William Wodrow v the Commonwealth of Australia [1991] ACTSC 114; (1991) 105 FLR 278 (13 December 1991)

SUPREME COURT OF THE ACT

WILLIAM WODROW v. THE COMMONWEALTH OF AUSTRALIA
S.C. No. 1 of 1984
Negligence - Damage
[1991] ACTSC 114; (1991) 105 FLR 278

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - employer's liability - action in tort and in contract - whether duty of care different in tort from duty of care in contract - foreseeability causation and damages - narrower in scope in contract than in tort - no new question of principle.

Negligence - foreseeability of harm and causation - whether circumstances of employment gave rise to foreseeability of anxiety neurosis - no question of principle.

Negligence - distinct from action for mental distress intentionally caused by unjustified act - whether action lies in Australia for latter - whether employer liable for such acts on part of employee.

Negligence - employer's liability - personal duty of care - vicarious liability - distinction - whether employer liable in breach of contract whether liability is vicarious.

Damage - foreseeability and causation - plaintiff with pre-existing personality problems aggravated by employment duties becomes subject to compensable anxiety neurosis - how long condition compensable.

Glass and McHugh, Liability of Employers, 2nd ed. p 2

Trindade and Cane, Law of Torts in Australia (1985)

Wilkinson v Downton (1897) 2 QB 57

Bunyan v Jordan [1937] HCA 5; (1936-37) 57 CLR 1

HEARING

CANBERRA
13:12:1991

Counsel for the Plaintiff: Mr I. Byrne and Mr C. Kilduff

Solicitors for the Plaintiff: Ahern Morris and Vincent

Counsel for the Defendent: Mr R. Williams QC with Mr J. Brewster

Solicitors for the Defendent: Australian Government Solicitor

ORDER

Written submissions on any of the matters referred to are to be received no later than 19 December 1991.

The case be stood over generally with liberty to restore on two days notice.

DECISION

1. Pleadings

2. The plaintiff was employed by the defendant (the Commonwealth) as an engineer from 1 December 1970 to 24 July 1980. His employment terminated when he was retired for "invalidity", that is incapacity for duty. He alleges that his incapacity was brought about by a condition of chronic anxiety neurosis and that that condition, which continues to render him unfit for most, if not all, employment, was caused by circumstances for which the Commonwealth is liable to him in damages.

3. The plaintiff's claim is brought in both contract and tort and is pleaded in the amended statement of claim as follows:
"2. At all times between the 1st day of December

1970 and continuing it was a term and condition of the
contract of employment between the plaintiff and the
defendant and/or it was otherwise the duty of the defendant
to take all reasonable precautions to avoid the risk of
injury to the physical and mental health of the plaintiff of
which the defendant was or ought to have been aware.
3. Between the 1st day of June 1976 and
continuing the plaintiff was subject to stress by the
wilful, malicious, unfair and improper conduct of the
defendant its servants and agents and such work-related
stress as to cause him to suffer a stress-related illness to
such an extent that the plaintiff became and remains unfit
for the performance of the duties of his office and
otherwise suffered and continues to suffer loss and damage.
4. The said stress-related illness was caused by
the breach of the said contract of employment between the
plaintiff and the defendant and/or duty of care owed by the
defendant to the plaintiff in that the defendant between 1st
June 1976 and continuing failed to exercise any or any
reasonable care for the safety of the plaintiff."

4. Particulars of the breach then follow and the amended statement of claim concludes with a claim for "damages for personal injury caused by the breach of contract and/or duty of the defendant and interest thereon pursuant to s.53A of the ACT Supreme Court Act 1933 (as amended) and costs."

5. The amended grounds of defence admit the allegation of employment but otherwise put in issue all the allegations in paragraphs 2, 3 and 4 of the amended statement of claim. The defence also sets up a defence that the plaintiff's claim is statute barred. The particulars set out in paragraph 4 of the amended statement of claim are as follows:

"PARTICULARS OF BREACH OF CONTRACT OF
EMPLOYMENT/DUTY OF CARE
(a) Following April/May 1977 when the plaintiff
was an author of a report critical of Department of Defence
management, the plaintiff was given work to perform with
unreasonable deadlines and insufficient resources to
complete such work.
(b) In August/September 1977 the plaintiff to the
knowledge of the defendant exhibited physical symptoms of
overwork and stress.
(c) Whilst the plaintiff was on sick leave he was
subjected by members of the Department of Defence Management
to demands to explain certain press reports on pain of dismissal.
(d) In November 1977 the plaintiff was transferred
from the FFG project to a non-existent position in
Department of Defence, Technical Training Section, Training
and Education Policy Branch.
(e) From time to time between November 1977 and
mid September 1979 the plaintiff was subjected to threats of
disciplinary action and other measures and displayed
symptoms of stress, to the knowledge of the defendant in
June 1979 including chest pains, dizziness, fainting and
severe headaches.
(f) About 26th October 1978 the plaintiff was
informed that he was being kept under surveillance.
(g) In mid September 1979 the plaintiff was
ordered to produce a policy paper in Continuing Technical
Training for Departmental consideration within the following
6 weeks showing course programs which was an unreasonable
deadline and for which the plaintiff was provided with
inadequate resources.
(h) On 15th November, 1979 having completed the
report the plaintiff was ordered to recall it and threatened
with disciplinary action.
(i) On 22nd November 1979 the plaintiff suffered a
nervous collapse comprising an inability to move his left
side, with chest pains and severe headaches followed by
anxiety and depression ultimately developing into Chronic
Anxiety Neurosis.
(j) During absence on sick leave and particularly
during January 1980 the defendant caused numerous requests
for sick leave applications to be made to the plaintiff
notwithstanding the same had previous (sic) been provided.
(k) As a result of the work-related stress imposed
on the plaintiff he was recommended for retirement on 9th
April 1980 and was retired from employment of the defendant
on 24th July 1980.
(l) Since 22nd November 1979 the plaintiff has
suffered from Chronic Anxiety Neurosis and his employment
prospects and career have been permanently damaged.
(m) At all material times the defendant was or
should have been aware that the plaintiff was being
subjected to unreasonable work-related stress such as was
likely to damage his health and/or was aware at least from
August/September 1977 or thereabouts that the plaintiff's
health was susceptible to such stress and was aware of
further symptoms in June 1979.
(n) Notwithstanding the matters referred to in (m)
hereof the defendant continued to subject the plaintiff to
unreasonable work-related
stress and/or to stress which it knew or ought to have known
would cause a damage to the plaintiff's health.
(o) The defendant continued such work-related
stress and other stress so as to cause the permanent damage
to the health of the plaintiff on 22nd November 1979 and continuing.
(p) As a result the plaintiff's career prospects
and professional standing have been damaged."

