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Supreme Court of Queensland - Court of Appeal |
Last Updated: 30 August 2024
CITATION:
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Griffin v Brisbane City Council [2024] QCA 157
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PARTIES:
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TRICIA MARIE
GRIFFIN
(appellant) v BRISBANE CITY COUNCIL ABN 72 002 765 795 (respondent) |
FILE NO/S:
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Appeal No 63 of 2024
DC No 788 of 2020 |
DIVISION:
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Court of Appeal
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PROCEEDING:
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General Civil Appeal
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ORIGINATING COURT:
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District Court at Brisbane – [2023] QDC 229 (Richards DCJ) |
DELIVERED ON:
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Date of Orders: 9 August 2024
Date of Further Orders: 30 August 2024 Date of Publication of Reasons: 30 August 2024 |
DELIVERED AT:
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Brisbane
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HEARING DATE:
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9 August 2024
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JUDGES:
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ORDERS:
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Date of Orders: 9 August 2024
(a) Findings of fact and law relevant to the foreseeability of a risk of injury pursuant to Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld);
Date of Further Orders: 30
August 2024
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CATCHWORDS:
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APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES –
INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS
OF APPELLATE
COURT – WHERE FINDINGS CLEARLY WRONG – PARTICULAR CASES –
where during the course of employment of
the appellant by the respondent in a
call centre, the appellant suffered psychiatric injury as a result of dealing
with a particular
serial caller – where the appellant sought damages for
personal injuries and consequential loss arising from negligence and/or
breach
of contract by the respondent – where the respondent accepted it owed the
appellant a duty to take reasonable precautions
against psychiatric injury and
where quantum was agreed – where the respondent disputed breach of duty
and causation –
where the trial judge erred in in failing to decide the
issues of disputed liability within the applicable statutory legal framework
– where the trial judge erred in dismissing the claim on the basis that
the injury sustained was not reasonably foreseeable
by the respondent
Bersee v State of Victoria (2022) 70 VR 260; [2022] VSCA 231,
followed
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36, cited Director of Public Prosecutions (Cth) v Hart (No 2) [2005] 2 Qd R 246; [2005] QCA 51, cited Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182, applied Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44; [2005] HCA 15, cited Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12, followed Shaw v Thomas [2010] NSWCA 169, cited Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41, cited Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35, cited |
COUNSEL:
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S D Anderson for the appellant
B F Charrington KC, with M X Kehoe, for the respondent |
SOLICITORS:
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Shine Lawyers for the appellant
City Legal – Brisbane City Council for the respondent |
(a) The appeal is allowed.(b) The Orders made on 8 December 2023 are set aside.
(c) The matter is remitted to Richards DCJ for further reasons, with a further hearing of the parties, in relation to:
(i) Findings of fact and law relevant to the foreseeability of a risk of injury pursuant to Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld);(ii) Findings of fact and law relevant to the content of the duty of care owed by the respondent to the appellant pursuant to Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld);
(iii) Findings of fact and law relevant to the breach of duty pursuant to Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld);
(iv) Findings of fact and law relevant to causation pursuant to Section 305D of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
(d) The parties provide further submissions on the question of a costs order to be made in this Court by 23 August 2024.
(e) Reasons to be published at a later date.
(a) The appellant’s cost of the appeal be her costs in District Court proceeding BD 788/20.(b) The respondent bear its own costs of the appeal.
Relevant background
(a) described the management of verbally abusive calls received by the call centre workers as “a serious matter” and one on which the respondent had “zero tolerance”;(b) reminded staff that actual or perceived threats should be reported so that they could be investigated to determine whether they were of a minor or a major nature;
(c) advised staff that of “some key points to remember when managing any type of incident” including:
“ If the caller makes you feel uncomfortable, upset or distressed due to their language, an incident or near miss report must be lodged.
· EAP is available if the call adversely affects you ... .”
(a) In 2008 and 2009 the appellant had become distressed consequent upon receipt of a call from someone whose home had been damaged by storm. She applied for time off and a career break was approved for her, but she did not take it.(b) On 7 October 2015, the appellant’s colleague, Ms Overall, suffered extreme anxiety as a consequence of receiving a nuisance call from a Mr O'Connor. He was well-known to the call centre as a serial caller. Ms Overall reported her anxiety to team leaders and described the effect of the call from Mr O'Connor on her mental health and wellbeing in a “near miss” report.
(c) The appellant also had regular interactions with the serial caller Mr O’Connor. As time went by she became uncomfortable with those interactions. On 8 October 2016, she left work before the end of her shift. The following day she spoke to a supervisor, Ms McMillan. In that conversation, the appellant broke down, and was crying and shaking, pleading with Ms McMillan that she could not deal with Mr O’Connor anymore.
(d) In December 2016, consequent upon receiving a call from a Mr Trion, the appellant was observed by another staff member to be crying at her desk. The appellant filed a “near miss” report in respect of that incident. Mr Trion was known to the respondent as a regular abusive caller.
