IN THE SUPREME COURT

OF QUEENSLANDNo 186 of 1994

Brisbane

Before the Hon. Mr Justice Muir

[Zammit v The Qld Corrective Services Com.]

BETWEEN:

MARIO ZAMMITPlaintiff

AND:THE QUEENSLAND CORRECTIVESERVICES COMMISSION

Defendant

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 1 September 1998

CATCHWORDS: NEGLIGENCE - Master and Servant - breach of employees duty ofcare - employer’s duty to provide safe system of work - s.9(1)Workplace Health and Safety Act 1989 (Qld) - failure to counsel or toeducate employees in relation to stress - foreseeable risk ofpsychiatric injury to employee prison officer - employer’s knowledgeof prison officer's exposure to stress - damages.

Counsel: Mr S.C. Williams Q.C., with him Mr J.P. Kimmins for the plaintiffMr J.A. Griffin Q.C., with him Mr T. O’Sullivan for the defendant

Solicitors: Anderson Brady for the plaintiffBradley & Co for the defendant

Hearing dates: 15-22 June 1998

IN THE SUPREME COURT

OF QUEENSLANDNo 186 of 1994

Brisbane

Before the Hon. Mr Justice Muir

[Zammit v The Qld Corrective Services Com.]

BETWEEN:MARIO ZAMMIT

PlaintiffAND:

THE QUEENSLAND CORRECTIVESERVICES COMMISSION

Defendant

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 1 September 1998

Introduction

The plaintiff claims to have suffered a work related stress disorder and depression whilst

employed by the defendant as a custodial corrections officer at Sir David Longland Correctional

Centre (“the prison”). He alleges that his psychiatric condition was caused by the defendant's

breach of contract, negligence and/or breach of statutory duty. The matters particularly relied on

by the plaintiff on the trial of the action were -

(a) alleged failure by the defendant to establish and maintain a safe system and place

of work;

(b) alleged failure by the defendant to adequately prepare, instruct, counsel, warn

or educate the plaintiff in relation to the possible incidence of psychological

disorder flowing from stress;

(c) the alleged creation of a dangerous and stressful environment in which the

plaintiff was required to work under bad management practices.

The defendant denied that the plaintiff was suffering from the alleged psychiatric

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condition. It further alleges that -

a) if the plaintiff has a psychiatric condition as he alleges, it was not caused or

contributed to by any wrongful conduct of the defendant;

b) in relation to its alleged breach of statutory duty, it was not practicable for the

defendant to take any steps beyond those which it in fact took towards ensuring

the health and safety of the plaintiff, having regard to -

. the nature of the plaintiff's employment;

. the severity of potential injury or harm to health of safety involved and the

degree of risk in relation thereto;

. the state of knowledge of the risk of injury or harm to health or safety and

the means or lack thereof, of preventing, removing or mitigating that

injury, harm or risk;

. the availability and suitability or lack thereof, of ways to prevent, remove

or mitigate that injury or harm to health or safety or risk; and

. the prohibitive cost in the circumstances of taking further steps to prevent

remove or mitigate that injury or harm to health or safety of that risk.

The defendant also contends that much of the plaintiff's claim is statute barred.

The plaintiff

Born in Malta on 16 April 1948, the plaintiff left school at 13. He went to a catering

school in Malta for six months and took up a catering scholarship in Germany which lasted

between 18 and 20 months. Emigrating to Australia in 1972, he married in or about that year, and

has four children.

After arriving in Australia he had a variety of jobs. His first job after arrival was that of

storeman. He then worked at the Park Royal, Melbourne, as a steward, finishing his employment

3

as a night manager. He and his wife found the Melbourne climate not to their liking and they

moved to Sydney after about 18 months. His first job in Sydney was as an insurance salesman.

He did not stay in that occupation long and obtained a position as a steward at Parliament House.

He was successful in that occupation and became personal steward to the President of the House

and the Speaker. From that position he moved to the Australian Club where he took up the

position of chief steward. Tired of travelling in excess of two hours a day to and from work, he

resigned from the Australian Club after less than 18 months to take up a position at the Rooty

Hill RSL Club as poker machine attendant and chief steward. He subsequently held positions at

the Blacktown RSL and at the Pennant Hills Bowling Club as bar manager. In about 1983 he and

his wife purchased a milk run which they operated. He continued working at the bowling club

for about six months after purchasing the milk run and then purchased a second milk run which

was operated at the same time as the other.

The Zammits kept the milk runs for about 5 years. They were profitable and the plaintiff

and his wife were able to pay off their debts and acquire an unencumbered dwelling house and

a vacant block out land out of the profits.

They sold milk runs because of a foreshadowed deregulation of the milk industry and

moved from New South Wales to Queensland in about 1988. The plaintiff's four children, the

eldest of whom is now 25 and the youngest of whom is now 18 were then aged between about

8 and 15 years of age.

The plaintiff applied for an advertised position of custodial correction officer with the

Queensland Corrective Services and was successful in his application. He commenced training

on 16 January 1989 at the Sir David Longland Correctional Centre which, at that stage, had

recently been constructed and had not admitted any prisoners.

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The plaintiff's course of training as a custodial correction officer

Prior to commencing his duties, the plaintiff underwent a six week training course. His

description of the course was rather sparse. He said that there was video conferencing for three

weeks and discussion sessions with other prison officers for the balance of three weeks. There

was two hours of gym training which essentially involved wrestling and one day was spent on

a firing range. The trainees were given a copy of the Kennedy Report and some other unidentified

documents to read. Evidence of witnesses called by the defendant did not provide much more

insight into the content of the training course.

Mr Hierdsfield, a prison officer who did his training at the same time as the plaintiff said

-

“The basic training, we done some self defence, restraint holds, firearms training,legislation, we done some on unit management, the concepts of it, the roles of theofficers involved in the inmates, the rest of the staff, the programme staff'sinvolvement, we touched on dynamic and static security issues, escortprocedures.”

It does not seem that the training period involved any practical experience. Nor does it

appear to be the case that the plaintiff, upon commencing work, was placed with experienced

officers with a view to his being able to observe and learn from their experience.

The plaintiff was appointed a probationary prison officer at the commencement of his

training. He became a prison officer after expiration of the 12 month probationary period.

The plaintiff asserted that during the training period the plaintiff and other trainees were

told that the prison was to house medium to low security inmates and that although there was to

be a detention unit within the prison, its use was to be avoided. I find that it was the intention of

the defendant at all relevant times that some high security inmates be housed at the prison and

that this intention was communicated to trainees such as the plaintiff.

The physical layout of the prison

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The core of the prison is made up two virtually identical modules called B block and C

block. Each block has a central spine. Three cell units run off each side of the spine at right

angles to it. Each cell or prison unit has 14 cells. Associated with each prison unit and located

at the end of the unit on the spine is the officer's station which has walls largely comprised of

heavy reinforced glass. On one side of the officer's station (which is colloquially known as the

“fishbowl”) is an interview room and toilet. On the other is the dining room servicing the prison

unit. Beyond that and also in the spine between the officer's station and the interview room on

the one hand and the prison units on the other is located the “living area” and laundry. The prison

officer in the unit, if standing near the glass wall facing the prison unit and looking to the left,

sees into the interview room. Looking to the right he sees into the dining room and through to

the kitchen. If he looks through to the prison unit he sees through the living area down a central

corridor between two rows of seven cells. The cell doors opens outwards and each cell is located

directly opposite another across the central corridor. A cell door, when opened, extends virtually

halfway across the corridor. The result is that, when the doors of cells opposite each other are

opened, a unit manager looking from the officer's station is unable to see anything beyond the

two doors except, perhaps, through a small gap in the middle of the doors.

A walkway runs down the middle of the spine and the rooms which I have just described

have their exact counterpart in a unit directly opposite on the other side of the spine. The

adjoining officer stations are thus separated by the walkway.

The officers located in the officers' stations are known as “unit managers”.

The defendant’s organisational plan provided for three officers to be located in the spine.

They were in communication with the movement control area by telephone and, from late 1991,

by intercom also. A unit manager was located in each fishbowl. When entering a prison unit he

was required to be under the observation of another officer. That officer was either the unit

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manager located in the fishbowl directly opposite across the corridor or one of the three spine

officers.

If a unit manager wished to go into his unit and the unit manager opposite was otherwise

engaged he could wait, obtain assistance from a spine officer or contact the senior in the block

to make whatever arrangements the senior considered necessary. Unit managers not infrequently

stood at their respective doors into the spine corridor for the purposes of having brief discussions.

A function which unit managers were required to perform was unlocking in the morning

(or “lock down”) and the locking of the prisoners in their cells in the evening or on other

occasions when the situation warranted it (“lock up”). Those procedures could only be

undertaken manually by an officer with a key. The plaintiff said that they were initially

undertaken by unit managers by themselves, that is, without another officer being with them

physically during the unlocking or locking process. I accept that this happened from time to time.

The cell layout had the result that when the doors of cells opposite each other were open, the

officer situated in the fishbowl could not see behind the two doors. On account of that, an officer

unlocking cell doors would start at the back of the cell unit and work forward towards the

fishbowl, ensuring as he did so that he was never behind two opened cell doors.

Evidence of witnesses on operational and procedural matters

Three other former correctional services officers gave evidence on the plaintiff’s behalf.

They were: Mr Holz who had claimed against the defendant for inter alia, damages allegedly

suffered as a result of post traumatic stress disorder; Mr Kevin Watts who commenced his

training in January 1989 and who had a claim against the defendant for damages for breach of

duty outstanding in the Supreme Court and Mr P J O'Connor, a former manager of operations at

Brisbane Prison whose employment was terminated by the defendant in 1990.

Mr Holz gave evidence that often, at least two of the three spine officers were absent

7

from the block and that unit managers were isolated in their respective fishbowls.

Mr Watts gave evidence to the effect that prisoners would frequently come and bang on

the glass of the gold fishbowl making various demands and threats.

He also said that operational procedures required that a minimum of two officers enter

a unit with one officer observing from the gold fishbowl but his experience was that it was not

always practical for there to be three officers on hand when a unit needed to be entered by an

officer.

