Hegarty v Queensland Ambulance Service [2008] HCATrans 121 (7 March 2008)

Last Updated: 11 March 2008

[2008] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B61 of 2007

B e t w e e n -

ROBERT WILLIAM HEGARTY

Applicant

and

QUEENSLAND AMBULANCE SERVICE

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 MARCH 2008, AT 9.54 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC: If the Court pleases, I appear with MR G.W. DIEHM and MR A. LUCHICH for the applicant. (instructed by Butler McDermott)

MR D.O.J. NORTH, SC: May it please the Court, I appear with my learned friend, MR M.T. O’SULLIVAN for the respondent. (instructed by Crown Solicitor for the State of Queensland)

KIRBY J: Yes, Mr Gageler.

MR GAGELER: Your Honours, the crunch point in the judgment of Justice Keane is at page 133 of the application book, paragraph [101], where his Honour says this:

The plaintiff’s case must fail on the basis that, on the balance of probabilities, even if the defendant had adopted the system of training advocated by the plaintiff, there is no sufficient basis for a finding that the defendant’s supervisors would have concluded from their discussion with the plaintiff and his wife that the only reasonable course was to advise the plaintiff to seek psychological assessment and treatment.

The system of training advocated by the plaintiff to which his Honour refers is a system of training of supervisors to identify signs of dysfunction in ambulance officers who are regularly exposed to trauma and it is a system that was contained in the defendant’s own program described extensively in her Honour’s judgment at first instance, that program being called Priority One and it is a system which on the plaintiff’s case ought to have been implemented in the best practice manner described in the evidence of Professor Bryant. Now, I will come to that in a moment.

The supervisors to which his Honour refers are: Mr Borger, who was the officer in charge of the ambulance station where the plaintiff was stationed; Mr Jacobson, who was a regional assistant commissioner; and Mr Lawler, who was a deputy commissioner for the State, significant people.

The discussions to which his Honour refers are numerous discussions between the applicant and Mr Borger over a four-year period and a single conversation but on a very significant occasion when the applicant was being awarded a service medal with each of Mr Jacobson and Mr Lawler and the substance of those conversations were pretty much the same. The substance of the conversations were, the plaintiff is not coping, his skill levels are dropping, he is becoming impatient with other officers and he needs to get out of town, he is too close to the people in the town and he is unable to detach in a professional way when he is treating them.

His Honour’s conclusion, in our respectful submission, that there is an insufficient basis for a finding that the only reasonable course was to advise the plaintiff to seek psychological assessment was infected by two basic errors and they are reflected in various ways in the discussion that one sees at paragraphs [95] through to [100] and they are really crystallised in the second sentence of paragraph [97] to which I will turn in a moment, but can I describe them.

The first is an error of fact in really failing to appreciate the way in which the plaintiff’s case was put, how issue was joined at trial and what the findings of the trial judge actually were in a number of critical respects. But the second and more fundamental error is really an error of principle in that his Honour, drawing too much from this Court’s decision in Koehler, to which he refers at paragraph [95], and making too much of the notions of privacy and the dignity of the individual to which he refers in paragraph [97], has really formulated a general proposition which is to this effect.

He is really saying that an employer acting reasonably in a discharge of a duty of care to the employee might come under an obligation to advise an employee to seek psychological assessment where the employer is faced with unequivocal signs of dysfunction, psychological dysfunction, but not, says his Honour – he says it in paragraph [97] and he says it elsewhere in those paragraphs around it – where the signs of psychological dysfunction could equally be explicable as a manifestation of dissatisfaction at work.

KIRBY J: It may be that the nature of this particular employment, ambulance service, which of its character is exposed to very stressful circumstance, distinguishes it from Koehler, but Koehler seems quite a strong principled case against you because it really does say, it is not really the obligation of employers to go fussing around and asking people their private stresses and intruding into their life. After all, your client wrote a letter asking for transfer not because of any condition of his own but because of asthma of his daughter or of some family member and he was into denial about his condition.