(a) The respondent accepted that “it owed to [the appellant] a duty of care as ordained by sections 305B, 305C and 305D of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”)” and submitted that the “duty was to take reasonable care to avoid the unnecessary risk of foreseeable injury”.(b) The respondent disputed liability on the basis that the appellant had proved neither breach of duty nor causation. Its case regarding the former was that it had in fact taken reasonable steps to ensure the safety of the plaintiff, including by developing formal policies and by providing training. Its case regarding the latter was that the appellant had not proved factual causation in the sense required by the law.
(c) Quantum was agreed between the parties at $251,000 clear of the refund to City WorkCover.
The applicable legal framework
“The proper starting point for examination of liability issues in a case such as the present is a consideration of the relevant provisions of ss 305B–305E of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
These provisions broadly correspond to ss 9–12 of the Civil Liability Act 2003 (Qld) and are provisions which are largely replicated in a number of statutes in pari materia throughout Australia. As the High Court observed in Adeels Palace Pty Ltd v Moubarak “[i]f attention is not directed first to [such provisions], there is a serious risk that the inquiries about duty, breach and causation will miscarry”.”
“Part 8 Civil Liability
Division 1 Interpretation
305 Definitions for pt 8
In this part—
duty means any duty giving rise to a claim for damages, including the following—
(a) a duty of care in tort;(b) a duty of care under contract that is concurrent and coextensive with a duty of care in tort;
(c) another duty under statute or otherwise that is concurrent with a duty of care mentioned in paragraph (a) or (b).
duty of care means a duty to take reasonable care or to exercise reasonable skill (or both duties).
305A ...
Division 2 General standard of care
305B General Principles
(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
(a) the probability that the injury would occur if care were not taken;(b) the likely seriousness of the injury;
(c) the burden of taking precautions to avoid the risk of injury.
305C Other Principles
In a proceeding relating to liability for a breach of duty—
(a) the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and(b) the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.
Division 3 Causation
305D General Principles
(1) A decision that a breach of duty caused particular injury comprises the following elements—
(a) the breach of duty was a necessary condition of the occurrence of the injury (factual causation);(b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability).
(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.
(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—
(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and(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.
(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.
305E Onus of proof
In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”
The proper framing of the questions for determination
“4. It was a term, express or otherwise, inter alia of the contract of employment between the Plaintiff and the Defendant and/or it was the duty of care owing to the Plaintiff by the Defendant that the Defendant:
(a) Provide workers, including the Plaintiff, with a safe place of work;(b) Provide and maintain a safe and proper system of work for workers, including the Plaintiff, in the performance of work duties;
(c) Provide the Plaintiff with proper and adequate instructions on training and safe work practices, policies and procedures;
(d) Provide adequate and proper supervision of the workplace and the Plaintiff to ensure that the Plaintiff was not exposed to foreseeable risk of injury in the performance of the Plaintiff's employment;
(e) Warn the Plaintiff of any foreseeable risks that the Plaintiff was or may have been exposed to in the course of the Plaintiff's employment;
(f) Take all reasonable steps to identify and assess any and all reasonably foreseeable risks of injury to which the Plaintiff was exposed in the performance the Plaintiffs duties, and to take all reasonable steps to eliminate such risk of injury and/or minimise such risk as reasonably possible; and
(g) To comply with its obligations under the WHSA and associated Regulations and Codes of Practice.”
(a) the person or persons who owe the duty;(b) the person or class of persons to whom they owe the duty; and
(c) the kind of risks of harm they must take reasonable care to minimise or avoid.[5]
“... the Defendant owed to the Plaintiff a duty of care and says that the content of that duty is defined by Chapter 5, Part 8, Division 2 of the Workers’ Compensation and Rehabilitation Act 2003.”
(a) the risk of injury to the appellant was foreseeable (that is, that it was a risk of which the respondent knew or ought reasonably to have known); and(b) the risk of injury to the appellant was not insignificant;
then the scope of the respondent’s duty would be to take the precautions against that risk which a reasonable person in the position of the person would have taken.
“The starting point is to reassert that the [respondent] in this appeal and at the trial admitted the existence of a duty, including a duty to take reasonable precautions against psychiatric injury.”
“The learned primary judge approached the question of breach by stating that the following passage in Wyong Shire Council v Shirt remained relevant:
... The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
That his Honour made no specific reference to s 305B is not critical, because the Wyong Shire Council v Shirt calculus is in fact reflected in s 305B(2). However, it is appropriate to note that the source of the applicable law is the statute, not the common law.”
(a) the statutory provisions, which require an approach to causation different to that which is the subject of the common law;[14](b) the evidence of the relevant witnesses, including Mr Hackett; and
(c) the respondent’s argument at trial that the appellant had not proved her injury would have been avoided had the alleged breaches of duty not occurred.
The fact-finding below miscarried.
“I accept that the stress caused by working at the call centre triggered the injury suffered by the plaintiff. The question is whether that injury was reasonably foreseeable. In Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 at 57 it was noted:
“It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers are at risk of psychiatric injury from stress at work ....
The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable.”
