Kozarov v State of Victoria [2021] HCATrans 101 (21 May 2021)

Last Updated: 24 May 2021

[2021] HCATrans 101

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M130 of 2020

B e t w e e n -

ZAGI KOZAROV

Applicant

and

STATE OF VICTORIA

Respondent

Application for special leave to appeal

GORDON J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 21 MAY 2021, AT 11.57 AM

Copyright in the High Court of Australia

MR J.T. RUSH, QC: May it please the Court, I appear with MR J.B. RICHARDS, QC, MR G.D. TAYLOR and MR A.M. DINELLI on behalf of the applicant. (instructed by Bowman & Knox)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR G.A. WORTH and MS N.A. WOOTTON, for the respondent. (instructed by Russell Kennedy)

GORDON J: Thank you. Mr Rush.

MR RUSH: Your Honours, this is a case, we say, that warrants a grant of special leave for two reasons. The first and primary basis for leave, your Honours, is that the Court of Appeal did not conduct a real review, and as a consequence fell into error by way of contradictions in overturning the trial judge’s finding in relation to causation.

GORDON J: Is that your ground 2 in your application?

MR RUSH: That is the first ground in the application, your Honour.

GORDON J: I see, yes.

MR RUSH: The second ground in the application concerns the nature and the scope of the duty of care as a consequence of that finding made by the Court of Appeal, in that the reasoning of the Court of Appeal is that the employer could not compel a safe system of work, and raises a point, we say, of general principle around the decision of this Court in McLean v Tedman, specifically that enforcing a safe system of work cannot be dependent upon whether that system is accepted by an employee. They are the two grounds ‑ ‑ ‑

GORDON J: If you are right on the second ground, does it mean that you need to address the factual error that you identify in the first ground?

MR RUSH: Yes, it does, your Honour, in this sense. The second basis arises on the reasoning of the Court of Appeal as a consequence of its decision to overturn causation of the primary judge. So, in that sense, we say that that second step, your Honour, in the Court of Appeal’s findings at 106 in relation to the way in which they went to the contract of employment is directly caused as a consequence of the way in which they overturned the trial judge’s finding on causation. We did notify the Court and our learned friends yesterday, your Honours, that we do not ‑ ‑ ‑

GORDON J: You no longer press ground 3.

MR RUSH: Correct, your Honour. Your Honour, can I very quickly turn to just some of the material facts. The applicant worked in the Serious Sexual Offences Unit of the Office of Public Prosecutions in Victoria and was exposed materially to ‑ ‑ ‑

GORDON J: For present purposes, and I think I speak for Justice Gleeson, I think we are aware of the facts, having read the application.

MR RUSH: Thank you.

GLEESON J: Mr Rush, is it significant that the plaintiff did not give evidence about what she would have done in August, if she had been offered screening?

MR RUSH: That is true, your Honour, and that is raised by the Court of Appeal, that there was no direct evidence of what she would have done. We do go to that in our reply, your Honour, as to say that consequent upon decisions of this Court that that really does not take matters very far at all in relation to someone looking retrospectively at conduct that may have occurred after an event has occurred in this situation.

GLEESON J: Accepting that it is a subjective test of causation, would it not be appropriate to take into account – where dealing with an omission - with a provision of a safe system of work – the reasonable response?

MR RUSH: Yes, indeed. That is the nub of our appeal in this case, your Honour, that what the Court of Appeal has done is overlooked material evidence that goes to the decision of the primary judge to accept, in this case, that the applicant would have co‑operated with a move to reduce her exposure to the sort of material that cause her post‑traumatic stress disorder.

Your Honour, when one considers the steps – the three steps – that were relied upon by the Court of Appeal – setting out the essential steps, as I referred to them, in paragraph 102 of the judgment, the first step is the important step, your Honours, in the sense that it required the applicant, in this case, to accept that she would undergo an assessment as a consequence of her condition when she returned to work on 29 August. She would undergo an assessment which would have exposed that she had post‑traumatic stress disorder.