Mr O'Connor was a fierce and persistent critic of the defendant and of prison

administration in this State in recent years. He had over 20 years experience as a prison officer

in maximum security prisons. The criticisms he made, based on: his inspection of the Sir David

Longland prior to its opening; discussion at that time with senior prison officers including the

security manager for the Queensland Corrective Services Commission and on later visits to the

prison, include -

• The staffing levels were too low to afford appropriate security to prison officers, even on

the basis of a complement of two prison officers to each fishbowl (which Mr O'Connor,

at the time of his inspection, was informed was the planned staffing level).

• Duress alarms were standard issue at Brisbane Prison and were there regarded as

important in maintaining the security of officers and of relieving feelings of vulnerability.

• Allowing prisoners access to utensils such as knives, forks and cook's knives outside of

meal times was tantamount to issuing prisoners with weapons.

Mr O'Connor prepared and presented a written report to his superiors in respect of Sir

David Longland and also in respect of the Australia Day riot. The defendant was unable to

produce either report. In the latter report Mr O'Connor expressed the view that -

• Prisoners were being over-indulged.

8

• Prisoners were afforded excessive freedom of movement so as to create a high

security risk.

• Drugs and alcohol were being consumed by inmates.

• That prisoners were taking control of the prison.

• There were gang rapes of prisoners within the prison which were going

undetected and/or unpunished.

Mr O'Connor said in the course of his evidence -

“I was surprised one day I went into the centre [of the prison] and saw a veryexperienced officer, I think he had about 16, 17 years of service at BrisbanePrison and prior to approaching him ... I saw him being abused verbally and spatupon by prisoners ... After the prisoner moved off to do recreation I approachedthe officer and said, ‘What the hell is going on?’ He said, ‘This is the way it is,no staff to back you up, we have just got to tolerate what is happening.’”

Around the time of that incident Mr O'Connor informed his superiors that if steps were

not taken to “correct the problem and safeguard prisoners and officers” he would speak directly

to the Minister. He did make contact with the Minister and voiced his complaints. Shortly

afterwards, on 31 August 1990, the Deputy Director of Custodial Corrections, purporting to act

on the direction of the Director, issued a memorandum to general managers of major correctional

centres in the State that Mr O'Connor and his assistant Mr McDonald, was to be denied access

to correctional centres. The memorandum explained -

“Neither Mr O'Connor nor Mr McDonald have a formal role or function atpresent and have no legitimate reason to be at correctional centres.”

Mr O'Connor admitted that an enquiry into the Queensland Corrective Services

Commission in 1991 he represented “what was referred to as the old guard”. In broad terms the

“old guard” consisted of experienced prison officers who were critical of the philosophies and

goals of the Queensland Corrective Services Commission and the “reforms” it was seeking to

implement. As well as appearing before the enquiry to make representations Mr O'Connor

9

engaged in extensive criticisms of the defendant to politicians including Mr Cooper, then

Minister for Police and Corrective Services, Mr Milliner, then Minister for Justice and Corrective

Services and the Premier, Mr Goss. Because of Mr O'Connor's vehement (and sometimes

intemperate) opposition to those in authority within the defendant at relevant time, I have

approached his evidence with caution. Nevertheless his criticisms do receive support, not only

from other witnesses called on behalf of the plaintiff, but from the defendant's own internal

memoranda and reports. I accept his evidence concerning duress alarms, access to kitchen

utensils and verbal abuse of prison officers.

The defendant called four correctional officers to give evidence on its behalf: Shane

Heirdsfield, Gregory Prestwradge, Kelvin Olsen and Noel Taylor. Mr Heirdsfield was a serving

officer of the defendant who became a unit manager in December 1991.

Mr Prestwradge has been employed by the defendant since April 1989 and worked at

the prison between December 1991 and November 1996. The first position he held at the prison

was that of spine officer. He subsequently became a unit manager.

Mr Olsen is an operational auditor with the defendant. He was general manager at the

prison between January 1990 and September 1992.

Mr Taylor is the general manager of the prison. With the exception of a period, between

October 1990 and September 1991, when he was operations manager at the Wacol Correctional

Centre, he was either operations manager of the prison or acting in that capacity.

There is not a great deal of difference between the evidence of these officers on the one

hand and that of the plaintiff and the witnesses called on behalf of the plaintiff on the other in

respect of procedural matters. The difference is essentially one of emphasis. The latter were

concerned to highlight perceived inadequacies in the system or irregularities. The former, all

serving officers who had achieved promotion within the system, were content with the way in

10

which it functioned and tended not to experience or share concerns articulated by the plaintiff and

the witnesses called by him.

Mr Olsen took up his appointment as general manager of the prison in January 1990. He

commenced a practice of preparing and distributing to staff briefing notes in which he

summarized matters discussed at regular briefing sessions and matters supplementary to the

matters discussed. The unit management system in the prison and initial problems

encountered in its implementation

The first batch of prisoners to be housed at the prison were received from state farms on

30 January 1989. Staff training was completed on 30 March 1989. On 6 March 1989 the first

intake of prisoners from the Brisbane Correctional Centre arrived and intakes of prisoners

continued twice weekly until the prison reached operational capacity of 221 on 4 March 1989.

From the outset, the defendant sought to implement what was known as a “unit management”

system. The purpose of the system expressed in the defendant's rule No. 5.8 was “... to promote

constructive interaction and self-responsibility among other prisoners and staff.” In broad terms,

the prisoners were to be housed in small groups under the management of particular officers.

Those officers were be expected to interact with prisoners and were to be responsible for the

management and direction of their respective units. The managers were to have administrative

authority and supervisory responsibility for their respective units. Prisoners were to be instructed

in the nature of the unit management system and it was prescribed that -

“The prison environment is, so far as possible to reflect community standardsgiven the restraints which the loss of liberty and containment within the perimeterof prison allows;

. prisoners should be housed in an environment as least restrictive aspossible, but consistent with good order, management and security;

. programme opportunities will be utilized to relieve pressures within the prisonand assist in establishing order. ”

One objective of the system was said to be -

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“(c) to provide an internal security and prisoner management system basedon officer/prisoner interaction rather than on physical barriers andcontrols.”

The unit management system initially failed as a result of matters which included -

. inadequate staff training;

. the transfer of too many hard case prisoners too rapidly to the prison so that the

fledgling system was unable to absorb them and implement or maintain unit

management practices;

. the hard case prisoners intimidated and dominated many fellow prisoners and

staff members alike;

. a failure in communication between staff and management resulting in staff

having a perception of lack of management support;

. laxity in control over prisoners - with prisoners having a general ability to roam

about different sections of the prison.

A riot occurred in the prison on Australia Day 1990. After Mr Olsen took up his

appointment as general manager of the Prison shortly after the Australia Day riot, he suspended

the operation of the unit management system with a view to ensuring that staff regained

appropriate control over the prison and its inmates. A staff training programme was put in place,

regular staff meetings were initiated and the movement of prisoners around the prison was

restricted. Greater emphasis was given to prisoner control and security generally. Steps towards

the re-introduction of unit management were taken in June 1990. The evidence does not establish

when the re-introduction was fully effected.

In a report to the Director, Custodial Corrections dated 24 April 1990 Mr Olsen stated

inter alia-

“1. Operational Emphasis

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The state in which the prison found itself in the period leading up to theriot was the result of two prominent factors - operating routines andprisoner attitudes. The two matters had to be addressed as a matter ofurgency if control was to be regained and maintained.

1.1 Operating Routines

A feature of the pre-riot period was the poor administration ofprisoner movement. Very few records were maintained andprisoners virtually pleased themselves where, and when theymoved - without supervision, regardless of security rating.

Most of the officers had been recruited ‘off the street’ especiallyfor this prison for their interactive pre-disposition - the theorybeing that they would not be ‘tainted’ by old traditional beliefsabout the role of prison officers and thus would ensure the successof this new interactive prison. Subsequent training emphasisedsome aspects of unit management, but very little attention waspaid to the more basic but essential traditional skills such asobservation, recording and control.

This situation had to be corrected as a matter of priority if theprison was going to be controlled during the short-term, and afirm base for future development was going to be established.Therefore, we've concentrated on developing routines and staffskills that are appropriate for the operation of a high securityprison such as this....1.2 Prisoner Attitudes

The interactive method of management broke down completelywhen high security prisoners were transferred here in largenumbers from the Brisbane Correctional Centre.

Management of the day failed to adapt it's rutines (sic) to meet thethreat to it's (sic) operations posed by the refusal of theseaggressive manipulative transferees to co-operate in the unit styleof management.

The prisoners from Brisbane quickly infiltrated throughout theprison and exercised their negative influence on the generalprisoner population to the extent that the unit management systembroke down.

Most of the troublesome prisoners held a rating of high andmedium security, so it was a relatively simple matter to extricatethem from throughout the prison and concentrate them in units inthe high security block.

13

During the short-term while we are consolidating our operations,the high security units will be managed along wing lines. As theatmosphere allows, as many of these wings as possible will returnto unit management operation.

The success of initiatives discussed in this section can be judged by the fact thatsince the riot, not one assault against an officer has been recorded, and very fewamong prisoners. Prior to the riot assaults were frequent occurrences....2. Staff Training

Staff Training is an area that has been seriously neglected in the past. Apart frominitial indoctrination of unit managers prior to the prison's opening, there has beenvery little training....Financial constraints at this point prohibit staff being taken off-line for training,so we lock the prison down at 7.30pm on 4 nights each week for in-servicetraining. The lock-down time allows for management staff briefings and anaggregate of 7 hours training weekly for 45 officers.

Initial training is aligned to develop teamwork and personal confidence. Theprogramme for the next 3 months will see training in aboriginal and islanderculture, unit management, emergency responses to contingency plans, first-aid,fire drills and team building....3. Management/staff

Communications

A serious lack of communication between management and staff has beena point of comment from various areas, including official visitors.

We're addressing this by holding General Manager's briefing sessions 4times weekly - twice with unit managers to get a spread of staff, and once

14

each with trade instructors and security staff....7.2 Re-introduction of Unit Management

This prison is designed around unit management which is the style ofprisoner management required by the Commission. We must therefore get back to that mode of operation as soon as possible.

...7.2.2 Reintroduction Timing

It would be folly to rush into this prison's future in an ad hoc manner toexpediently meet the demands of those who believe we should ‘ease up’immediately at all costs. We must approach our future in a planned andorderly manner that will ensure we maintain the control that we'veestablished.