Whether the defendant could reasonably foresee the injury depends in part on the signs from the employee concerned. In this case the plaintiff had taken one afternoon off work in October 2016 and the day after that she was finding the calls from Wes O’Connor hard to handle. She had been treated for a major depressive disorder in 2009 but the defendant had responded to that by arranging counselling and treatment for her and following the medical advice in terms of arranging reduced hours for her. The reduced hours continued at her request which was on her application in an effort to maintain a work/life balance in 2009. She was not missing work regularly, she was not failing in her work duties. She was one of the best consultants that the defendant employed and regularly received positive work reviews. She took on extra shifts when asked. She handled the calls from O’Connor calmly so that anyone listening and giving feedback would not have realised her inner turmoil. The fact that Kellie Overall was distressed by a call did not necessarily reflect on Ms Griffin's ability to cope anymore than Mr Taylor's ability to brush off persistent and abusive calls. Aside from the meeting with Kerrie McMillan there was little by way of external signs to signpost the internal turmoil the plaintiff was feeling.
The defendant had a system of training and notifications which was generally sufficient. The plaintiff had indicated that she was finding dealing with Wes O’Connor stressful but she seemed otherwise to be coping well at work and operating at full capacity. She was not obviously floundering until she left work on 5 March 2017. In those circumstances I find that the injury sustained by the plaintiff was not reasonably foreseeable by the defendant.”
“Kozarov reinforces the point that questions of foreseeability, which are relevant to the existence and scope of a duty of care, breach of duty, or remoteness of damage, are fact and context specific. In some cases, psychiatric injury will be a reasonably foreseeable consequence of the performance of work and in others it will not be. In Koehler, the High Court referred to what an employer might reasonably assume about the ability to perform the work safely, and in Kozarov the Court concluded that the assumption was irrelevant in the face of the incontrovertible evidence as to risk.
Properly understood, Koehler and Kozarov are at opposite ends of a single spectrum and do not represent a divergence in principle. In Koehler, the plaintiff was performing work of a relatively routine nature that she had agreed to perform. In order to establish that psychiatric injury was a reasonably foreseeable consequence of performing the work it was necessary to take into account what the parties had agreed under the contract of employment. A generalised understanding that workplace stress can lead to injury was insufficient, in the absence of ‘evident signs’ by the particular employee. In Kozarov, the employer had acknowledged that vicarious trauma and therefore psychiatric injury were an obvious consequence of exposure to trauma, and a search for evident signs in the plaintiff was unnecessary to establish the relevant duty of care.
Kozarov makes plain that evident signs of distress or vulnerability on the part of a plaintiff are not a precondition that must be satisfied before psychiatric injury can be found to be reasonably foreseeable and are not a legal criterion for liability. Rather, they provide a means by which reasonable foreseeability may be established on the facts, and in some cases, the absence of them may mean that the employer would have no reason to suspect that psychiatric injury is on the cards for the particular employee or class of employees.”
What orders should now be made?
Costs orders
(a) The appellant’s cost of the appeal be her costs in District Court proceeding BD 788/20.(b) The respondent bear its own costs of the appeal.
[1] Director of Public Prosecutions (Cth) v Hart (No 2) [2005] 2 Qd R 246; [2005] QCA 51, 260 [28].
[2] This is not to deny the possibility that in a particular case, this Court might have power to do so.
[3] Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182 at [27]- [28] per Bond J (Gotterson and Morrison JJA agreeing).
[4] Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36; (2014) 254 CLR 185 at 169 per Gageler J (as his Honour then was).
[5] Compare Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 487 per Brennan J; Swick Nominees Pty Ltd v Leroi International Inc (No 2) [2015] WASCA 35; (2015) 48 WAR 376 at [115]- [116], [282] per Buss JA.
[6] (2005) 222 CLR 44; [2005] HCA 15.
[7] (2022) 273 CLR 115; [2022] HCA 12.
[8] (2022) 70 VR 260; [2022] VSCA 231.
[9] Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182 at [31] and footnote [6] per Bond J (Gotterson and Morrison JJA agreeing), citing Shaw v Thomas [2010] NSWCA 169 at [43] per Macfarlan JA (Beazley and Tobias JJA agreeing).
[10] Shaw v Thomas [2010] NSWCA 169 at [43] per Macfarlan JA (Beazley and Tobias JJA agreeing); Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2012] QCA 315; [2013] 1 Qd R 319 at 333 [26] per Fraser JA (White JA and Mullins J agreeing); Manca v Teys Australia Beenleigh Pty Ltd [2024] QCA 60 at [148] per Applegarth J (Bowskill CJ and Fraser AJA agreeing).
[11] Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317.
[12] Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182 at [35]- [36] per Bond J (Gotterson and Morrison JJA agreeing).
[13] Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182 at [50] per Bond J (Gotterson and Morrison JJA agreeing).
[14] See Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18]- [27], cited in a similar context by Jackson J in Stokes v House With No Steps [2016] QSC 79 at [142]; see also The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103 at [38]- [41].
[15] Griffin v Brisbane City Council [2023] QDC 229 at [71]- [73] per Richards DCJ.
[16] Bersee v State of Victoria [2022] VSCA 231; (2022) 70 VR 260 at [87]- [89] per Beach, Niall and Macaulay JJA.
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