GORDON J: When we get to the third step – which is really where the crux of the fight comes – is it, as I understand the way you put it, that you have an identified duty – safe system of work – you have breach and the breach is identified of a number of elements – active OH&S, screening, referrals and then what I will call steps to be taken, all of which were identified as breaches. Those steps had a number of steps. They included temporary and permanent rotation. They included other work. When you get to the causation question, at 106 to 108 in the Court of Appeal, is it that that, in effect, narrowed the duty or the breach by, in effect, only taking one element of it?

MR RUSH: Your Honour, we would contend that that is the way it was approached.

GORDON J: But is that right?

MR RUSH: No. We say it is not right, your Honour. It is not right because the approach has to be dependent upon the nature of the material that caused the breach and the counterfactual as a consequence of the breach.

GORDON J: I will put it more directly. As I read it, the breach was identified, in general terms, by reference to – I am dealing with the third step now – a number of possibilities were put forward – rotation, permanent, temporary, different work – so that they were set out as alternatives. When you get to, I think it is paragraph 739, the trial judge identifies them as being the appropriate mechanisms to look at for the purposes of causation. When you get to the Court of Appeal, they seem to take one aspect of that last step rather than all of them. Is that right, or have I misread it?

MR RUSH: Your Honour identifies that paragraph and it is also taken up in paragraph 733, and we would say it is right, your Honour. It is at paragraph 733 of her Honour’s judgment. Paragraphs 732 and 733 are important paragraphs of her Honour’s judgment. So, 732 deals and sets out the reasons why this applicant would have co‑operated with the first step.

They importantly set out that she would have understood, and the nature of the work she was doing in this area - sexual offences unit. She had been outspoken about it. She would not have been surprised if her managers had followed up with some form of response of the nature of screening and, they say, she co‑operated on 9 February 2012 when this all culminated, and she was eventually moved out of the unit.

Now that reasoning, your Honours, is important in this sense, on the causation issue. Here, you have an applicant who has consented to the first essential step, with an understanding of why that would be a proper and good thing. At 733 her Honour says that:

Screening by a clinician briefed about the work, and notification to the employer of the outcome, would prompt the taking of steps to reduce a staff member’s exposure to trauma by altering work allocation, or arranging time out, or rotation to another role, if required.

GORDON J: This is why I am asking. There are three, in effect, elements to the duty and general terms and then the breach. The question is, I think – I am trying to work out whether that is the question of principle. It is the link between the causation question and then the identified duty and breach having been identified earlier. Is your complaint that they have narrowed the duty and the breach by their reasoning?

MR RUSH: Your Honour, that is one complaint. But the principal complaint in relation to ground 1 is the nature of the reasoning of the court in narrowing that breach, that they have accepted understanding in relation to the first step. But then, as your Honour will see by going to the next part of that paragraph:

The plaintiff’s cooperation with exploring alternative roles at the OPP after 9 February 2012 supports the likelihood that she would have cooperated at the earlier stage –

and the important part, not referred to by the Court of Appeal:

if appropriately informed of the rationale for such actions.

So that is the nub, if you like, your Honour, of our complaint around ground 1. I am reminded, your Honours, at paragraph 106 of the Court of Appeal judgment there at 328, at line 30 they note:

It was not suggested that the defendant could have compelled the plaintiff to move to another unit that did not involve work relating to sex offences. Such action by the defendant would have been precluded by the terms of the plaintiff’s contract of employment with the defendant within the SSOU.

GORDON J: The reason I cannot quite understand that argument for the moment is that that was the only option available. The other options available were the ones identified in paragraphs 733 and 739.

MR RUSH: Well, what the Court of Appeal is effectively saying in 106 is – to start with, your Honour, we do not know where that came from, because the contract of employment was not argued in the Court of Appeal or at trial in relation to this point.

GORDON J: Was it in evidence?

MR RUSH: It is in evidence, your Honour. So that is first point, but we have noted in our application that if one goes to - on the point that your Honour raises in relation to the duty and scope of the duty of the employer, that the contractual matter, once an alternative system is set up the onus falls we say here on the respondent to prove that there was some impracticability that could not have put in place the alternatives that are referred to by the trial judge.