2. Outline of Facts

6. Most of the primary facts on which the plaintiff relies are not in substantial dispute, and insofar as the particulars under paragraph 4 of the amended statement of claim provide a narrative of factual events, most of them are established by the evidence. Apart from the restricted areas of factual dispute, the matters in issue relate to the inferences to be drawn from the facts.

7. Several of the medical opinions in the case place importance on the plaintiff's background and it is appropriate to refer to it in some detail. He was born in Glasgow in Scotland on 18 May 1940. His father died when he was young and he grew up and went to school in an institution, leaving at the age of 15. He had a distant relationship with his mother and he continued the connection with the institution after he left it. He started as a store boy in a Glasgow shipyard, began and eventually finished an apprenticeship as a marine fitter and draftsman, matriculated for entrance to the University of London, enrolled there as an external student, and graduated Bachelor of Science (Engineering) in 1969. At that stage he was working as a materials and process engineer for the Rolls Royce company at its experimental research and development section, Scottish Division. His work was associated with the development of turbo-powered aeronautical engines, which were then in their infancy. In late 1970 when the company appeared to be in financial difficulty, the plaintiff heard that the Australian Government had purchased equipment for a new form of welding and materials analysis. According to the plaintiff, "the Australians had nobody with operational and developmental experience to apply the knowledge". He took a trip to Australia House in London and after several interviews was offered and accepted a position at the Ordnance Factory, run by the Department of Supply, Maribyrnong, Victoria where he understood that the equipment in question was being or about to be installed. He arrived in Australia on 21 February 1971 and the next day commenced what duties there were. He supervised the installation for several months at the end of which he "had to inform the management that the equipment they had purchased was not suitable". On 4 February 1972 he sought to leave the employ of the Commonwealth, but the Commonwealth refused to release him from a three-year bond in the sum of $3,750 which was part of his contract. The plaintiff being, as he put it, effectively without a job, applied successfully for a position in the aircraft section of the Department of Navy under the Director of Aircraft Engineering. He came to Canberra for that purpose on 13 March 1972.

8. The work in the section was concerned with maintenance policy for aircraft systems and the like for what was then the Royal Australian Navy Fleet Air Arm. In early 1973, according to the plaintiff, he discovered several irregular payments under maintenance contracts.

9. The plaintiff appears to have joined the Commonwealth as a member of the Public Service on six months probation. He joined at the level of Engineer Class 1, at some stage was promoted to Engineer Class 2 and then on 26 April 1973 was promoted to Engineer Class 3.

10. On 4 October 1974 the plaintiff was "tasked" to advise on what was called the "Fast Frigate Project" (referred to in the documents as FFG). His duties were limited to advising at that stage on "maintenance philosophy". That was a field in which he had particular expertise because new frigates to be supplied to the Navy were to be powered by gas turbine engines similar to those with which he had had experience back in the years in Scotland. The plaintiff appears to have been engaged only briefly in the FFG project at that stage.

11. On 23 April 1976 the plaintiff was notified that he was to be part of a team to review Naval Technical Services and report thereon (the NTS Report). The review was concerned particularly with the allocation of duties between engineers and technical officers within the Navy and the Defence Department.

12. Until that time (presumably from when he transferred to Canberra) the plaintiff had, according to his unchallenged evidence, been employed by the Commonwealth under the provisions of the Naval Defence Act. On 19 June 1976 all that changed and his position together with those of other defence personnel became subject to the Public Service Act by a process which I do not pretend to understand.

13. On 29 March 1977, prior to completion of the NTS Review, the plaintiff was informed that he was required to transfer to a position in the FFG project. About a month previously, another officer, a Mr Langdon, who was working on the FFG project had died and the plaintiff was appointed in his place. (Years later the plaintiff was to express the suspicion that Mr Langdon's death had been brought about by corrupt and inefficient practices within the Department.) The plaintiff nevertheless continued working on the NTS Review until it was formally completed on 25 May 1977. At the same time the plaintiff began duties on the FFG project.