There are constraints that dictate when we will be able to introduce unitmanagement. These are:

. The introduction of the new roster, and

. Re-indoctrination of staff”

Mr Olsen stated in a report dated 24 April 1990 to the Director, Custodial Corrections -

“7.2.2.2 Reindoctrination of Staff

The intimidatory tactics of the prisoners and the lack of managerial support forunit management in the period prior to the riot caused staff generally to ‘runaway’ from unit management.

With only a few exceptions, officers here are still afraid, and very reluctant to gointo units singly as would be required in unit management.

Any reintroduction of unit management virtually means we must start from

scratch and reindoctrinate staff to be effective in the process - it is that serious.”

In briefing note No. 7 dated 30 May 1990 Mr Olsen recorded “factions seem to be

continuing among different staff sections. Some individuals seem to be striving to inflame

various sections to cause disharmony.”

The briefing note went on to state that it remained the aim of the defendant to reintroduce

unit management. On 27 June 1990, briefing note No. 9 recorded that Mr Olsen had commenced

a programme to reintroduce unit management and that a policy document would be distributed

15

to enable staff to understand their respective roles.

Briefing note No 11 dated 25 July 1990 recorded-

“We are presently going through quite a lot of turmoil and the indications are thatit'll continue for a while yet. It's important that we recognise the turmoil for whatit is - a natural component of organisational change.”

Paragraph 7 of the note dealt with accountability of the unit managers and proposed

changes in the general manager's rules in that regard, designed to give more decision making

authority to unit managers.

I accept the general accuracy of the foregoing observations and conclusions of Mr Olsen.

The inmates of the prison

The evidence about the mix of inmates was fairly vague. The plaintiff's evidence appears

to be largely based on information obtained “on the grapevine” but it was unchallenged, and

generally I accept it. The first inmates were 32 convicted paedophiles admitted in about February

1989. Initially, it was the policy of the prison management not to inform prison officers of the

sentences being served by inmates or to provide any information from which prison officers

could obtain some guidance as to the tendency to violence or otherwise of inmates. Prisoners

were classified into categories of high security, medium security or low security. So far as the

prison officers were aware, the object of that classification was to determine the number of

outside telephone calls permitted to inmates. After Mr Olsen's appointment as general manager

of the prison, and after an approach by union representatives, that practice was changed. From

mid 1990 onwards relevant material from each prisoner's file was given to unit managers for

filing in the unit.

Incidents and circumstances which allegedly contributed to the plaintiff's psychiatric

condition

The plaintiff itemised the following incidents in which he was involved, or which had a

16

direct or indirect impact on him. The plaintiff's evidence in relation to all of the following matters

(with the exception of his evidence on what I describe as the “gate incident”, which will be dealt

with separately) was largely unchallenged and I accept it.

In early 1989 he was requested to supervise three prisoners on a work detail outside the

perimeter fence of the prison. He was given no radio or duress alarm and had no weapon. He felt

concerned and insecure.

When acting as a unit manager of unit 5C he saw a prisoner about to be transferred out

of the prison with a cassette radio with another prisoner's name on it. He raised that matter with

the prisoner. Another officer with him took the radio and the prisoner called the plaintiff by a

variety of vulgar names. The plaintiff breached the prisoner. He is unable to say what the result

of the breach was.

On an occasion on which a prisoner was injured, the plaintiff arranged for a sister, a nurse

and a senior prison officer to check the injured prisoner. That was at about the time of “lock

downs”. The prisoners, according to the plaintiff, were calling out to the plaintiff to stay but he

says he was “ordered off the premises (to) go home ... off duty”. Next day when the plaintiff

came to unlock the cells there was general disturbance resulting from a misunderstanding by the

inmates as to the plaintiff's conduct. The plaintiff asked for some assistance from his senior but

was told not to worry as there were officers outside. The plaintiff commenced unlocking. He

unlocked the cell door of a prisoner by the name of Ryan, who kicked the door open in a violent

manner, narrowly missing striking the plaintiff. Ryan was an armed robber who was not

considered to be prone to violence, but had “a reputation of being a manipulator”. The plaintiff

said that during this process he saw nobody in the fishbowl. When he completed lock up he rang

the senior officer and abused him.

The prisoners had general access during the day to kitchens which contained stainless

17

steel metal equipment, supplies of cutlery and 14 inch cook's knives.

The procedure in relation to cutlery, which was utilised from the outset, was for it to be

distributed in the morning and collected in the evening, when it was placed in a cupboard in the

fishbowl. The cutlery was checked and, if an item was unaccounted for, a search would be

undertaken whilst the prisoners were confined to their cells. At some later stage the cutlery was

placed in the fishbowl in a block of wood with appropriate holes cut out of it to receive items of

cutlery. But, until the cutlery was checked at the end of the day, there was generally no means

of knowing whether or not a prisoner had cutlery in his possession.

On occasions when the plaintiff was in the vicinity of razor wire placed around B block

prisoners would make comments such as “we can use you as a mattress”.

A prison officer by the name of King was stabbed with a butter knife from a kitchen in

the course of a morning shift. The plaintiff had a shift that afternoon.

An officer, Stephen Pyle, was hit across the face and knocked unconscious with a heavy

object, possibly a sock full of bars of soap. The officer suffered a fractured skull. The plaintiff

saw

him lying on the ground immediately after the incident.

The plaintiff witnessed an assault on a prisoner officer, Allan. He put the assailant in a

head lock and took him down to movement control. He was then a spine officer. Allan was the

only unit manager in the unit in which he was operating. Other prisoners could have involved

themselves in the incident had they desired to do so. Some prisoners came up whilst the incident

was in progress but the prisoner in the head lock told them to go away, which they did.

The plaintiff detected a prisoner, Blessington, in the officers' mess where he was not

supposed to be. On being challenged, Blessington told the plaintiff to mind his own business and

abused him. The plaintiff did not breach him, he says, because he did not have another officer

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with him.

The plaintiff observed a prisoner, Brennan, moving to an inappropriate place. The

plaintiff informed a security officer. The inmate reacted by telling the other officer “I spit in your

meals”. It was subsequently discovered that the inmate, who was involved in preparation of food

for prison officers, was infected with hepatitis B. The plaintiff's superior officer was informed

about the matter and no action was taken.

There was an occasion on which the plaintiff was involved in mustering prisoners to go

to the oval. Due to a misunderstanding, a prisoner formed an erroneous view of what the plaintiff

was doing and called to him “I will get you for this, I will get you for this”. The plaintiff breached

the prisoner and, at his request, telephoned the chief prisoner officer who said “I am not

interested. I don't talk to prisoners”.

A prisoner informed the plaintiff in October 1991 that if an inmate named Vosmaer was

returned to the unit, he and others who tried to assist him would “go out on a stretcher”. The

plaintiff reported that threat, which he heard on other occasions to his superiors. Vosmaer had

taken a dislike to the plaintiff. The plaintiff said he had had a number of “conflicts” with

Vosmaer. Those conflicts appeared to consist of oral abuse. On one occasion Vosmaer threw a

coffee table against one of the fishbowl windows, shattering the glass. Vosmaer told the plaintiff

on one occasion that if he ever got hold of the plaintiff, he would “do him in”. Vosmaer was

subsequently killed by other inmates.

When distributing mail a prisoner, King, erroneously formed the impression that the

plaintiff was holding a letter back from him. He kicked the shattered window of the fishbowl

causing some glass to land on the plaintiff. The plaintiff called King into the interview room

where he stood preventing the door from locking behind him. The plaintiff asked him to shut the

door and said he would breach him for disobeying a direct order if he did not do so. King said

19

“well, do so” and left. The plaintiff breached King and was subsequently told by him that no

punishment had resulted from the incident. The plaintiff did not say what steps he had taken to

bring about procedures which would lead to punishment.

On an occasion a prisoner, Barlow, pretended to spit at the plaintiff. Barlow was regarded

as a dangerous prisoner and was suffering from hepatitis B, C and genital warts.

A prisoner walked up behind the plaintiff when he was seated and lifted him up in his

chair. As he do so he said, “now what am I going to do with you”.

A prisoner came up behind him and ran his long thumbnails down his back.

A prisoner with whom the plaintiff had been working for some time, upon being refused

milk from the kitchen, struck the plaintiff a blow to the side of the face through a gate which had

wire mesh with gaps between the meshing some 95mm square. The plaintiff breached the

prisoner concerned. The matter went to a Magistrates Court hearing and the charge was

dismissed.

It is necessary to deal with the last incident in some detail because the plaintiff identifies

it as a watershed event which brought on his alleged psychiatric disorder.

The incident at the kitchen gate on 11 August 1992

On 11 August 1992 the plaintiff was in the kitchen acting as kitchen security. He said he

heard somebody at the gate and went to see who it was. The gate was in two parts. They were

capable of being locked and were normally expected to be locked. In addition to a normal locking

mechanism, enhanced by bolts at the top and bottom, there was also a chain which passed

through a square aperture on the left hand section, above a horizontal steel structural member

about half way up the gate. The other section of the gate had a similar structural member. The

chain was secured by a lock.

The plaintiff's further evidence about the incident was, in general terms, as follows. When

20

he reached the gate he saw a prisoner by the name of Sidell. Sidell asked to be let in to the

kitchen and the plaintiff refused. Sidell repeated his demand. At the time the plaintiff was

“hanging onto the gate”. Sidell said “I'll teach you, dago” and the plaintiff felt a blow to the right

hand side of his face. The blow was not a severe one and he did not see it being struck. He

walked back into the kitchen in order to report the incident to security. There were prisoners in

the kitchen at the time. They had heard something of what had happened at the gate and followed

the plaintiff to the area where the phone was located. The plaintiff had tried to telephone the

nearest prison officer but that person was standing next to a noisy compressor and the plaintiff

could not make himself heard. He said that he felt vulnerable. Security officers arrived after a few

seconds and the plaintiff then reported to the prison surgery. I accept the above account as

broadly accurate.

Jillian Ward, a nursing sister working in the health centre of the hospital that day, gave

evidence that:

• she was standing at a desk with two other people when the plaintiff arrived in the health

centre;

• he had a lighthearted exchange with the other two persons in which Miss Ward did not

participate;

• she took him into the treatment room where she examined him;

• she failed to document the plaintiff's visit in the injuries log as procedure required;

• some days later, whilst the incident remained in Miss Ward's memory, she was informed

by the nursing supervisor that she should have documented it;

• she then made a note which was inserted in the log book. It states-

“11.8.92. At approximately 1200 hours CCO M Zammit presented to surgery. Heclaimed to have been hit on the right side of his face by an inmate through thewire in the laundry. Right face. No obvious injury, no redness, swelling or grazeapparent. CCO Zammit was not visibly upset re the incident. Panadol two given.