So that is, we say, a real point of principle in relation to this case when one considers how the Court in McLean v Tedman referred to the duty of an employer to ensure that the employment contract and the system of work was followed, enforced and that the contract of employment cannot, we say – it is no answer to say that an employee might have refused to conduct his or herself in accordance with a system of work and just leave it there. The nature and scope of the duty of care to enforce that system of work, as a common law obligation, the employer must prescribe, must warn and command and enforce obedience.

Where that finding of the Court of Appeal at 106 leaves this position is that, in effect, an applicant, here an employee, knowing she suffered from PTSD, knowing that – because, your Honours, the Court of Appeal has adopted a course which really does not take into account in any way the fact that the applicant here understood on the counterfactual that she was suffering from PTSD and would not have acted in a manner that was consistent with her understanding of that and, having regard to what your Honour has raised around the breaches of the duty of care understood as a consequence of the education, the vicarious trauma policy which is referred to by the Court of Appeal.

A desultory understanding of it from the managers in this unit would have educated, and so here the applicant would have been in a position to understand the necessity of complying with a safe system of work. That does not excuse, we say, an employer, and it cannot excuse an employer from enforcing the safe system of work.

GORDON J: Can I put it another way? Is this your proposition – I just want to make sure I understand this analysis. Is it that if she had said she would not have been transferred out but was showing clear signs of this psychological injury, it was insufficient for the State to say, “We don’t need to do anything further”?

MR RUSH: That is precisely our point, your Honour.

GORDON J: Is that because of the findings of the trial judge which are not being overturned by the Court of Appeal?

MR RUSH: That is one reason, your Honour, but we would say that here there was a primary obligation on the employer. It just cannot leave a position where ‑ ‑ ‑

GORDON J: I will put it differently. That is not inconsistent with the findings of the trial judge?

MR RUSH: No, it is not, your Honour.

GLEESON J: It may not necessarily matter, but is the causation hypothesis to be addressed before or after 29 August – in other words, are we to assume that she was screened and discovered that she had PTSD before the time that she would otherwise have written her distressed email, or are we to assume that it would have been after?

MR RUSH: Your Honour, the sentinel event, as found and agreed to by the trial judge, agreed to by the Court of Appeal, is that the emails indicate – were an effective red flag putting the employer on notice that something should be done. So, it is as a consequence of that conduct, on her return to work after sick leave, then of the clinical assessment, then she would understand she has PTSD and then the obligations that the trial judge points to in 733 fall on the employer to ‑ ‑ ‑

GLEESON J: She might even understand, or have some idea at that point, that the email itself illustrates the symptoms of PTSD.

MR RUSH: Your Honour, what the contradicted evidence was is that the email was such that it showed the signs of hypervigilance and hyperreactivity, I think actually was the word, and that that was the trigger. If she had understood what she was suffering from at the time - when the email was written and when the inference that if she had been informed of that she would have agreed to one of the options, if she had understood that, then that should have been taken into account by the Court of Appeal and it was not.

So, the Court of Appeal has made the decision on causation without any discussion or finding in relation – or consideration in relation to the point that if there had been no breach, that she would have understood the course of action that was being proposed. So that is the attack that we make on the overturning of the causation issue because it is clear, as we have taken the Court to at 733, that it was a primary consideration of the trial judge that, firstly, there was the obligation on the employer to set up the system of work, and then the trial judge finds that if she had been informed
of her condition, she would have co‑operated, as she did when she was informed of her condition in February 2012.

Now that is, your Honours, the way in which ground 1 was put, and I think I have attempted to explain ground 2 and the way in which the Court of Appeal has just gone to a contract without, we say, any proper consideration of the contract. But in making the finding it does at 108 completely usurps the common law obligation on an employer to enforce a safe system of work.

GORDON J: But enforce a safe system of work that has a number of options available it.

MR RUSH: Correct, your Honour. All those options are to reduce exposure to the offending material. So, whether it be rotation, whether it be time out, whether it be some reclassification of the work that she was given – all of those options reduce and take away the offending material and so there is no exacerbation of the post-traumatic stress disorder of which she suffers.