14. The officer in charge of the FFG project was Nigel Richard Denver Berlyn, then a Captain, and by the time of the hearing a retired Rear-Admiral. He had dealt with the plaintiff when the plaintiff had given advice on gas turbine engines in 1974. By 1977 there were about eighty people engaged in the project, about ten of them in the United States and the rest in Australia. The project was divided into sections, each with a manager. The plaintiff was in the Integrated Logistics Support Section. He occupied the position of Logistics Officer Engineering (LOE). Some of the duties of that office had been performed by a Mr Gary Jones who had been posted to the United States to work in a similar project in the project office there. The other officer in the section was the Logistics Officer Support, a Mr Langworthy (LOS). The section was headed by the Integrated Logistics Support Manager (ILSM), initially a Commander Hayes, who was replaced in August by Commander John Ingram.

15. It is not easy to know exactly what was required of the Logistics Officer Engineering or exactly why the plaintiff found the job demanding to the extent that he felt that it was impossible to carry it out properly.

16. However, from the outset the plaintiff complained of insufficient resources by way of staff and technical data and lack of necessary information from the United States. For whatever reasons, the plaintiff felt that neither Captain Berlyn nor Commander Ingram were capable of giving adequate direction to the project. In late September things came to a head.

17. On 23 September 1977 there was a meeting at Garden Island with the plaintiff, Captain Berlyn, Commander Ingram, Mr Gary Jones and United States representatives present. At that meeting the plaintiff spoke at length about the lack of data being supplied from the United States end. In the plane on the way back to Canberra, Captain Berlyn spoke to the plaintiff in terms critical of the way in which the plaintiff had spoken at the meeting.

18. On 27 September 1977 Commander Ingram delivered to the plaintiff a copy of a minute which was marked for distribution to him and Mr Langworthy with copies to Captain Berlyn and Lieutenant Commander Greig of the Maintenance Task Working Group.

19. The minute (the Ingram minute) was something of a bombshell. It was very critical of what Commander Ingram considered to be the incompetence and lack of co-operation on the part of the plaintiff and Mr Langworthy. Later on the day of delivery Captain Berlyn called a meeting at which Commander Ingram and the plaintiff were present and at which Captain Berlyn raised for discussion the question of the plaintiff's performance as it related to the progress of the project. The plaintiff at that meeting sought to have the Ingram minute withdrawn in writing. Captain Berlyn declined to press for a formal withdrawal and Commander Ingram declined to give it.

20. A number of other meetings took place and minutes and other documents passed between the various people concerned over the next few weeks. The plaintiff grew increasingly concerned about his position and formed the view that he was being harassed because of his attempts to highlight inefficiencies and corruption in some of the areas upon which his duties had touched both in the NTS Review and in the FFG project. At one stage in November 1977 he wrote to the Prime Minister. At about that time there was mention in the Canberra Times of allegations of inefficiency and corruption in the Defence Department relating to matters of supply.

21. On 16 November the plaintiff wrote to the Chief of Naval Materiel and to the Chief of Naval Technical Services complaining of the Ingram minute and of several other matters and requesting his release from "direct on-line management and supervision" of Commander Ingram. On the same day the plaintiff was called before Captain Berlyn and at that meeting Captain Berlyn made reference to the disciplinary provisions of the Public Service Act. Later in the month the plaintiff had meetings with Mr Norman Attwood, Chief Officer and Deputy Secretary of the Defence Department, and Mr Trevor Hickman, Assistant Secretary Civil Personnel of the Department (ASCP). He was told that he would be transferred to the Directorate of Technical Training. He became distressed and was sent home where he remained for three days on sick leave.

22. Upon his return to work on 5 December 1978 the plaintiff commenced duties in the Technical Training Section, Training and Education Policy Branch. He said in evidence that there was no actual position for him to occupy and that the work was demeaning for a professional engineer, being mainly of a menial nature such as photocopying. By January 1978 he was taking active steps to change to "an engineering position". The plaintiff was directly under the supervision of a Mr Wall, Director of Technical Training (DTT). From March 1979 the Director-General of the Branch to whom Mr Wall was responsible was Brigadier Cohen (DGTEP).

23. In July 1978 the plaintiff was the subject of a hoax telephone call when a message was left for him at his workplace to ring a telephone number which was that of the Soviet Embassy. On 19 October 1978 a colleague in the Professional Officers' Association, Mr Whiteford, received a telephone call in which he and the plaintiff were warned to "stay away from the media". In mid-November on two occasions Mr Whiteford's calls to the plaintiff were redirected to a departmental security officer.

24. In the second half of 1978 a joint parliamentary enquiry into Defence procurement systems got underway. The plaintiff was requested or summoned to give evidence. The plaintiff was advised by Mr Attwood to seek "guidance from proper authority within the Department" before publicly commenting on matters connected with his official duties. An Assistant Secretary of Defence, Mr Eltringham, advised the plaintiff that it was not in his "best interests" to mention anything to do with the NTS Review or Naval projects to the Enquiry. There were further meetings with Mr Attwood relating to the plaintiff speaking to the media.

25. In the meantime, between June and September 1978, the plaintiff was seeing his local practitioner, Dr Roantree, for severe headaches, stomach and bowel problems with trigominal neuralgia. In October and November Dr Roantree's records noted "as above plus hypertension". From 23 October to 1 November 1978 the plaintiff was absent from work on sick leave. The departmental records note "associated work/management induced stress".