21

CCO stated right face felt tingly.”

I accept Miss Ward's evidence, except that I doubt that she retains a true recollection of

the plaintiff acting in a lighthearted fashion. Nor do I consider that the true nature of the

plaintiff's emotional state could be ascertained, necessarily, by a casual observation of Miss

Ward. In her note made near the time of the incident she describes the plaintiff as being “not

visibly upset”. It was not suggested that she had any motive to incorrectly record the incident or

even that she had done so.

That day, the plaintiff visited his general practitioner, Dr Andrew. He informed Dr

Andrew that “he had been hit with a closed fist with the palm side contacting his face”. Dr

Andrew observed no sign of injury. The plaintiff was cross-examined at great length about this

incident with a view, at least in part, to attempting to show that the incident had not occurred. In

his final address, Mr Griffin QC contented himself with submitting that the plaintiff's evidence

about the incident was unreliable (as was the whole of his evidence) and that the incident,

however it may have happened, was of a trivial nature. Moreover, it was submitted that the

defendant could not be blamed for it. He pointed out that the prisoner at all times during the

incident was on the other side of the locked gate and that any blow which could have been

delivered through an aperture in the gate could hardly be severe or particularly threatening in

nature.

The day after this incident was a rostered day off for the plaintiff. For reasons which he

is unable to explain, he rose very early in the morning, put on his work uniform and drove to the

Gold Coast. There he spent some time at the casino before returning to Brisbane. On his way

back to Brisbane an incident occurred which is recorded in the medical evidence. He did not

return to work at the prison.

Conclusions in relation to the plaintiff's allegations and evidence in relation to procedures,

22

security and discipline

Duress alarms

I find that the plaintiff was led to believe during his training course that he and other

correctional officers would be provided with a duress alarm and that such alarms were important

safety devices. The alarms looked like pagers and were designed to be attached to prison officers'

belts. Their absence, and when supplied, their failure to function adequately, contributed to the

plaintiff's feeling of insecurity. There is evidence apart from the plaintiff's, that officers were

concerned about not having duress alarms and that management thought them to be important

operational devices. A report of 9 May 1989 from Mr Colebourne, general manager of the prison

to the Director, Custodial Corrections observed inter alia -

“Industrial relations have generally been good. The main issues are in the areasof staff shortages and lack of provision of personal duress alarms. The supply ofthe alarms rests with the works department.”

In a report to the Director-General of the Queensland Corrective Services Commission

dated 1 June 1989, Mr Lobban, a consultant, and Mr Waring, Manager (Major Projects) said -

“The unit management system requires staff to be frequently in direct contactwith prisoners. This does put them under some pressure as on occasions there aresituations that develop poorly. On those occasions staff should have the assurancethat they have back up and support. The alarms were not available at the time ofcommissioning. The availability of this safety device is not optional - it isfundamental to the concept.

... It is felt that without these alarms the staff, particularly in maximum security,are unnecessarily at risk in the direct supervision model....Union action has currently focused on personal duress alarm systems and units.”(emphasis supplied)

Procedures for the entering into of prison units by officers

The evidence revealed a degree of confusion in the minds of officers as to what rules

applied in relation to the entering of prison units by unit managers. I found that rather surprising.

I thought it unlikely that matters such as this would not be the subject of published rules or

23

regulations and raised the matter in the course of Mr Olsen's evidence. There was then a belated

attempt to tender a volume of General Manager's rules without establishing the relationship those

rules bore to the rules in existence at relevant times. Moreover, it had not been suggested to the

plaintiff or witnesses called on his behalf that operational matters such as this were the subject

of written rules published to prison officers. When the defendant's counsel's attention was

directed to these matters he withdrew the tender. No attempt was made to prove the rules in

existence at relevant times. The thrust of the evidence by the plaintiff and witnesses called on his

behalf was that operational procedures required that an officer entering a unit be accompanied

by a minimum of one other officer and that he be observed by another officer in the fishbowl. Mr

Heirdsfield shared that view and also said that if an officer thought that there may be a

“confrontation or anything like that” he would call for additional officers to support him. Mr

Prestwradge gave similar evidence. He said that there was never an occasion on which he went

into a unit by himself and that he had never observed another officer going into a unit by himself.

Mr Olsen's understanding of the procedural requirement was that a unit manager could go into

a unit by himself as long as he was observed by another officer in the fish bowl. That was also

Mr Taylor's understanding.

I find that although the plaintiff had been led to believe during his training period that

there would never be any occasion for unit officers to enter prison units without being

accompanied by another officer and being under the observation of a third officer in a fishbowl,

that procedure was never formally put in place. Through staff shortages or implementation of

practices accepted by management, unit managers, from time to time, were obliged to enter

prison units by themselves. The necessity to do that contributed to the plaintiff's feelings of

insecurity and fear. The lack of certainty in procedural requirements in this regard probably

contributed also to the plaintiff's insecurity and fear.

24

Incidence of attacks on warders and a lack of discipline in that regard

The plaintiff gave evidence that he had counted some 52 assaults on warders by inmates

in the first 9 months of the prison's operation. The recollection of Mr Watts was that around 40

officers were assaulted in the first year of the prison's operation. There was no challenge to the

evidence of either witness in this regard, no doubt because the defendant's records reveal a high

incidence of attacks by inmates on prison officers. Some of those attacks resulted in potentially

life threatening injuries, for example, the attack on officer King on 12 November 1991 and that

on officer Pyle on 10 June 1992. The General Manager's monthly report to the Director,

Custodial Corrections dated 6 November 1989 reported seven assaults on officers by prisoners

in the month of August 1989 under the heading “Major incidents reported to police”. It noted that

there had been one such incident in September and none in October.

The high incidence of such assaults, including the matters listed earlier under the heading

“incidents and circumstances which allegedly contributed to the plaintiff's psychiatric condition,”

all played a role in causing the plaintiff’s psychiatric condition.

The plaintiff's evidence about the way in which offending inmates were dealt with is

somewhat ambiguous. Initially, he said that some such assaults were treated as “just minor

breaches” punished by the loss of privileges “for a day ... for a week or no visits or whatever”.

Immediately after giving that evidence he said that assaults on prison officers were treated as

major breaches most of the time. The defendant elected to lead little evidence on the types of

penalty which might be imposed for offensive language and assaults. I asked Mr Olsen what

sanctions might be imposed for a breach in respect of name calling. His response was that if it

was a minor breach, the officer could order the withholding of a particular privilege for 24 hours.

If it was a major breach, the prisoner “could be placed on separate treatment for up to seven days

in the detention unit. Where a prisoner earned a breach result of seven days on three or more

25

occasions that then had an impact on his remission and discharge dates.” In some cases, as in the

case of the assault on Mr Zammit, a decision would be taken by prison management as to

whether a breach should be dealt with internally, or was serious enough to merit being dealt with

by a magistrate. However, the evidence in that regard remained sketchy.

Lack of discipline - name calling and threats

The plaintiff asserted that he was constantly abused by prisoners and called offensive

names. He said it was generally not possible to do anything about this because officers were on

their own “commonly, when the abuse occurred”. I assume that the difficulty in taking action in

these circumstances arose from the fact that the officer was without a witness.

I accept the plaintiff's evidence in this regard. I find that prisoners routinely subjected

prison officers to verbal abuse, including threats of physical harm to officers and near relatives.

Such conduct was more prevalent prior to mid 1990 than afterwards. Some officers because of

their attitudes and skills, were more successful in dealing with such conduct than others. I see no

evidence that the management of the prison ever made a concerted effort to ensure that such

conduct on the part of inmates was confined to isolated incidents. Management's policy in that

regard, insofar as there was one, was to leave the matter to the discretion of individual officers.

Recorded incidence of stress in prison officers and management responses to that stress

The defendant was aware, or ought reasonably to have been aware, prior to the

commencement of the plaintiff's employment that the prison environment was one likely to give

rise to a high degree of stress in those working within it, such as prison officers. The clinical

psychologist who gave evidence on behalf of the plaintiff was cross-examined on the basis that

the job of a correctional services officer was inherently stressful and that a person applying for

such a job ought be aware of that fact.

The defendant also was aware, or ought reasonably to have been aware, that it was

26

possible to significantly reduce occasions for stress and the impact of stress on prison officers

by appropriate management practices and the provision of suitable counselling services.

Documentation produced by officers of the defendant shows an awareness by senior officers of

the defendant of the existence of stress-related conditions being experienced by officers from an

early stage in the operation of the prison. The defendant's records also show that throughout

1990, 1991 and 1992 many officers reported stress-related complaints and took sick leave on the

basis of those complaints. As the following narrative demonstrates, Mr Olsen in April 1990

recognised the existence of “high stress levels” in unit managers and the need to take initiatives

to manage the stress. The defendant’s response was to engage the services of a firm of clinical

psychologists, Interlock, and to alert the staff to the availability of the counselling services

provided by Interlock. The Interlock service, however, did not operate as well as it might have

done. For whatever reason, staff were hazy about the use which could be made of Interlock and

the circumstances in which its services should be availed of. Also, it was left to members of staff

to recognise the fact that they were experiencing stress-related difficulties and to recognise the

need for counselling or treatment. The service provided by the defendant did not assist staff to

identify symptoms of stress. Some useful information concerning stress management was

imparted to prison officers in the course of evening briefing sessions but no attempt was made

to show that, as a result of these sessions, the plaintiff was the recipient of information which

satisfied the defendant's duty of care.

In a memorandum to the General Manager dated 21 March 1989 a correctional officer,

Mr Allen asserted -

“We believe that we do not have sufficient staff to effectively create such anenvironment. Unit managers are not being given the time to interact on a positiveand personal level with the inmates. The stress and pressure that we are under isalready taking its toll on officers.

Sick leave due to stress will only create overtime which will only cause more

27

stress on those officers who are already giving this job everything, and in somecases more than what our pay reflects. We feel that more staff need to beinformed immediately.”