One matter, your Honours, that is important in relation to this, there was uncontradicted evidence from Professor McFarlane, which we do refer to in our application that, in his clinical experience - which is vast – when people have an understanding of the condition from which they suffer, here PTSD, that then they respond positively with the explanation as to why they have to move on. That evidence, again, was not referred to at all by the Court of Appeal in overturning the judge’s finding on causation. There was no real review in that sense of the material that was important to the trial judge’s determination on this point.

GORDON J: Thank you, Mr Rush. Mr Walker.

MR WALKER: May it please your Honours. There is no doubt from the vantage point of a visitorial grant that this is a poignant case, bearing in mind the undoubted way in which the psychiatric illness was contracted, and its seriousness. But none of that, to any degree, tempers the requirement for a finding of actionable loss by reason, in particular, of that component of the chain of necessary findings, causation being found on the balance of probabilities.

This is a case where the evidence throws up the evident possibilities. As Justice Gordon has pointed out in a slightly different aspect of the same factual inquiry, the uncontested holdings concerning available expedience were more than one in number, but – but, there was only one, according to the trial judge, accepting the expert evidence, and then accepted in the Court of Appeal until this morning without challenge to it, there was only one of those various expedients which would have avoided the harm - further harm sued on by the plaintiff.

GORDON J: Can I test that proposition just for the moment to make sure I understand how that is put? If you take paragraphs 732 and 733 that we were taken to by Mr Rush, and you then take following at 739, is it to be read as, on these available alternatives that there were available alternatives to address the harm?

MR WALKER: But only one which would have avoided.

GORDON J: Can you make good that proposition for me?

MR WALKER: Yes, can I try and do that now?

GORDON J: Yes, please.

MR WALKER: I want to pick it up by way of preamble back a couple of pages – application book 237, paragraph 728, where her Honour is reviewing the expert and occupational health material which would have set up, for what I will call in shorthand, screening. Then at the foot of page 238, paragraph 731, there is a finding about what I might call the, in general, efficacy of such screening.

GORDON J: That is step 1?

MR WALKER: Yes.

GORDON J: Yes.

MR WALKER: Then at 732, there would have been the taking up of the offer of screening and these are matters that we, in vain, challenged in the Court of Appeal.

GORDON J: And lost?

MR WALKER: We lost, yes. The introduction of what became dubbed step 3 is really at the foot of 732, and then we move to 733.

GORDON J: Just before you move to that step, is it right – as the applicant would have it – that the material which commences “She had previously been outspoken” down to “2012” relevant to step 3?

MR WALKER: Yes. I mean, both in principle and on this case it would be absurd to argue otherwise.

GORDON J: Yes, thank you.

MR WALKER: Paragraph 733 introduces this notion of various expedients, numbered in three, although no doubt they could be teased out in a number of different ways. But they are called here:

altering work allocation, or arranging time out, or rotation to another role ‑ ‑ ‑

GORDON J: Yes.

MR WALKER: What I want to flag for your Honours is that the passages I am about to go to show that the first two are, as it happens, expedients that would not have worked to avoid the harm in this plaintiff’s case – no doubt because of the intensity of the pre‑existing position. Then her Honour finds the likelihood of co‑operation at the earlier stage. That I think is a return to the steps 1 and 2 findings against us.

Professor McFarlane’s evidence is referred to in a way that we would advise your Honours to regard as the preferred position according to her Honour, a holding, that because the plaintiff was not rotated out of her position she faced risks – that is, not mere work allocation or time off. She had, after all, already been engaged in the dealings which your Honours have read about, which involved time off and work allocation, reassignment of files and the like because of what I will summarise, without intending to deprecate the significance of the plaintiff’s position, as being overwork.