26. In May and June 1979 the plaintiff presented to Dr Roantree with severe headaches, glandular infections, fainting and dizziness. However, he lost no time from his duties in that period. The work at that stage consisted mainly of organizing training seminars.

27. In September 1979 the plaintiff was directed by Brigadier Cohen to prepare a discussion paper for a technical training programme over the ensuing five years. Brigadier Cohen stipulated that the paper be prepared in six weeks. The plaintiff set about preparing the paper. He consulted with a number of people outside the Department as well as within. They included Professor Emery and others at the Centre for Continuing Education at the Australian National University. The plaintiff was under considerable pressure to complete the job in time, but by 8 November 1979 he had a draft ready. He showed it to Mr Wall. He sent it off to various people whom he said he had consulted during its preparation. On 14 November 1979 Mr Wall, acting on the instructions of Brigadier Cohen, sent a minute to the plaintiff requiring him to seek the return of all circulated copies of the draft and requesting the plaintiff to observe departmental directives dealing with the signing of correspondence. This was followed by exchanges of minutes between the plaintiff and Mr Wall, culminating in Mr Wall writing a minute on 16 November 1979 to Brigadier Cohen recording his dissatisfaction with the plaintiff's behaviour and his opinion that the plaintiff should not be considered for promotion to Engineer Class 4 for at least a year and until he demonstrated "considerable improvement in attitude and discipline".

28. By 19 October 1979 the plaintiff was losing time from work because of hypertension, headaches and insomnia. He was back at work on 2 November 1979 and continued there until 22 November when he collapsed at work and went off again on sick leave. He did not resume duty and was compulsorily retired for stress-related illness on 24 July 1980.
Nature of Plaintiff's Claim

29. The plaintiff's claim is framed in contract and alternatively in tort. In most cases it does not matter whether an employee suing an employer for personal injuries sues in tort or contract because almost invariably the claim in tort is for negligent breach of a duty of care. It seems to be assumed that the duty of care recognized for the purpose of liability in negligence is coterminous with the duty implied (almost never expressed) in the contract of employment. In either case, whether "contractual or delictual" the duty "arises by necessary implication from the relationship of employment" (Glass and McHugh, Liability of Employers, 2nd ed. p 2). Nevertheless, there is a distinction between liability arising out of the employer's personal duty of care and vicarious liability which imputes liability to the employer for the negligent act of the plaintiff's fellow employee, that act being a breach of the duty of care owed by the fellow employee to the plaintiff. There is a further point which appears to be free of authority and even of academic attention. It is that there is a difficulty in seeing how vicarious liability for the negligent act of a fellow employee arises out of a duty of care implied in the contract of employment. In the present case the amended statement of claim does not distinguish between acts and omissions which constitute breach by the defendant of its personal duty to take reasonable care for the safety of the plaintiff from those acts and omissions on the part of Commonwealth officers for which the defendant is alleged to be vicariously responsible. The distinction is best illustrated by examination of the allegation of a harassing and anonymous telephone call which the plaintiff says he received at work in June 1978. I assume that it was likely that the call was made by someone on the internal Departmental telephone network and therefore by a person likely to be in the service of the defendant. Nevertheless the acts relied upon could not be said to be within the scope of employment by the defendant of the person who made the calls; the defendant's liability, if any, would have to be based on a failure to take reasonable care to prevent such a call or to protect the plaintiff from it. The distinction between these two heads of liability in negligence must be borne in mind when considering the various incidents and groups of incidents upon which the plaintiff relies, and when considering the alternative claim in breach of contract.

30. For certain purposes the distinction between a claim in contract and a claim in tort may be of importance, and in the present case where questions of causation and the statutory limitation period are concerned, the distinction will have to be addressed. However, what is particularly striking in the present case is that the plaintiff's claim in tort is not confined to one of negligence. Paragraph 3 of the amended statement of claim alleges that the plaintiff was "subject to stress by the wilful, malicious, unfair and improper conduct of the defendant", an allegation which is quite extraneous to any necessary ingredient of negligence. Counsel for the plaintiff in his address sought to identify this head of tortious liability which is rarely sued upon (this is the first time I have encountered it outside the text books). It is so rare, almost rarified indeed, that it lacks a commonly accepted name.

31. Trindade and Cane in the Law of Torts in Australia (1985) use several terms: "the action on the case for damages for physical injury" (p 57), "the action on the case for nervous shock" (p 59), "the intentional infliction of mental distress" (p 67). They conclude that there is no clear authority in Australia that an action on the case for damages lies for the intentional infliction or purely mental distress, but that "we need and could well do" with such a cause of action (p 69).

32. A court, particularly at first instance, is concerned with the law we have, not the law we need. There is some authority to the effect that there is a cause of action recognized in Australia which is at least like that relied upon by the plaintiff. Such a cause of action goes back as far as Wilkinson v Downton (1897) 2 QB 57. In that case Wright J., sitting with a jury, said at pp 58-59 that a wilful act calculated to cause physical harm to a plaintiff, and which in fact causes physical harm, "without more appears to me to state a good cause of action, there being no justification alleged for the act". In Bunyan v Jordan [1937] HCA 5; (1936-37) 57 CLR 1, although the plaintiff was ultimately unsuccessful, there was implied recognition of the cause of action articulated by Wright J. Latham C.J. said at p 11 that he accepted the law as so stated "without inquiring whether the principles .... are too broadly stated". At p 12 Latham C.J. concluded that "The acts of the defendant, taken all together, cannot be said to be calculated or likely to cause harm to any person - even to his sons, if they were normal persons". Latham C.J. stressed that the defendant's conduct (a suicide threat overheard by the plaintiff) did not occur in the plaintiff's presence, was not addressed to the plaintiff and could not be expected to be witnessed by the plaintiff. Dixon J. (as the then was) said at p 17 that it was "clear that the defendant did not intend to bring upon the plaintiff a nervous breakdown or any physical harm". He said at p 16:

"I have no doubt that such an illness (i.e. a
sufficiently emotional condition to lead to a neurasthenic
breakdown amounting to an illness) without more is a form of
harm or damage sufficient for the purpose of any action on
the case in which damage is the gist of the action, that is,
supposing that the other ingredients of the cause of action
are present."