MR GAGELER: Yes, that is right, and the trial judge – just to be absolutely clear, this is an error of fact in Justice Keane’s judgment in the Court of Appeal – Justice Keane seems to have said in paragraph [97] and elsewhere that there was a deliberate choice on the part of the applicant not to disclose his own mental anguish. Her Honour found at paragraphs [80] to [81], page 39 of the application book, that he did not recognise his own symptoms. That appears to have coloured his Honour’s reasoning.

KIRBY J: That really does put in very sharp focus the concern that Justice Keane expressed, namely, that to overcome that hurdle you then have to intrude into his privacy and his sense of his own integrity and that is a very difficult thing to ask an employer to do.

MR GAGELER: Your Honour, stated at an abstract level and applied in a case such as Koehler that is entirely understandable, but your Honour’s distinction between Koehler and the average case of ordinary sort of work and the highly stressful circumstances in which ambulance officers find themselves working is entirely right.

KIRBY J: Well, now let me bring you to Fahy v New South Wales. Fahy, that is the policeman, is it not?

MR GAGELER: That is right, and there are cases and cases, but - - -

KIRBY J: Well, that is much closer to ambulance officers and the court there had similar reservations to those which are expressed in Koehler and Ms Fahy lost.

MR GAGELER: But in neither case did the court descend to formulating a proposition of the kind that one finds in paragraph [97], repeated even more starkly in - - -

HAYNE J: Which particular proposition in [97] are you there fastening on?

MR GAGELER: The words – I will not read the entire second sentence - - -

HAYNE J: “Vigilance must respect, and be exercised in a context” et cetera?

MR GAGELER: Yes:

at least where the only signs of possible dysfunction are equally explicable as the assertion of legitimate grievances –

So what his Honour seems to be saying, and it emerges even more starkly in the judgment of Justice Jerrard at page 109 at paragraph [31] - - -

KIRBY J: What paragraph?

MR GAGELER: Paragraph [31] at page 109. Really, the last two sentences of what his Honour said. What appears to be being said is that it is only where the manifestation is apparent to the employer rises to the level of a stress disorder or psychological dysfunction being the only explanation that the obligation to tap on the shoulder and suggest assessment, nothing more than assessment, is triggered.

KIRBY J: Is your point that in some employment, not perhaps the employment in Cerebos, but in employment like an ambulance driver or maybe a fire fighter, a police officer, the employer has to set up a system which will intrude into privacy and dignity to some extent simply because of the nature of the stresses and the denial that often accompanies those in order to cope with the stresses?

MR GAGELER: Absolutely, yes. Your Honours, can I just show you how - - -

KIRBY J: That did not seem to work in Fahy. I mean, there it was horrendous, the police officer was holding the victim together, she was - - -

MR GAGELER: There are different judgments in Fahy and there are different streams that come out of the different judgments, but could I show your Honour in this particular context how the issue was joined, relevantly to your Honour’s question. If you go to page 8, paragraph 8B of the application book you see the pleading. This is an extract from the statement of claim. It was alleged:

That risk of developing psychiatric injuries was a more than trivial risk of injury created by the Plaintiff’s workplace and/or work activities.

It was then alleged in paragraphs 8C through to 8F that certain conversations had taken place. Then over the page at page 10 in what was paragraph 11A(b) the allegation upon which the plaintiff succeeded at trial was:

the Defendant did not have in place a system whereby the Plaintiff’s supervisors –

with whom these conversations had taken place –

were trained to identify signs of dysfunction in personnel –

The way in which issue was then joined on the pleadings, if your Honours turn over to page - - -

KIRBY J: There was in place Priority One.