At the foot of 733, her Honour – not us in our argument, not the Court of Appeal in their disposing of it – but her Honour had therefore sensibly, with great respect, focused the attention by selecting of the expedients, rotation out as the one that needed to be inquired into with respect to step 3. That is why when one comes to 739, page 241, one sees that her Honour understands that it is, at step 3, still a question of the plaintiff’s response to an offer. I get that from line 4 of 739. There is the step 1:

offer of occupational screening –

and then:

flexibility regarding case/work allocation and rotations, if offered in combination –

GORDON J: So, it is not limited just to rotation?

MR WALKER: Not in that paragraph.

GORDON J: Right.

MR WALKER: I am going to come back to it.

GORDON J: That is not surprising given the contents of 737 and 738.

MR WALKER: Quite so. But it is Professor McFarlane, cited in each of 737 and 738, who had opined, as her Honour held in 733, that it was because the plaintiff was not rotated out of her position – in other words, that mere different work allocation or time out was not going to be enough, he opined, for this plaintiff.

But that does not mean, of course, that the safe system of work should not include a suite of possibilities. The implementation, the failure to implement I should say, referred to in 739, is failing to have in effect a system of work. That is not where one would look for a focusing for this plaintiff on the fact that only, unfortunately, rotation out would have helped.

But you see that in 742, where her Honour then turns to the question – the step 3 question – the balance of probabilities rather than a set of various possibilities – the balance of probabilities - her Honour says this:

I am satisfied on the balance of probabilities that, supportive and appropriate intervention at the end of August 2011 would have led to work related screening and in all likelihood would have revealed that the plaintiff –

and then the expression is:

needed to be rotated out –

So, her Honour is picking up the professor’s opinion – quoted by her, cited by her in 733 – picking up that this plaintiff needed to be rotated out – needed to be – meaning that was the only way of the available, reasonable responses that would have avoided her harm. That is how the ultimate causation finding is reached.

GORDON J: So, is the last sentence of 742 - do you say that the Court is to read that as limited to rotation out?

MR WALKER: Yes, yes. The actions that her Honour has referred to in the last line on page 242 is the welfare inquiry, the occupational screening and then one sees:

with the option to rotate her from the SSOU –

So, her Honour is taking the cue from the professor for this plaintiff. The other options – which a safe system would have, in general – they were not appropriate for her. That is why her Honour says that the plaintiff needed to be rotated out.

GORDON J: There is no finding about that though, is there? There are only the findings that you have taken us to that rotation out was the mechanism to be adopted.

MR WALKER: There are findings. These are findings that, for her, only rotation out would have ‑ ‑ ‑

GORDON J: I understand your submission.

MR WALKER: There was no contest about that in the Court of Appeal. The plaintiff never put the argument that something less than rotation out would have avoided her harm. That would have been perverse. It was totally contrary to their theory of the case below and in the Court of Appeal. What there was, in the Court of Appeal, was briefly the raising – it appears inadvertently – of a possibility that the respondent was arguing in the Court of Appeal that rotation out could have been and, therefore, should have been, compulsory – forced.

GORDON J: When you say the respondent, you mean the applicant in this case.

MR WALKER: The applicant before your Honours. There was inquiry from the Bench – are you saying that she could be forced to rotate? Answer, no. You saw reflection of that in the exchange of argument in this court where we point out that there are suggestions of that in the way in which the application is expressed in‑chief and our friends in reply disavow it and say no, it is a matter of being offered an option of rotation and that, with respect, is correctly capturing the way in which ‑ ‑ ‑

GORDON J: I think it is put at a different level, as I understand Mr Rush’s submissions, and I put it to him directly. I thought that what he was now suggesting – and it may be a change, I do not know – was that if the applicant had not agreed to be transferred out – or showing what are described as clear signs of some significant or massive psychological injury, would it be sufficient for the State of Victoria to say we do not need to do anything further.

MR WALKER: No.

GORDON J: He has said – his case was that they had to do something further and that was consistent with the scope of the duty and the breach.

MR WALKER: That is entirely new.

GORDON J: It might be new, but I think that is the case that is now being put, as I understand it.