33. The judgments in the High Court appear to have behind them a premise that there would have been a good cause of action if the essential ingredients had been present. When the case was in the Supreme Court of New South Wales (1936) 36 SR 350, Jordan C.J., in a passage which did not draw criticism in the High Court said at p 353:

"It is established by the authorities that a person is liable for
any act of his which has so terrifed another person as to injure
him, if the act was done with the intention of alarming the other,
and was either of a kind reasonably capable of so terrifying a
normal human being, or was known or ought to have been known to the
doer of the act to be likely to terrify the person injured for
reasons special to that person."

34. However, it will be noted that the remarks of Jordan C.J. are restricted to an intention to alarm or terrify, an intention which is not alleged against the defendant in the present case.

35. Nevertheless, I intend to proceed on the basis that there is tortious liability for the unjustified and intentional infliction of harm, including mental distress. Liability in such a case is to be distinguished from liability in negligence in three or four significant ways. First it looks at the subjective element of the defendant's intention without reference to the objective quality of the act (reasonableness). Further, but less clearly, in looking at the subjective element, it is not concerned with the question of foreseeability of harm. Again, there is emphasis on the requirement that the harm intended and in fact caused be more than annoyance, embarrassment, hurt to feelings and the like. It must be or amount to what Dixon J. called "a neurasthenic breakdown amounting to an illness". Lastly, liability will not attach to the act if it is lawfully justified.
4. The Naval Technical Services Report (NTS Report)

36. There is no complaint on the part of the plaintiff that there was any act or omission on the part of the defendant that constituted a failure by the defendant to take proper care for his safety prior to 1 June 1976. There is no complaint of damage occurring prior to August 1977. It was at about the beginning of June 1976 that the plaintiff commenced his duties in the preparation of the NTS Report and that work carried through until about May 1977.

37. In the particulars of breach set out in the statement of claim, there is no complaint of any conduct on the part of the defendant prior to April/May 1977. However in the further particulars of 29 June 1986, furnished some ten years after the event and five years before the hearing, it was claimed on behalf of the plaintiff that "the nature of the work caused the stress-related illness." The duties undertaken are set out in the further particulars in a reasonably succinct manner. The evidence, by and large, supports those particulars. The nature of the work, however, is the subject of a separate part of the further particulars. This part of the particulars is prolix and argumentative. In my assessment, the claim as particularised is not supported by the evidence and the particulars are exaggerated. By way of illustration I quote the first paragraph:

"The nature of the work was intensive and very
demanding from an intellectual standpoint, requiring the
application of a high level of academic and analytical
skills, in terms of multi-discipline engineering,
administrative and management resource concepts, and judgments."

38. The further particulars also make the complaint that no duty statement was available for the task performed by the plaintiff and that the duties performed were "extraneous" to those appropriate to a professional officer at the plaintiff's level. There is the further complaint that the workload imposed on the plaintiff by the NTS review was excessive and required the plaintiff to work without pay at weekends in his own time. These latter complaints were not really pursued by counsel for the plaintiff at the hearing and, in my view, the facts do not disclose any want of reasonable care on the part of the defendant in the precise respects alleged. In my view, the plaintiff came to believe that the NTS Report and his role in its preparation was more important than it was ever intended to be, indeed, that those to whom he was responsible had on the one hand recognized him as having the unique qualities required to carry out the work on the review, but on the other hand, wanted to silence him and punish him once his skill and devotion to the task uncovered unpalatable truths about the incompetence and corruption of senior naval and defence officers, including persons who had set him to the task. Mr Attwood's evidence was that the final report of the Review went beyond the terms of reference and that it was not pitched at a sufficiently high professional level. I accept that evidence.

39. The terms of reference of the review suggest that what was required was a much more modest effort than that perceived by the plaintiff. The terms of reference were:

"(a) Examine existing working and organizational arrangements of
professional and technical/ drafting grades positions;
(b) Recommend to management variations to such
arrangements, necessary to allow the most efficient,
economic and effective utilization of staff; and
(c) Recommend to management any reorganization necessary."

40. The plaintiff came to believe that his role in the Review team was that of Chairman, or so he told some of the doctors. Yet the documentation shows that the plaintiff was never appointed to that position and that he was simply the engineering representative on the three-man team. Whether he became a defacto Chairman was not apparent from the evidence. His colleagues on the team did not give evidence.

41. I have little difficulty in concluding that there was no breach of duty on the part of the defendant in assigning the plaintiff to perform duties on the NTS Review.

