cairns Regional Council

  • MNC:

    [2021] QSC 342

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    15 Dec 2021

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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