MR WALKER: No, it cannot be put, and your Honours will not find that in the writing of this Court. The plaintiff does not say here, “I can win even if I cannot show that more likely than not I would have accepted rotation out, because if I had not accepted rotation out, somehow, I could have nonetheless been removed from the damaging conditions”. That was never put.

To the contrary - and all the writing here, in this Court, and the argument in Court of Appeal, once it was raised and scotched that they were saying that the State could force this professional to step back from her duties, once that was raised and scotched in the Court of Appeal, it returned to how it had been done at trial, namely, that she should have been the beneficiary of a system of work which, upon the sentinel event, would have led to the offer of screening which she would have taken up, finding in favour of the plaintiff, that the screening would have produced what I will call PTSD or VT findings, and both of those, on the balance of probabilities, steps 1 and 2.

Then step 3, necessary to avoid what I will call the exacerbation loss, step 3 required her response to that hypothetical position, what would have been but for the wrong, to be established on the balance of probabilities. That is how it was run at trial, hence the references to rotation, the only one of the systemic options which would have helped this plaintiff, being offered, and her Honour finding she would have accepted it. The significance of her Honour’s finding is it reflects the way in which the case was run, dependent upon the plaintiff taking it up.

Now, there was never a fallback that said, at trial, or in the Court of Appeal, that your Honour or your Honours do not need to attach the outcome of the case to the balance of probabilities as to how the plaintiff would have responded to a diagnosis because even if she had, perhaps, exhibiting the very ailment in question, even if she had refused, and your Honours know we relied in the Court of Appeal on the attitude she showed not only by her protest on 29 August that she loved her work and wanted to keep doing it, but also her somewhat subsequent application, successfully, for promotion, which would have increased the intensity of the same kind of work.

So, we, relying on that, the battle lines at trial were how would the plaintiff have responded to an offer, not to enforcement, and the contract does lie under this in the sense that there was never any suggestion that under the contract we were obliged, or she was entitled to what I will call forcible redeployment.

GLEESON J: When you say “offer” – I do not have the pleadings, but was the case limited in that way, was it not expanded to at least include advice as to what she would do?

MR WALKER: I am not intending by what I am saying to eliminate mentoring, advice, encouragement, of course.

GLEESON J: Right.

MR WALKER: It would be not much of an offer and not very reasonable simply to say, “Look, you take it or leave it. I don’t care what you do, but as it happens, experts are saying you shouldn’t keep doing this kind of work because it’s hurting you but let me know if you feel like it”. We are not suggesting anything like that ‑ ‑ ‑

GORDON J: Why was the contract, in the terms it was put by the Court of Appeal, of such significance?

MR WALKER: Only because there had been raised the question to counsel in the Court of Appeal, “Are you saying she could have been forced to rotate?” Answer, “No”. That was an express exchange in the Court of Appeal. Hence, paragraph 12 of the written reply in this Court at page 364 where the language is requiring an employer to offer – offer the applicant a means by which to avoid the trauma.

That is their response to our pointing out that it had already been raised and scotched in the Court of Appeal whether or not the contract permitted forcible redeployment, and it was accepted the contract did not permit forcible redeployment and it had never been so argued at trial.

GORDON J: Despite the contract? This is my point I was raising with Mr Rush – despite the contract? What was the State to do? If you step back from this, the irony is significant.

MR WALKER: Your Honours, I am trying to subdue the inherent interest of what I accept is an important social question, but I stress it is a social question. It transcends the law of tort.

GORDON J: I do not know if it is a social question. It is a question about – it is about the law of torts. It is the intersection of the law of torts, the duty and the breach and causation and whether or not, by this approach, we have taken the concept of “causation” and reduced, in effect, retrospectively, the scope of the duty and the breach.

MR WALKER: Yes.

GORDON J: You say on a factual level that has not arisen?

MR WALKER: No, because of the way in which the case was framed and run ‑ ‑ ‑

GORDON J: I understand that.

MR WALKER: ‑ ‑ ‑ and decided, as it happens, at both levels below. It is possible to imagine a case where what your Honour has put to me would be a very appropriate case for a grant of special leave, regardless of prognostications as to the outcome on appeal because it can hardly be gainsaid that those are important issues and causation cannot be allowed to artificially assume some distorting role on, in particular, scope or content as well as breach. I accept all of that.