42. However, as I understand the plaintiff's case, it is not only the assignment of the plaintiff to the particular tasks that is alleged to constitute the breach. It was the reception of the report that appears to have assumed greater importance, at least in the plaintiff's mind as time went by. The further particulars of 29 June 1986 allege "undue influence/pressure on the NTS Review team by ASOE (Mr Charles Hill) and CESTABS (Major-General Woodland) to get the authors to remove from the report criticism of the Tange prescription for the DOD". Yet there is no evidence to support this allegation at all, not even from the plaintiff himself. The closest the evidence gets on this aspect is in the statements made to the doctors long after the event. Dr Roantree, the plaintiff's general practitioner, observed in the four years dating from July 1976 a marked deterioration in health evidenced by "obvious stress-related symptoms, which upon examination could be attributed to no other causes than the situation of his employment". But there is no evidence that Dr Roantree reported those findings to anyone until he wrote to the Chief Medical Officer on 16 February 1980 (Exhibit P) recommending the plaintiff's retirement on the ground of illness. By the time of a further report or paper prepared some time in 1986, Dr Roantree was able to expand his view in the following terms:

"Early symptoms of a stress related condition first
manifest themself in mid-1977.
At the time, he was overburdened with work, undertaking a major
review of the Division of 'Naval Technical Services', at the
direction of Executives of the Defence Department.
During this time there were signs of tiredness,
fatigue and headaches.
Psychologically, he was stressed at having to be in
the position of taking evidence (from all section managers
and the workforce), on morals and personality problems,
inefficiencies, irregularities in defence contracting,
massive waste in expenditure of public monies and even
fatalities due to technical and managerial incompetence.
Upon tabling his report, he was placed in a
vulnerable position under the very management he had been
tasked to criticise. The situation giving rise to the
opportunity for retribution to be taken against him.
At the most senior executive level pressures were being applied
to have him change his report, but he refused."

43. However, these words were written ten years after the period now under consideration and there is no evidence of any contemporaneous note or expression of opinion otherwise by Dr Roantree or anyone else that the plaintiff was overburdened with work or complained about efforts on the part of his superiors to suppress the NTS Report or to penalize the plaintiff for the views that were expressed in it. It was when Dr Merrifield saw the plaintiff in July 1984 (upon reference from Dr Roantree after the plaintiff returned to Canberra from Queensland where he had gone to live) that the plaintiff seems to have for the first time blamed this early period from 1976 to 1977 for his subsequent illness. The account rendered by Dr Merrifield is of some significance because it succinctly puts the case that the plaintiff has sought to rely upon ever since:

".... he had led a charmed life up until 1976 and
then had been given a very stressful job, and in the course
of his duties there he uncovered some problems such as he
felt that due to incompetence and negligence that people had
actually been killed and additionally touched on areas of
corruption. When he submitted his report in 1977 he was
asked by the top echelon to modify it and said he was
threatened and told that his career would be finished. He
declined to modify the report.
About that time, a friend aged 38, who was under
similar stress to him, died suddenly and he was put into his
job and he felt that that was a very poor decision and that
the people he had criticised in his initial report were now
in control of him. They overworked him and underworked him
and demeaned him in every way until finally his health broke
down. He said that he got compensation for this. Regarding
the friend who died, he said he couldn't exclude the
possibility that "they" had killed him.
He feels he has been harassed all the time, that
that harassment has affected his health a great deal. He
suffers with headaches, sleeplessness, chest pains,
listlessness, kidney pains and does seem to have bouts of
depersonalisation. These symptoms are infinitely worse when
there is outside pressure and he feels at the moment that
there is outside pressure."

44. Dr Milton, a psychiatrist, saw the plaintiff on behalf of the defendant in December 1990 and February 1991. Dr Milton writes of this early period that when the NTS Report did not meet with the enthusiastic response which the plaintiff expected, "he could not accept that the report might have been of a mediocre or irrelevant nature", and could only conclude that the report was suppressed because it was dangerously important. For reasons which I trust will emerge, I think that Dr Milton's interpretation of events is likely to be correct. In any event, as far as the period June 1976 to May 1977 is concerned, there was, in my view, no failure on the part of the defendant to take reasonable care for the plaintiff's safety or welfare. Nor is it shown that there was any action on the part of anybody at all which was intended to injure the plaintiff.

45. The NTS Report is in evidence (exhibit C). It appears to be a lengthy, detailed and technical document. I informed counsel during the course of the hearing that I did not consider that the case was about the accuracy of the NTS Report and that I would not read any of it unless counsel directed my attention to some part of it. My attention was not so directed and I have not read any of the NTS Report.
5. The Fast Frigate Project (FFG)

46. The liability of the defendant for breaches of duty which occurred during the time he was engaged on the FFG between April and the end of November 1977 is alleged to have occurred by reason of the conduct on the part, chiefly, of Captain Berlyn and Commander Ingram. It was during this period that the plaintiff alleges that he began to exhibit physical symptoms of stress-related illness as a result of the work he was assigned to do and as a result of the conduct of the officers mentioned and that his illness became known to the defendant. As in the case of the work done on the NTS Review, the evidence was vague as to exactly what the plaintiff's duties were. Furthermore, the further particulars of 27 June 1986 are prolix, argumentative and hardly go to clarify the nature of the plaintiff's claim. They make a number of allegations about which there was no evidence, for instance, that "the duty statement did not accord with PSB classification standards and had been prescribed by unqualified or inappropriately experienced personnel", and that "the attack on the plaintiff by his service supervisor coincided with the establishment of a six man senior management team at the direction of Chief of Naval Service (CNS), Admiral Synnott, to consider and refute the recommendations of the NTS Report". At the heart of the plaintiff's complaints in this period as well as the subsequent period in the Technical Training Section, is the perception that he was a competent professional civilian officer whom the Commonwealth placed under the supervision of armed service personnel who lacked proper professional training and perceptions and who brought a rigid and narrow approach to bear on problems which were beyond their capacity.