In his report of 9 May 1989 to the Director, Custodial Corrections, the then general

manager of the prison noted -

“After only two weeks of operation a number of staff presented with concernswhich were stress related. It was established in all instances the group of officers concerned had only worked in operational shifts, servicing the needs of a verysmall group of prisoners. In an effort to determine the source of the stress, thegeneral manager met with the officers and their wives. Discussions were also heldwith senior staff of the personnel branch in central office. The outcome of thisexercise was that an organisation known as ‘Interlock’ were engaged to attend thecentre. To date three sessions have been conducted and whilst every effort hasbeen made to encourage staff to attend information sessions, the response hasbeen poor.”

On 4 April 1990 Mr Olsen noted in briefing note 4 -

“I am very concerned at a phenomenon that is emerging now that the prison issettling down - the number of officers with serious stress problems. While it isevident at the moment in B block, I understand the same thing happened whenhigh security prisoners were transferred to C block, and it continued until theyreturned to B block.The problem is a serious one, and seems to hinge around the need for unitmanagers to have some ‘time-out’ from the pressures of unit management.

We can't ignore the matter and must do something about it. For that reason I havecalled a general staff meeting for Thursday night 5th April.”

In his report to the Director, Custodial Corrections, of 24 April 1990 Mr Olsen referred

to “the high stress levels being experienced by unit managers” and commented on the need to

take initiatives to manage stress.

Briefing note No. 9 of 27 June 1990 discusses the services being provided by Interlock.

In the briefing note Mr Olsen referred to officers contacting Interlock for what he said were

inappropriate purposes and stated -

“... I urge you to contact Interlock only where counselling for personal problemsis considered necessary.”

A report on the valuation of employee assistance programmes provided by Interlock in

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July 1990 commented on “some significant lack of awareness of Interlock and its services”. It

also noted as major issues that emerged in discussions with staff -

“(i) the belief that Interlock is slow to respond in an emergency...(iv) officer doubts about confidentiality(v) some variation in the perception of the quality of counselling provided(vi) a general lack of knowledge of Interlock ...”

The General Manager's report to the Director-General dated 31 August 1992 noted that

amongst the courses for which there was “heavy demand” at the prison was “stress management”.

On 12 August 1992 the General Manager, Human Resources wrote a memorandum to the

General Manager of Prison in relation to Interlock referral reports. In the memorandum he noted

inter alia -

“4. It has been noticed that in your centre's report a disproportionately highnumber of client concerns involved work performance issues, work conditions,work itself and workplace/organisational change issues. These presentingproblems would seem to indicate an underlying anxiety which staff may not havecommunicated to management at the centre.”Mr Wrigley, a clinical psychologist, did some work in relation to stress management at

the prison in 1993. In that regard he was provided with briefing notes by Mr Colin Anderson, an

advisor, Employee Relations, employed by the defendant. Included in that material was a report

of Maureen Pauli, consulting psychologist, dated 12 December 1993. Her report had been

compiled as a result of an eight day project during which she interviewed 57 staff members at

the prison. The report spoke of -

• staff members being afraid and anxious about personal safety;

• a high incidence of stress related problems such as the taking of sick leave, increasedalcohol intake, poor sleep patterns, increased nicotine and prescription drug intake;

• lack of understanding of the unit management system and even doubt about whether theunit management system was in place;

• concerns about inadequate staffing levels and the implication of that for personal safetyand;

29

• poor communication between management and staff.

In his oral evidence Mr Wrigley expressed the following views -

• The defendant had undertaken insufficient investigation and assessment of stress relatedproblems within the prison.

• The fishbowl arrangement was one which had potential for causing stress in prisonofficers and induced a feeling of helplessness.

• The prison environment is one in which there is likely to be significantly greater stressesthan in many other work environments. He said there was literature which supported thatview.

• Prior to the events in question, a generally held view of clinical psychologists was thateven the staff in well run prisons were subjected to greater than average levels ofoccupational stress.

• Programmes could be introduced within a prison system to bring about significantreductions in stress levels.

• In a stressful environment such as a prison, it is not an appropriate stress managementtechnique to allow symptoms of stress to emerge before providing counselling.

• Factors operating to cause stress in unit managers were lack of support, or perceptionsof lack of support and not having personal duress alarms, particularly in circumstanceswhere officers were led to believe they would be issued.

Mr Wrigley and Ms Pauli concluded that the best approach to overcoming or alleviating

the stress problem at the prison was to: firstly, identify the source of the stress; secondly,

intervene to deal with the identified stresses; thirdly, evaluate. Mr Wrigley said that his approach

would have been the same in 1989, 1990 or 1991. He expressed the opinion that the defendant's

offering of stress management by way of seminars and lectures was of limited value, as any such

intervention without finding the cause of stress could only be undertaken on an ad hoc basis. In

November 1993 Mr Wrigley provided the defendant with a document headed “Analysis of the

Main Sources of Correctional Officers' Stress at Sir David Longland Correctional Centre (SDLC)

and suggestions for intervention”. The document listed sources of stress under the heading

“Officers' physical work environment: the ‘Fishbowl’” as including -

30

“ (1.1) Isolated and kept in a confined space.

(1.2) Without relief except for meal breaks.

(1.3) Responsibility for two units frequently.

(1.4) At the beck and call of inmates, constant requests.

(1.5) Passive reception of unrestrained verbal and physical abuse, verbal threats.

(1.6) Psychological ‘mind games’ ...

(1.7) Frequent banging by inmates on flexible glass walls of fish-bowl.

(1.8) Communication with inmates only through hole in office wall.”

Under the heading “Officers' relations with inmates” he noted -

“(5.1) Siege mentality:(a) ever-present threat of harm to life or limb,

requiring continuous arousal and vigilance(b) continuous exposure to hostility and aggression

(5.2) Traumas:(a) at least two major traumatic events occur each year

such as violence towards officers causing severeinjury, suicide, attempted suicide.”

The defendant did not call any expert evidence in relation to the matters the subject of

expert opinion by Mr Wrigley whom I found to be a credible witness. Generally speaking, I

accept the validity of his opinions and conclusions referred to above.

This evidence, and the internal memoranda of the defendant to which reference has been

made under the last topic heading, provide some corroboration of the plaintiff's own evidence

of his emotional response to his working conditions and to significant work day events.

Staff shortages

The evidence suggests that under staffing was a chronic problem which existed

throughout 1989, 1990 and 1991. The General Manager's monthly report of 9 May 1989 noted

that actual staff strength was 161 whereas the establishment level was 174.

The same report noted that staff shortages was an industrial relations issue.

31

The report to the Director-General of 1 June 1989 by Mr Waring, Manager (Major

Projects) and a consultant, Mr Lobban, noted that the prison had never been at its full

establishment with the result that unit staff could not be regularly taken off line for training,

which was “an absolute necessity for a new centre”. The General Manager's monthly report to

the Director, Custodial Corrections of 29 September 1989 noted that the prison was nine under

establishment.

In the General Manager's report to the Director, Custodial Corrections of 6 November

1989 it was noted that staffing levels were at full strength for the first time since the centre

opened.

The General Manager' report of 6 February 1990 noted that a number of staff were on

extended sick leave and that other staff had resigned. It was remarked -

“The decreased numbers had severely limited staff training in January.”

The monthly report dated 5 March 1990 made reference to a number of staff being on

extended sick leave. The monthly report dated 6 April 1990 referred to increases in overtime

costs and stated -

“The main contributing factors to the overtime bill in the supervisory area are:-

* present critical level of staffing vacancy numbers.* large of number officers on extended sick leave (7).”

The General Manager's monthly report dated 10 May 1990 noted that there were 26

vacancies within the prison. It was noted under the heading “Overtime” -

“Overtime costs continue to rise. Approximately 75% of overtime is attributableto staff shortages and workers' compensation. Unless urgent action is taken to fillvacancies overtime will continue to be a major problem.”

Prison officers were concerned with safe staffing levels and raised that matter with Mr

Olsen on 16 May 1990. The General Manager's monthly report dated 2 July 1990 noted 26 staff

vacancies at the prison. General problems with staffing continued throughout 1991 and in the

32

first half of 1992. Mr Olsen noted in his monthly report of 6 March 1992 that -

“Overtime continued to be a problem during the month, due to a number of long-term absences from our staffing levels.”

The fact that staff shortages existed is not of direct relevance to the plaintiff's case. It

does, however, offer some marginal support to the plaintiff's contentions about lack of “back-up”

from spine officers. It also serves to explain, in part, why the plaintiff was accepting overtime

work despite his feelings of apprehension. It would also have played a part in maintaining an

environment in which officers, including the plaintiff, felt themselves to be lacking in managerial

support.

Medical evidence

The plaintiff was seen by Rosalie Troup, psychiatrist, between August 1992 and October

1997. Dr Troup first saw the plaintiff after the mesh gate incident in August 1992. She gave a

great many reports to the plaintiff's general practitioner, Dr Andrew, and to his solicitors.

In a report of 5 December 1995 Dr Troup expressed the following opinions:

“The symptoms of which he has at the moment are those of a chronic posttraumatic stress disorder. ...He also has dysthymia which is defined (sic) a depressed mood for most of theday for more days than not as indicated by either subjective account orobservation for at least two years in the presence whilst depressed of two or moreof the following

1. A poor appetite or overeating.He had overeating.2. Insomnia or hyperinsomnia.He has insomnia.3. Loss of energy or fatigue.He has both of these.4. A low self esteem.5. Poor concentration and difficulty making decision.6. Feelings of hopelessness.

... This man is chronically debilitated by his symptoms of chronic post traumaticstress disorder and dysthymia related to his time as a custodial officer in theprison. His premorbid personality, according to his wife, was that of a man whotook pride in decisions and supporting his family. His self esteem and self

33

concept have been damaged by the fact that he feels no long (sic) able to cope inthe workforce. His responses when he has tried to obtain employment have beeninappropriate as he is likely to get very abusive to any superior which makes himimpossible to employ.

There was a build up of stress for a considerable period of time prior to the

incident in August 1992, however, that was the incident that decompensated him.

He has no insight into the fact he was stressed to the dissociative episode. The

previous incidents sensitised him to decompensate.”