That is not this case, because the case was run on the basis that in order to get causation, step 3, there had to be a showing on the balance of probabilities, as to how the plaintiff would have responded to the diagnosis, and ‑ ‑ ‑

GORDON J: In relation to this finding of fact, which is ground 1, it is itself a conclusion which is dealt with very shortly in paragraphs 106 to 108. There are two events. Is that the way it is put? There is the event of 29 August and then there is the subsequent promotion. Are they the two things that are said somehow to give rise to a different finding of fact?

MR WALKER: I think it is fair to say yes, so long as on both sides, that is trial judge and Court of Appeal, it is recognised that in both tribunals of fact there was of course consideration of the many months of lead up in which what I will call overwork had been the subject of concern, including by the plaintiff. So that is context, but yes, when it comes to what happens following 29 August on the hypothetical, what might have been had there been no negligence, it does come down to the Court of Appeal pointing to the significance of the attitude, the events of 29 August and acted on, not in the immediate aftermath of that contretemps but some months later with respect to the promotion ‑ ‑ ‑

GLEESON J: Is it fair to say that these reasons suggest that the Court of Appeal did not take into account at all the possibility that the diagnosis might have played on her mind in her behaviour in late August?

MR WALKER: No, it is not possible to read their Honours’ reasons as leaving out the most obvious move from step 1 to step 2 – from step 2 to step 3. Step 2 is the diagnosis being imparted to her and they ‑ ‑ ‑

GORDON J: Put it another way, what has an email, written defending the quality of her work and her desire to work, got anything to do or say anything about whether or not she would have accepted advice and an offer for rotation out?

MR WALKER: Because it is evidence, very strong evidence of an actual state of mind and you can never put actual state of mind ‑ ‑ ‑

GORDON J: But, Mr Walker, that state of mind is directed to someone challenging her, not about her mental state but challenging her about her, in effect, desire – about her turning up to work.

MR WALKER: No, that exchange is much more than what I call a work hours thing or whether you are answering a telephone, but that is an exchange where, given the background that we have earlier referred to, the supervisor was obviously aware of, sensitive to, personal stressors in the plaintiff’s life. So, yes, it did have to do with her psychological position.

GORDON J: But he was saying not a rotation out, he was saying get back to work.

MR WALKER: But, your Honours, all I am saying is her state of mind, actual state of mind, could never be put to one side, would always be relevant in considering how much would that have altered if we do what is required for the counterfactual, if there had been no negligence and you had the screening accepted, the clinical diagnosis imparted and explained properly. That was a factual question for step 3.

There is a Warren v Coombes appeal in relation to her Honour’s finding. Her Honour’s finding, if I may say so, looks to what happened after she had had the long service with the children and reflected. Now, that was, as the Court of Appeal said, a different time, place and circumstance from what one has to suppose was the counterfactual, which would not be after the rejuvenating and enlightening effect of time with your own children as opposed to time with these ghastly files.

GORDON J: I see the light, Mr Walker.

MR WALKER: I am sorry, your Honour, I was just trying to answer your Honour’s question. May it please the Court.

GORDON J: Yes, Mr Rush.

MR RUSH: Mr Dinelli will reply, your Honour.

GORDON J: Mr Dinelli.

MR DINELLI: May it please the Court. There are three points. The first is to deal with the way it was put below. Your Honours do not have the transcript of Mr Rush below in the Court of Appeal, but it was put to him by Justice Beach that he appreciated the policy had other options, being terms of evidence on causation in this case.

As I read the expert evidence, really what was called for here, after he had investigated or sent her away for screening or whatever, there really was everything and Mr Rush responded in these terms: “You had to remove her, we would say, your Honour, from dealing with the graphic material that she was being exposed to, and there were”. So, your Honour says, “Take her out”. That is certainly one option, but some form of removal from that work. It is that that informs what your Honours saw in 733 about the taking out, the changing work or a rotation. Can I take your Honours to an earlier part of the trial judge’s reasons in that regard, to 683?