47. The plaintiff complains also that he was continuously hampered and frustrated by the failure of the Commonwealth to supply him with assistance and resources to do the job which the Commonweatlh had set him to do. I accept that complaints of this nature were made by the plaintiff to Captain Berlyn, probably increasingly as time went on. Captain Berlyn's evidence was that the plaintiff was unable or refused to see that the task of assessing the logistic requirements of maintenance and supply for the new frigates required a broad approach and that it was not necessary to plan the details of actual requirements. He urged the plaintiff to adopt a "top down" approach. The plaintiff however saw this as unwarranted interference with his professional judgment and, later, proof of Captain Berlyn's part in a conspiracy to stop him seeking and broadcasting the truth. It was submitted on behalf of the plaintiff that the "real and hidden agenda" of the defendant was to get the frigates to Australia and to work on maintenance problems afterwards; further that what the defendant wanted from the plaintiff was "an unprofessional, unreliable assessment which it could use to justify action that had been taken". In short, it is alleged that those in charge of the FFG wanted to use the plaintiff as a cover up, that he refused to be part of the deception and so they were out to silence him.

48. It is true that both Captain Berlyn and Commander Ingram lacked university degrees. Captain Berlyn, however, had tertiary qualifications to the extent that he had completed the Marine Engineering course at the Royal Navy Engineering College. He served thirteen years in the Royal Navy before joining the Royal Australian Navy in 1965 and he became the Project Director, FFG in 1974. By 1977 the FFG had reached a critical stage. Two turbo driven frigates were on order and a third was contemplated. The Integrated Logistics Support Unit (ILS) was formed in order to assess and predict ongoing maintenance requirements for the frigates. When the plaintiff was appointed to perform duties as the engineering officer in that Unit, Captain Berlyn made the selection on conflicting advice. According to his evidence, Captain Berlyn rejected the advice of Captain McMillan that the plaintiff "was a difficult person to have work for you" but he accepted the advice of a Mr Cameron, Director-General of Naval Design (DGND) that the plaintiff was the only person in the Department likely to be available. Captain Berlyn accepted the latter advice after interviewing the plaintiff and concluding that he could do the job.

49. The plaintiff gave evidence of an incident soon after he joined FFG which, if it occurred, suggests that Captain Berlyn was determined from the start to harass the plaintiff. The plaintiff said that on 15 June 1977 Captain Berlyn asked for a copy of the NTS Report and later, presumably after reading it, told the plaintiff that he would ensure that the Report never saw the light of day because it was too critical of Naval officers and he took the criticisms personally. Captain Berlyn's evidence was that he never said any such thing and far from requesting to see the NTS Report, it was the plaintiff who kept asking him to read it and gave him a copy. Captain Berlyn said that he skimmed through the Report, but that he had other pressing commitments, particularly in the light of the impending possibility of the purchase of the third frigate, and had "no time for interest reading".

50. I accept Captain Berlyn's version of the events in question. Unless one assumes that there was already some conspiracy against the plaintiff between Captain Berlyn and others, there was no reason for him to threaten to prevent publication of the NTS Report. In any event, there is no evidence that Captain Berlyn had any say in the matter or, again unless one accepts the plaintiff's premise, that he had any reason to assert influence in the matter. It is difficult to see what interest Captain Berlyn had in harassing the plaintiff and preventing him from getting on with his job. Captain Berlyn's interest was not in the failure of FFG but in its success. Harassment of the plaintiff was not likely to contribute to that success. I am not satisfied that Captain Berlyn, or anyone else, deprived the plaintiff of resources or technical data or any other means of satisfactorily carrying out his work in the FFG Project.

51. The Garden Island incident was another matter upon which the plaintiff relied to establish animosity on the part of Captain Berlyn. Captain Berlyn's evidence was somewhat vague on this matter. His attitude to the incident was in contrast to that of the plaintiff in that he did not attach a great deal of importance to it at the time, but he remembered that at the meeting the plaintiff had spoken at length and in great detail and that what the plaintiff had said had been "inappropriate". Captain Ingram did not deny that on the way back to Canberra he may have displayed his embarrassment to the plaintiff. I think it likely that by the time of the Ingram minute of 27 September 1977, Captain Berlyn was less than satisfied with the plaintiff's performance and that his attitude was communicated to the plaintiff.