In her report of 6 May 1997, Dr Troup recorded -

“My view is that he has continued to suffer from post traumatic stress disorder invarious stages of severity since leaving the Queensland Corrective ServicesCommission. ... I do not feel however, that once litigation has settled that he willbe able to immediately return to a work situation. Because of the nature of thesituation and the fact that he has repeatedly tried to apply for jobs and hassucceeded in obtaining some and failed in keeping them, his confidence level isvery low. His personality has changed to the point where he is chronically angryand frustrated and quite frankly, no employer would be prepared to, in myopinion, employ him given his attitude at the moment. It is difficult to put a timeframe on this but my feeling is that it will be in excess of two years before Marioever achieves full employment and it will depend on continuing psychiatrictreatment whether Mario feels that he has been fairly dealt with as to whether hisanger is able to settle to a level where he would be able to return to the workforce.I am unable to say whether he actually will be able to return to the workforce everagain but I can say, with confidence, that it is going to take well in excess of twoyears for this to occur if ever.”

In her oral evidence Dr Troup expressed the opinions that -

• It was very likely that the plaintiff would not be able to return to full time work;

• the plaintiff was close to having a chronic and intractable condition;

• medication was likely to be required for a period of between two to five years and that

anti-depressants will be needed “pretty-well indefinitely”.

She said that she saw him regularly on about a monthly basis and that he often came to

see her in a distressed state between regular visits.

Dr Troup was cross-examined with a view to obtaining a concession that the gate incident

34

did not fit within the criteria for post-traumatic stress disorder contained in the DSMIV. The

DSMIV is the diagnostic and statistical manual of the American Psychiatric Association. Dr

Nothling, the psychiatrist who was called by the defendant, expressed the view that it is the most

widely recognised international classification of mental disorders and has general acceptance by

psychiatrists in Australia.

The DSMIV states, inter alia -

“ diagnostic criteria for 309.81 post traumatic stress disorder

A. The person has been exposed to a traumatic event in which both of thefollowing were present:

(1) The person experienced, witnessed, or was confronted with anevent or events that involved actual threatened death or seriousinjury, or a threat to the physical integrity of self or others.

(2) The person's response involved intense fear, helplessness, orhorror.”

Dr Troup concluded that although the plaintiff did not suffer any serious injury, it was

sufficient that “he was absolutely terrified about the incident”.

In relation to criteria C(1)-

“The person commonly makes deliberate efforts to avoid thoughts, feelings, orconversations about the traumatic event,” she said that -

“Immediately after ... the incident he had no recollection of what happened at alluntil a day or so later.”

She went on to note that he had travelled to the Gold Coast, not remembering going there

or what he had done there. She also said that he tried to avoid driving past the prison which

reminded him of the incident and did not like having conversations with or seeing other prison

officers. When asked about criteria C(2) (the avoidance of activities, situations, or people who

arouse recollections of the traumatic event), she referred to the foregoing and noted her

understanding that he retreated into the family home and rarely left it for a considerable period

35

of time.

She said he was emotionally disturbed and agitated when describing the gate incident and

that he becomes very angry when discussing it. It was put to her that a diagnosis of dysthymic

disorder or of post traumatic stress disorder (“PTSD”) was difficult if not impossible to make,

having regard to alleged drug abuse by the plaintiff. She rejected the contention, noting that the

plaintiff was a social drinker before the incident and his alcohol consumption increased after it

and not before, and that the increased level of alcohol consumption was a secondary reaction

rather than a primary one.

Dr Stephen Andrew is the plaintiff's GP. He has treated the plaintiff since at least 13

May 1992. The following notations on his patients' cards (or the doctor’s interpretation of those

notations) are of relevance.

13 May 1992. Discussion with him regarding “stress of work... Seems to be continually

under pressure”.

11 August 1992. He records that the plaintiff informed him that he was assaulted at work

with a single blow to the side of the face that day. The blow was with a closed fist. No discernible

physical injury was observed.

12 August 1992. The plaintiff reported a strange visual disturbance whilst driving on the

Pacific Highway. He reported that his vision went orange and there was a sensation of a curtain

coming down across his vision. His head was tilted to the right hand side. When he alighted from

the car at a service station he fell over because he couldn't control his legs.

14 August 1992. The plaintiff said he had had no further recurrence of the problem

reported on 12 August. By that time the CT scan had been done. It produced a negative result.

“He had time to think about it and reconsider what had happened. He told me thathe had several mates stabbed, beaten, assaulted at work. He had never actuallybeen assaulted up until then, but had had several what he called close calls, inother words he described a prison door being slammed against him and threats to

36

his safety at work, but that was the first time had actually had to deal with anactual injury. He was quite worried about it. He was concerned that he wasn'tgoing to be able to face going back to work. He couldn't even at that stage go intothe prison to deliver the Workers' Comp forms that I had given him and he wassmoking to 60 to 70 cigarettes a day at the time, very tense, very irritable, and Icommented that although a degree of this may be post-concussive he also haslikely a post-traumatic stress and may need to consider a change of occupation.”

18 August 1992.

“I commented that he remained irritable, he was physically unable to return towork to drop in the certificate still. He said he was going to take them intoWorkers' Compensation instead because of that and I'd diagnosed officially apost-traumatic stress at that stage and referred him to Dr Rosalie Troup.”

On cross-examination, Dr Andrew -

• conceded that the plaintiff gave a very clear account of the gate incident, and

• said that prior to the gate incident the plaintiff did not complain of symptoms of the

nature of those mentioned by him after the incident.

Lesley Stephenson, an experienced occupational therapist, assessed the plaintiff's

working capacity until October 1997. She expressed the following opinion in a report dated 28

October 1997 -

“He would not be able to resume working as a custodial officer or in anypositions associated with prisons. He is not suited to working in positions thatinvolve dealing with stress or pressure and dealing with the public. Mr Zammithas attempted to operate a fruit shop as a family business but found it difficult towork with the public and also found he could not assume responsibility in thebusiness. His stress escalated and the business was eventually unsuccessful. MrZammit has also attempted work to support his wife. While able to copephysically with this work, situations arose when he became aggressive. He isstressed by the ongoing litigation and it will be difficult for him to progressfurther in his return to employment while his litigation is in progress. He does notcope well with having several major life stressors.

He may be able to undertake routine structured, part time employment e.g.

cleaning contract work, e.g. 15-20 hours in the future with the support of his

wife.”

She concluded that it was necessary that the plaintiff be placed in a non-pressured

37

environment without a lot of high work demands that may cause anxiety and that the work

environment should be fairly routine and structured.

In a report dated 9 July 1993 Miss Stephenson said -

“In my opinion Mr Zammit would not be able to return to his occupation of

custodial officer due to his post traumatic stress condition. Due to the severity of

his condition, his employability in the short and medium term, i.e., in the next six

months to two years was considered poor. There is some improvement in his

condition, i.e. lessening of his depression and anxiety, an improvement of his

ability to concentrate and attend to tasks, I would consider that he has reasonable

prospects of being able to return to employment in the future.”

Miss Stephenson's second report observes that -

. the plaintiff helped his wife for a few months in a cleaning business in 1995/1996;

. the plaintiff had part time cleaning work in a butcher's shop at Woolworths,

Brassall for four months in 1995/1996 until reacting strongly to congealed blood

which, he said, reminded him of his mopping up blood in a cell after the Australia

Day riots;

. the plaintiff has applied, unsuccessfully, for positions with clubs in his local area.

Dr Nothling, consultant physician in psychiatry, was called by the defendant. He gave

two reports, one of 29 January 1997 and the other of 20 July 1997. In his first report Dr Nothling

expressed doubt as to whether the gate incident, as reported by the plaintiff, satisfied criteria A

for a post-traumatic stress disorder. He went on -

“However, accepting his history that he was continually worried about hissecurity at the prison and was angry at the administration for not responding inthe way he felt was appropriate, and accepting that the last episode of 11 August1992 when he was punched in the side of the head by a prisoner was veryfrightening to him as he was not properly supported at the time, I am inclined tothe view that the summation of these events probably does satisfy criteria A for

38

a post-traumatic stress disorder.”

Dr Nothling then noted that the plaintiff satisfied criteria B, C and D. He also concluded

that the incident during which former prison inmates came to the fruit shop in a Rolls Royce

reactivated the post-traumatic stress disorder and that “he has continued to suffer from post-

traumatic stress disorder since then”.

The report also stated -

“Assuming that he ceases drinking alcohol, it is my opinion that the anxiety ofongoing litigation is a factor for him and that, once litigation matters are resolved,I would expect there would be a steady improvement in terms of hissymptomology. However he will, in my opinion, require psychiatric treatment forat least the next two years after litigation matters are resolved.”

Between Dr Nothling's first report and his second report he had access to the following

further information-

1. Brassall Clinic medical records;2. Report of Dr Troup dated 6 May 1997;3. Report of Dr Myers dated 29 May 1997;4. Copy of Dr Troup's medical records on the plaintiff;

In his second report Dr Nothling dealt at some length with what he said was the plaintiff's

substance abuse of alcohol and benzodiazepines. He concluded that the plaintiff was having

major difficulties with substance abuse. He said-

“In my opinion, substance abuse with alcohol can produce psychiatric symptomswhich can mimic any of the major psychiatric disorders. It is not simply a matterof alcohol exacerbating existing psychiatric disorders, but of alcohol primarilyproducing psychiatric symptoms of its own ...

I would agree with Dr Troup that he certainly could not return to workimmediately upon cessation of litigation. I would agree with Dr Troup, in viewof his substance abuse problems with alcohol and benzodiazepines as well as thepost-traumatic stress disorder, but it would probably take about two years beforehe could return to full-time work, assuming he followed medical advice andabstained from the use of the offending substances.”

He noted that the plaintiff was not a reliable historian in relation to his alcohol intake and

concluded that the opinion expressed in his 29 January 1997 report remained unchanged.

39

In the course of Dr Nothling's oral evidence he was referred to the following matters-

• a tape recording of the plaintiff's evidence in the Magistrates Court on the hearing of thecharge against his alleged assailant (Dr Nothling observed that the plaintiff did not sounddistressed but rather quite relaxed and did not display any signs of emotionaldisturbance);

• the fact that the gate was locked and that was known to the plaintiff;

• the fact that when observed by a nurse shortly after the gate incident and some time laterby the doctor, the plaintiff bore no discernible marks of a blow to the face;

• the nurse who treated the plaintiff did not note any sign of distress on his part, to thecontrary, she reported him as engaging in banter with other persons present when he camein to make his report;

• in his statement to the Workers' Compensation Board he said that prior to the incident hesaid everything was “going all right”, but that since the incident he found that he gotmoody and sometimes aggressive;

• in November 1991 about nine months before the alleged assault he suggested Sir David Longland Correctional Centre as his first preference for a correctional institution inwhich to be employed and that in December 1991 when transferred to Brisbane Jail henoted in a report to the defendant that, inter alia, he volunteered for the medicalsegregated unit when it was difficult for management to find staff to work there and alsoworked “back to back shifts” and overtime;

• when working in the fruit shop business the plaintiff visited Borallan Correctional Facilityto deliver fruit on a number of occasions where his conduct was observed to be normalwithout suggestion of agitation or stress. Similar observations were made of him byformer colleagues when visiting the fruit shop.