MR GAGELER: There was in place – but if your Honours go to page 13, paragraph 9B(b) of the defence:

the Defendant admits the allegations in paragraph 8B –

that is, that the risk of developing psychiatric injuries was more than a trivial risk created by the plaintiff’s workplace activities –

and it is for this reason that the defendant established the ‘Priority One’ program –

The conversations were denied, and if you go over to page 16, paragraph 13C(a) at the bottom of the page:

the Defendant, through Priority One, did have a system whereby employees could be referred, or could self refer, to qualified psychologists –

The real issue that was joined at the trial was in respect of whether the conversations had occurred and whether the supervisors had been properly trained. Her Honour was certainly entitled to treat it as not seriously in dispute, that had the conversations taken place, the proper implementation of the Priority One program would have led to the tapping on the shoulder of the applicant and the suggestion not that he get treatment but that there was an issue here and he should have an assessment.

KIRBY J: That seems to come down not to some very important legal principle but just to the very particular facts of this case.

MR GAGELER: Well, it could, but it does not.

KIRBY J: That would not be appropriate for special leave, of course.

MR GAGELER: No. It could come down to that but it does not because by reference to Koehler, as I have said, by reference to more general notions of dignity and privacy, his Honour in deciding the particular case - - -

KIRBY J: Yes, but his Honour has made those references in the context of the particular facts of this case where your client was giving other excuses and that is essentially the problem that you are positing the notion that they should have tapped him on the shoulder and intruded but that then becomes a very fact specific issue.

MR GAGELER: It is the difference between my case which is fact specific and looks at the particular systems that were in place in this particular employment and says that those systems which acknowledge the
existence of an issue about the psychological state of persons exposed to trauma were not properly implemented. That is the way I wish to put the case; it is fact specific. The way in which the case has been decided, however, in the Court of Appeal is not a particularly fact specific way; it is a way which elevates - - -

HAYNE J: What do you make of paragraph [102]? Is that not entirely fact specific and is that not the determinative disposition of it; “likelihood”, “supervisors trained” in the fashion identified by the plaintiff “would not, in the circumstances of this case, have intervened”?

MR GAGELER: Yes, that follows, your Honour that is another way of saying what is in [101] and it follows from the discussion in [97]. Now, [97], it really draws a dichotomy which is not warranted by the evidence and ought not, in our submission, intrude into the determination of just where in any particular case a duty of care requires an employer to take positive steps to refer an employee for assessment. We are only talking about assessment in the present case.

KIRBY J: You were going to tell me how you would distinguish this case from Fahy where the result was adverse to the plaintiff in a case where it was, in a sense, more dramatic and more, as it seemed to me and to, I think, the Chief Justice and Justice Crennan, more obvious that the police officer needed assistance.

MR GAGELER: Yes. Your Honour, to tell you the truth, I did not bring Fahy to Court with me, but the majority - - -

KIRBY J: You should always assume that judges are smarting under cases where they do not prevail.

MR GAGELER: Of course, yes. Can I put it this way, your Honour. I would wish to test the limits of the majority approach in Fahy and to commend the - - -

KIRBY J: Now you are becoming more interesting.

MR GAGELER: Commend the application, at least in circumstances of a case such as this, the minority approach. If the Court pleases.

KIRBY J: The Court does not need your assistance on this occasion, Mr North.

The primary judge, Justice Wilson, entered judgment for the applicant for $570,000 as damages for a psychiatric condition which, she found, was caused by negligence in respect of his employment by the respondent as an ambulance officer. The Court of Appeal of Queensland unanimously set this judgment aside. It did so on the basis that the applicant did not draw his condition clearly to the notice of the employer. It held that, to require the employer, of its own initiative, to investigate the circumstances of an employee’s personal life and stress would have been unreasonable in the circumstances as involving an intrusion into his privacy and personal dignity.

Having regard to recent decisions of this Court, including Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44 and New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021, noted by the Court of Appeal, we are not convinced that an appeal to this Court would enjoy reasonable prospects of success.

In his written argument, the applicant points to the very large cost burden that he now faces of the order of $500,000 and the fact that this was a test case for other ambulance officers in a like position. However, if it is likely, as we consider, that the applicant would fail in an appeal to this Court, we would only be adding substantially and unjustifiably to his cost burdens by providing leave. Other cases, of course, must be decided on their own facts.

Special leave is refused. It must be refused with costs.

AT 10.13 AM THE MATTER WAS CONCLUDED