GORDON J: What page is that, please?

MR DINELLI: Of course - which your Honours will find at 225.

GORDON J: Thank you.

MR DINELLI: At 689, her Honour ‑ ‑ ‑

GORDON J: Paragraph 683 or 689?

MR DINELLI: I am sorry, 689, your Honour. There she had not been persuaded about the fixed‑term rotations and then she went on to deal with in 690 some of the elements of step 1 and then at 691, and this is important, your Honours:

I am satisfied on the balance of probabilities that a reasonable measure to meet the risks of vicarious trauma and burnout from staff exposure to SSOU work was one that encouraged management and HR to modify an employee’s work allocation or role, including ‘time out’ or rotation from the SSOU . . . Rotation or ‘time out’ from the SSOU ought be available to reduce exposure to trauma if required by a staff member, who, like the plaintiff, shows signs of impaired mental health from the work.

Now, when my learned friend, Mr Walker, went at 742 to that finding in relation to the rotation, it does not and cannot be seen to detract from the fact that there were other options and that was in issue. It was put in the Court of Appeal, yet – and this brings me to the second point – at 106 of the Court of Appeal’s judgment, which has attracted quite a bit of discussion today, at 327, it was said, and limited to, at line 6:

would have been for the plaintiff to be rotated out of the SSOU.

GORDON J: It is put against you, Mr Dinelli – I think we understand the point – by Mr Walker that the evidence which we were taken to at 733 leading to 742 was that the only thing that would have avoided – I think was the submission put by Mr Walker – her injury was rotation out.

MR DINELLI: The findings which I have taken your Honours to earlier also dealt with the fact that there were two other options mentioned there and Mr Walker rightly concedes other ways, but the way the Court of Appeal dealt with it was to simply focus only on the rotation out and that, in the circumstances of the earlier findings of the trial judge, was not appropriate.

We say that because to do so is to so narrow this question of causation to raise the very issue identified by your Honour Justice Gordon in discussion with my learned friend. Once the court did that it then fell into error, we say, by going on to say that the terms of the contract precluded the very thing which we say ought to have been done – a removal out. Now, it could have been done by way of rotation, but our case was not limited to that, and the fact that her Honour only dealt with that at 742 does not stand in the way of this application.

GORDON J: What about this concession that she could not have been compelled which is said to have been made by your side in the Court of Appeal?

MR DINELLI: For the reasons that I have taken your Honours to, we make no such concession. It is not the position that an employee cannot be forced, to use that language, and the answer to it lies in the case to which I have come – and I will not take your Honours to the case, but in McLean v Tedman it was said - the proposition was put there that the alternative system was not practicable because the employees would have refused to accept it or to have carried it out, notwithstanding that its object and effect was to protect them from injury.

But their Honours identified there, and we say rightly, as this Court ought on appeal from this judgment, that it ought take account of the
powers of an employer to prescribe, warn, command and enforce obedience to commands. That means that in those circumstances with the knowledge of what occurred on 29 August, if it be the case, the State was required, ought to have ensured that there was not the exposure to trauma that the applicant faced at that time.

GORDON J: I see your time. Do you have anything else you wish to say, Mr Dinelli?

MR DINELLI: No, your Honour, thank you.

GORDON J: Thank you. The Court will adjourn to consider the approach it will take.

AT 12.45 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.46 PM:

GORDON J: Mr Rush, there will be a grant of leave in this matter. I think that, with respect, the grounds of appeal need some sharp focus so that the two issues are clearly identified, and not dissimilar to the manner in which we discussed, I think, between both yourself and Mr Walker so that there is no doubt, when it comes up, exactly what it is the Court is dealing with.

MR RUSH: Yes, your Honour. Thank you, we will do that.

GORDON J: It is a day, is it not, less than a day?

MR RUSH: Absolutely, one day.

GORDON J: I would be grateful if you consult with the Deputy Registrar about that time.

MR RUSH: We will, may it please.

AT 12.47 PM THE MATTER WAS CONCLUDED