These matters are all factually accurate, except that if the plaintiff did engage in “banter”

as suggested, I do not regard that conduct as revealing that the plaintiff was then of an

unconcerned or relaxed frame of mind.

Dr Nothling concluded that each of these matters was inconsistent with a diagnosis of

post-traumatic stress disorder. He said that a diagnosis of post-traumatic stress disorder could not

be supported by a series of minor events having a cumulative effect. A concern he expressed

about the alleged assault causing post-traumatic stress disorder was that, assuming such a

seemingly innocuous incident could be the final incident in a series of matters having cumulative

40

effect, he would have expected to have seen symptoms of abnormal behaviour prior to the

assault. He said that for the plaintiff “to be sensitised he would have to be experiencing criteria

A and I would expect that he would be showing some symptoms of PTSD”. As a result of these

further matters, Dr Nothling concluded that the plaintiff did not have post-traumatic stress

disorder.

Dr Myers, consultant physician, in a report dated 29 May 1997 stated-

“After he stopped his job he began drinking very heavily but now drinks twobottles of beer a day or sometimes a sherry. He says that his sherry usage wasabout two litres per week. Certainly in 1995 and 1996 he had abnormal liverfunction tests. At that time he was also taking a remarkable array of drugs whichcould have attributed to his hepatic insufficiencies ...

In the past he says that he was a happy go luck but that since working in theprisons department he has been subject to a great deal of stress, anxiety anddepression which has been diagnosed by those who believe in the condition as‘post traumatic stress disorder’. ...

1. Although his liver is very slightly enlarged his liver function tests have nowreturned to normal. This suggests that his previous hepatic insufficiency was dueprobably due to his excessive alcohol usage at that time although his drug therapyat the time may have been contributory.

2. His alcohol intake, he says, is now more modest and this is reflected in returnof his liver function tests to normal. 300 mls of sherry per day is still an excessivealcohol intake and he would be well advised to modify this in the future.

3. ...

4. At present then his health problems are obesity, smoking and drinking toomuch, high blood pressure, elevated serum cholesterol levels and possiblyhabituation to benzodiazepines. Most of these problems would be corrected bylifestyle adjustments. To date his efforts to stop smoking have been fruitless butwere he able to adjust his lifestyle accordingly he could probably expect a normallongevity.”

Dr Troup referred the plaintiff to the Barratt Psychiatry Centre on 27 March 1995 “for

increasing suicidal ideation and taking excessive medication”. He was discharged the next day.

The matters which Dr Nothling relies on to support the change from his earlier reluctant

acceptance of Dr Troup's diagnosis of post-traumatic stress disorder cause me considerable

41

concern. Those matters suggest that considerable caution needs to be exercised in assessing the

plaintiff's true state of mental health. They also suggest to me the likelihood that Dr Troup is

mistaken as to the true extent of the plaintiff's psychiatric condition. In the end result, however,

I am persuaded that I should accept Dr Troup’s diagnosis of post traumatic stress disorder which

was also, initially, that of Dr Nothling. In reaching this conclusion I place considerable weight

on Dr Troup's evidence as the plaintiff's treating psychiatrist and on her and Dr Andrew's

observations of the plaintiff over a considerable period of time. The plaintiff's conduct when

reporting the gate incident, when visiting Borallan correctional facility to deliver fruit, when

talking to correctional officers in the fruit shop concerning visits of jail inmates and in the

Magistrates Court can be explained, at least in part, by a desire on the part of the plaintiff to put

on a bold front. His belief that prior to the gate incident things were “going all right”, his working

overtime and his expression of a preference for working at the prison over other correctional

centres may be explained, in part, by a lack of insight by the plaintiff into his condition and other

matters such as the need to maintain himself in employment coupled with the desire to better

himself.

I conclude that any excessive consumption of alcoholic beverages by the plaintiff arose

after 11 August 1992 and in consequence of the plaintiff's disturbed mental condition. I am in

little doubt that, in the course of his employment, the plaintiff was under stress of a fairly

constant nature. I also find that during the course of his employment there were many occasions

on which the plaintiff experienced episodes of pronounced stress and that stress built up in the

plaintiff over time. I find that the blow suffered in the gate incident was a “decompensating”

event which marked the onset of post traumatic stress disorder. The blow was relatively minor.

It left no mark on the plaintiff but it was quite unexpected. It shocked the plaintiff and left him

feeling exposed and insecure.

42

The defendant's duty of care

The defendant's duty, as the plaintiff's employer, was -

“... that of a reasonably prudent employer and it is a duty to take reasonable careto avoid exposing the employees to unnecessary risk of injury the degree of careand foresight required from an employer must naturally vary with thecircumstances of the case.”: Hamilton v Nuroof (W.A.) Pty Ltd (1956) 96 CLR 18at 25, per Dixon CJ and Kitto J.

That passage was referred to with approval in the joint judgment of Mason, Wilson and

Dawson JJ in Bankstown Foundry v Braistina (1985-1986) 160 CLR 301. In that joint judgment

it was observed that it had long been recognised that what is a reasonable standard of care for an

employee's safety is “not a low one”. The employer's obligation is to “establish, maintain and

enforce such a system, that is, a safe system of work”: McLean v Tedman (1985) 155 CLR 306

at 313.

The employer must take into account the possibility that an employee to whom a duty of

care is owed might fail to take proper care for his or her own safety: McLean v Tedman (supra)

at 312-3 and Nagle v Rottnest Island Authority (1992-93) 177 CLR 423 at 431.

The defendant's counsel conceded that the defendant's duty of care as an employer

extended to psychiatric injury. However, it was argued that because the plaintiff's alleged injury

was purely psychiatric -

“... issues of foreseeability and causation become much more significant.Furthermore, damages can only be awarded, in the case of psychiatric injury if thepsychiatric injury involved a ‘lasting disorder or the mind:’ (Mount Isa Mines vPusey at 394, per Windeyer J).”If by “lasting disorder of the mind” what is meant is a condition recognisable as a

psychiatric illness or disturbance as opposed to “an immediate emotional response to a

distressing experience”, I have no difficulty with the submission. See, for example, Page v Smith

[1996] 1 AC 155 at 189 per Lord Lloyd of Berwick. In order to recover for damages resulting

from a psychiatric illness caused by a plaintiff's negligence a plaintiff does not need to establish

43

a prior or related physical injury. Subject to the possible exception expressed below, the

principles to be applied in the case of purely psychiatric injury are no different from those

applying to physical injuries generally: Mount Isa Mines Limited v Pusey (supra) and Page v

Smith (supra).

In view of the findings of fact referred to below, I do not find it necessary to consider

whether the defendant would be liable only if the plaintiff's psychiatric condition could be

considered a “normal” outcome of the defendant's acts and/or omissions: see Jaensch v Coffey

(1984) 155 CLR 549 at 568 per Brennan J, cf. per Gibbs CJ at 556, per Murphy J at 568 and per

Deane J at 610 and Wodrow v Commonwealth of Australia (1993) 45 FCR 52.

Breach by the defendant of its duty of care

Having regard to the evidence, it is plain that there was a foreseeable risk of psychiatric

injury to the plaintiff if appropriate measures were not taken to minimise his exposure to stress.

A reasonable man in the position of the defendant would have foreseen that his conduct involved

a risk of injury to the plaintiff or to a class of persons including the plaintiff which was not “far

fetched or fanciful”: cf. Nagle v Rottnest Island Authority (1992-93) 177 CLR 423 at 431 and

Wyong Shire Council v Shirt (supra) at 48. That being the case, it is necessary to determine what

a reasonable man would have done by way of response to the risk. As was said by Mason J, with

whose reasons Aickin J agreed, in Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 at 47-

48 -

“That the perception of the reasonable man's response calls for a consideration ofthe magnitude of the risk and the degree of the probability of its occurrence, alongwith the expense, difficulty and inconvenience of taking alleviating action andany other conflicting responsibilities which the defendant may have. It is onlywhen these matters are balanced out that the tribunal of fact can confidently assertwhat is the standard of response to be ascribed to the reasonable man placed inthe defendant's position.”

A factor to be taken into account in undertaking such a balancing exercise is the

44

defendant's duty to provide a safe system of work: Miletic v Capital Territory Health

Commission (1995) 69 ALJR 675 at 677.

The risk of psychiatric and physical injury to the plaintiff at all times was substantial.

The defendant knew, or ought reasonably to have known, that the prison would be a stressful

environment for prison officers, particularly in the months after it commenced operation.

Evidence to which I have already pointed shows that Mr Olsen was able to identify the early

months of a new prison's operation as a particularly difficult period in its operational history. The

fact that the defendant had, before the prison commenced operations, decided that it would house

high security inmates, coupled with the high incidence of assault on prison officers, suggested

the existence of serious physical and psychiatric risk to prison officers. Those factors, together

with related stress illnesses suffered by prison officers within three months of the

commencement of operation of the prison, demonstrated to the defendant that psychiatric harm

to prison officers may well occur with a reasonable degree of frequency. It is, of course, not

necessary that the defendant should foresee the precise kind of damage which occurred. In March

v E & M H Stramare Pty Ltd (1991) 171 CLR 506, McHugh J said at 535 that damage -

“... will be a consequence of the risk if it is the kind of damage which should havebeen reasonably foreseen. However, the precise damage need not have beenforeseen. It is sufficient if damage of the kind which occurred could have beenforeseen in a general way.” See also Mount Isa Mines Limited v Pusey, supra at390, 402 and 414.

To take steps to minimise the risk of injury to prison officers through stress would have

involved expense, difficulty and inconvenience. But I am of the view that a reasonable man

would have taken action in response to such a risk which was neglected by the defendant. Two

obvious matters come to mind. The first is measures to remove or, at least, diminish the fear and

apprehension engendered in prison officers arising from the lack of “back up”, the prison officers

perception of backup and support generally and from the environment in which they operated.

45

This could have been accomplished by ensuring the availability of sufficient trained staff to

enable prison officers to be both accompanied and under observation when entering prison units;

providing personal duress alarms which worked; ensuring that potentially dangerous metal

implements were properly accounted for at all times; and by taking simple measures to minimise

unit managers' feelings of isolation, such as the provision of routine relief or assistance from time

to time during shifts. Such action would need to have been coupled with the provision to prison

officers of clear guidelines concerning such matters as -

• the way in which an officer was to go about entering a prison unit;

• breaching of prisoners;

• response and back up;

• provision of working personal alarms.

The second such course of action would have been the giving of proper training to prison

officers so as to make them more confident in their role. In particular, such training should have

alerted prison officers to the possibility of stress, its various manifestations and the need to obtain

timely counselling.

No evidence was adduced by the defendant with a view to demonstrating that the taking

of measures such as those suggested above were so expensive, difficult or inconvenient to

implement as to render that implementation unreasonable in light of the risk of injury to prison

officers. The evidence was to the contrary. The defendant was feeling its way towards adoption

of measures designed to alleviate a recognised problem.

Was the plaintiff's injury caused by the defendant's breach of duty?

I am satisfied that the defendant’s breach of duty which I have identified “was so

connected with the plaintiff’s loss or injury that, as a matter of ordinary commonsense and

experience, it should be regarded as a cause of it”: March v E & MH Stramare Pty Ltd (1991)

46

171 CLR 506 at 522 per Deane J, with whom Gaudron agreed. The defendant advanced no

alternative explanation for the plaintiff's psychiatric condition.

The plaintiff's liability under the Workplace Health and Safety Act

The plaintiff claimed also for breach of an alleged duty by the defendant under s.9(1) of

the Workplace Health and Safety Act 1989. That subsection provides -

“An employer who fails to ensure the health and safety at work of all hisemployees, save where it is not practicable for him to do so, commits an offenceagainst this Act.”

Breach of that provision gives rise to a cause of action for damages by a person injured as a result

of the breach: Rogers v Brambles Australia Limited [1998] 1 Qd R 212.

The onus of establishing impracticability rests on the employer: Kingshott v Goodyear

Tyre and Rubber Co Aust Ltd (No. 2) (1987) 8 NSWLR 707 and Rogers V Brambles Australia

Limited (supra).

“Ensure” in s.9(1) means “make certain” or “make sure”: St Vincent’s Hospital

Toowoomba Ltd v Hardy (C.A. 7477 of 6 May 1988, unreported).

“Practicable” is defined in s.61 of the Workplace Health and Safety Act 1989 as follows

-

“‘Practicable’, where the context permits, means practicable having regard to -

(a) the nature of the employment or, as the case may be, the particular aspectof the employment concerned;

(b) the severity of any potential injury or harm to health or safety that may beinvolved,andthedegreeofriskthatexis

47

tsinrelationthereto;

(c) the state of knowledge about the injury or harm to health or safety thatmay be involved, about the risk of that injury or harm to health or safetyoccurring and about any ways of preventing, removing or mitigating thatinjury, harm or risk;

(d) the availability and suitability of ways to prevent, remove or mitigate thatinjury or harm to health or safety or risk; and

(e) whether the cost of preventing, removing or mitigating that injury or harmto health or safety or that risk is prohibitive in the circumstances.”

Generally, for the reasons advanced earlier in relation to the plaintiff’s negligence claim,

I conclude that the defendant was in breach of its obligations under s.9(1). It was “practicable”

for the defendant to take some or all of the measures which I have outlined above in order to

mitigate risk to prison officers. The risk was substantial and the costs of mitigating the risk were

not prohibitive.

Damages

The plaintiff gave evidence that -

• Prior to the accident he engaged in social activities with his family. He said he wouldwatch football games and football training in which his children were involved, gofishing and picnicking but has ceased doing those things.

• He has had a personality change. From having a good relationship with his wife and sonshis relationship is now poor. He is aggressive with his children and prone to anger.

• Since the accident he has had odd experiences in which he was cruel and bloodthirstywith animals.

• The plaintiff took an intentional overdose of medication and, as a result, was admittedto the Ipswich Hospital. No date was put on that incident.

• He broods about his work at the prison and events which transpired there such as assaults,murders and escapes.

• He is suspicious about people in and about the house to the extent that on one occasion

48

he manhandled a person who walked across his yard.

I approach the evidence of the plaintiff with a considerable degree of caution. I found him

to be a far from compelling witness. I concluded that he would be rather unlikely to give evidence

or to make a concession if he thought that to do so would harm his interests. His wife was a

fiercely partisan witness who displayed strong resentment of any express or implied challenge

to evidence given on the plaintiff's behalf. For that reason I find it difficult to accept her evidence,

unless corroborated or consistent with a course of events which I regard as probable. The

plaintiff's evidence, however, is corroborated to some degree by the medical evidence.

He was admitted to the Barrett Psychiatric Centre on 27 March 1995; he subjected

himself to a great deal of medication over a lengthy period of time; and there were objectively

noticeable physical indications of a lack of well-being on his part. I accept that the plaintiff has

had something of a personality change since 11 August 1992 which caused him to become rather

more introverted, less interested in normal social activity and somewhat preoccupied with his

physical and mental condition. I accept that his mental condition has caused him difficulties in

finding and keeping employment. I do not accept that those changes and difficulties were as

marked as the plaintiff's evidence would suggest.

In her reports, Dr Troup, whilst not being certain that the plaintiff would be able to return

to full time work, was of the view that the continuing litigation was a significant factor in the

plaintiff's stress disorder. Ms Stephenson, as may be seen from the above extracts from her

reports, regarded the continuing litigation as a matter which significantly exacerbated the

plaintiff's condition. Dr Nothling in his reports accepted that the plaintiff would not be able to

return to work immediately upon cessation of litigation. He thought it would probably take about

two years before he could return to full time work “assuming he followed medical advice and

abstained from the use of offending substances”. He considered that the existence of this

49

litigation had a marked influence on the plaintiff's condition.

It is difficult to predict with any degree of certainty the extent to which, and the time over

which the plaintiff's condition will improve at the conclusion of this litigation but in this regard

I prefer the evidence of Dr Nothling to that of Dr Troup. Dr Troup, as the plaintiff's treating

psychiatrist, understandably, has accepted the plaintiff's assertions in an uncritical way. Dr

Nothling took a more objective approach and I found his evidence in this regard persuasive. He

expressed the opinion that most persons suffering from post traumatic stress disorder tend to get

better. And, as is noted earlier, he concluded that the plaintiff should be able to return to full time

employment once the litigation has been concluded. I accept the validity of those opinions. I note

that Dr Troup expressed the opinion in a February 1993 report that -

“The condition will improve with time and therapy. I consider the disability willresolve in a period of twelve to eighteen months.”

Calculation of damages

I assess the plaintiff's damages as follows -

General damages $20,000

Special damages (past) are made up of the following components:

71 monthly visits to Dr Troup on the basis of a round trip of28 km at .50 cents per kilometre - $994.00

Interest at 6 per cent on $994.00 for 303 weeks - $347.00

Medical services as per “Notice of past benefits” (Ex.10) - $7,790.00

Allowance for past medication and interest. $500.00Since mid 1994 the plaintiff has had a health card.

Workcover - $2,478.00

Future special damages comprised as follows -

Medication on the basis of dosages and costs referred to in Ex.22allowed at a weekly rate of $31.68 for 2 years at 5% - $3,149.00

50

Psychiatric treatment monthly for 2 years at a rate of $110 per month - $2,640.00

Travel for psychiatric treatment at the rate of $3.30 per month (24 x $3.30) $79.20

Allowance for past services under the Griffiths v Kerkemeyer principleat the rate of one hour per week for 303 weeks at $9.50 per hour. $2,878.50

Interest is allowed at the rate of 2% for 303 weeks. $174.93

No allowance is made for future services under the Griffiths v Kerkemeyer principle.

As for past economic loss, I accept the calculations and methodology of Vincent's, Chartered

Accountants, in Ex.21.

Net Workcover payments have been deducted for interest purposes but not Social

Security payments as the defendant failed to prove the amount of those payments: Patorniti v

Carter (Supreme Court of Queensland 1820 of 1994, 15 July 1997, unreported). The calculation

is thus $150,711.00 less $16,322.88 gross benefits and tax of $2,502.10 which equals $136,890.

Interest at 6% for 303 weeks equals $47,859.00.

Both parties are agreed that the sum recoverable in accordance with the principle

expressed in Fox v Wood (1981) 148 CLR 438 should be $2,502.10.

Future economic loss

I find that the plaintiff is likely to secure full time employment of his choice within two

years of the date of this decision. The evidence is that he has been seeking employment for some

time and, of course, he has obtained employment in the past. The factors which operated to

prevent him retaining the employment he secured, in my view, will quickly dissipate. I take into

account the fact that there was an appreciable risk at all relevant times that the plaintiff's

employment with the defendant would have come to an end well before any normal retirement

date (as a result of no legal wrong on the part of the defendant) through enforced redundancy or

as a result of the plaintiff's developing a disinclination to pursue an inherently stressful,

dangerous and restrictive occupation. The plaintiff was made redundant in 1991 but succeeded

51

in appealing against that decision.

In order to make some allowance for the possibility that the plaintiff will resume full time

paid employment within two years and to take into account the vicissitudes of life, I find that the

plaintiff's future loss of income should be calculated in accordance with Vincent's calculation and

methodology at the rate of $545 per week, discounted at 5% to obtain present values over a

period of 18 months. That will also serve to take into account the likelihood that the plaintiff will

obtain part time employment well within two years. In the unlikely event he should fail to secure

full time employment within that time, it is highly likely that he will be able to secure part time

employment acceptable to him. I have also had regard to the risk that the plaintiff may not return

to full time work within two years in making this assessment: cf Malec v J.C. Hutton Pty Ltd

(1990) 169 CLR 638 at 642-3.

There will be an allowance for lost superannuation, again in accordance with the

methodology in Ex.21.

As the calculations of damages put before me by the parties, necessarily, were made

without reference to the facts as I have found them, I propose to defer the making of an order to

give the parties the opportunity of recalculating, and hopefully agreeing on, a schedule of

damages based on the above findings. I propose to list the matter, on a date convenient to the

parties, next week in order to entertain any further necessary submissions if agreement cannot

be reached, and also to receive submissions on costs.