52. The Ingram minute was an extraordinary document by any standards. Commander Ingram did not give evidence. Nevertheless, I do not attach a great deal of importance to his absence, even though there was no explanation for it. The document is eloquent enough. Amongst other things the author seemed to be comparing himself to Ulysses S. Grant. The minute was directed to the plaintiff and his colleague, Mr Langworthy, and marked for distribution to Captain Berlyn and one other officer, Lieutenant Commander Greig (otherwise identified as MTWG or LCDR). There can be little doubt that it expresses a disciplinarian and insensitive attitude that would be offensive to anyone on the receiving end with any sense of professional pride at least in civilian employment. Whether such a communication would be acceptable in the hierarchy of command in any of the armed services, I do not know, and it is not necessary to judge. However, its military analogies and the signature over the words "Commander, RAN" are distinctive. Enough further to say that the terms in which the Ingram minute were couched were bound to provoke a strong reaction amongst those it attacked. Mr Langworthy, it seems, reacted by resigning from the FFG or seeking a transfer elsewhere. The plaintiff's reaction, however, was stronger, more complex and indeed not easy to follow. There were a number of meetings between Captain Berlyn, Commander Ingram and the plaintiff precipitated by the minute, but not concerned entirely with the question of the minute itself. Captain Berlyn continued to be concerned about the plaintiff's work performance and the discussions were directed to that matter as well as to the minute. The plaintiff insisted on a withdrawal of the minute in writing. Captain Berlyn declined to require Commander Ingram to follow that course but he sought to assure the plaintiff that the personal insinuations were withdrawn and that there would be no wider circulation of the minute. Things, however, went from bad to worse. On 26 September 1977 Commander Ingram sent to the plaintiff a minute requiring a draft of a document to be presented to Captain Berlyn "this Thursday" relating to discussions with Air New Zealand for maintenance and overhaul of gas turbine engines. The minute is couched in temperate and reasonable language. The plaintiff, however, responded angrily, writing his comment across the top of the minute. He did, however, prepare the response as requested.

53. A number of meetings followed between late September and mid-November in which the plaintiff's work performance was discussed. His task at that stage included obtaining technical information from the Naval Attache in Washington and it seems that he was having difficulty in getting it. That particular matter placed additional strain upon him. On 16 November 1977 the plaintiff wrote a letter directed to two high ranking officers, Chief of Naval Materiel and Chief of Naval Technical Services, with copies to several other persons including the Public Service Inspector and the Secretary, Australian Professional Engineering Association (APEA). To say that the plaintiff's letter of 16 November 1977 was no less extraordinary than the Ingram minute, is an understatement. A stinging personal attack on Commander Ingram is accompanied by broad and strong criticism of management structure, particularly the dominance of service personnel over professional officers. There is criticism of "the general monologue approach of the service mind, laying down the law of command" which "denies the liberty of professional expression" and is foreign to "university training and current professional and engineering ethics". There are more particular criticisms of organization and management in the Naval Defence Supply Area which it is unnecessary to set out in detail or to discuss. Considering the letter as a whole it was small wonder that Captain Berlyn immediately convened a meeting with the plaintiff. What exactly was the purpose of the meeting and what transpired, however, is not so clear.

54. The plaintiff's evidence was that Captain Berlyn threatened him with disciplinary action and referred him to s.55 of the Public Service Act, a copy of which Captain Berlyn had open in front of him. Captain Berlyn denied making any such threat and said that the meeting was simply to investigate Commander Ingram's complaint of the plaintiff's conduct which followed the Ingram minute. Captain Berlyn said that he told the plaintiff that he was investigating those complaints but the plaintiff responded by refusing to answer any questions unless there was a representative of his union present. Captain Berlyn said further that when he persisted in seeking to hear from the plaintiff on this matter, the plaintiff stamped out of the room. Captain Berlyn conceded that he had a copy of the Public Service Act on his desk but denied that he threatened the plaintiff with disciplinary action unless the plaintiff withdrew his demand for withdrawal in writing of the Ingram minute.

55. Again I accept the account given by Captain Berlyn where it conflicts with that of the plaintiff. I take into account the failure of the defendant to call Commander Ingram or Mr Moran whom Captain Berlyn had invited to the meeting. There is otherwise not much conflict between the account of the plaintiff and that of Captain Berlyn. It is rather that the plaintiff puts a different and more sinister interpretation on the events.

56. I conclude that there was nothing in the conduct of Captain Berlyn during this period that involved any want of reasonable care for the safety of the plaintiff or any intention to cause the plaintiff harm. I am positively convinced that Captain Berlyn acted in a way which sought to reconcile the various conflicting interests and personalities within the overall exigencies of the FFG project. I am not convinced that reasonableness required Captain Berlyn to take some course other than that which he took and indeed none was suggested on behalf of the plaintiff. Indeed, the plaintiff's claim is not so much that Captain Berlyn was careless for his welfare but that he deliberately set out to harm the plaintiff.

57. As for Commander Ingram, whilst his minute displayed considerable lack of judgment in relation to the effect that it was likely to have on those to whom it was addressed, I am not convinced that he acted out of an intention to cause distress to the plaintiff or that his conduct involved any want of reasonable care for the safety of the plaintiff. Nor am I convinced that the defendant was negligent in not preventing Captain Ingram from issuing his minute. The minute was probably a shock to everyone concerned and in that sense not a foreseeable contingency against which the defendant should have provided. In any event no damages (apart from insult, injury to feelings and the like) is shown to have occurred to the plaintiff from the events surrounding the FFG project. The fact that the plaintiff was starting to show a stronger sense of grievance is not a matter that attracts damages, but it does start to set the scene for the next stage in the events.
6. Transfer to the Technical Training Section

58. Some time after the release of the Ingram minute, Captain Berlyn sought advice from Mr Hickman, Assistant Secretary, Civil Personnel (ASCP). From a conversation had between Mr Hickman and Mr Marshall, a representative of the plaintiff's professional association, on 22 November 1977, it appears that prior to 16 November 1977 Captain Berlyn had been told of the possibility of bringing disciplinary proceedings against the plaintiff under the provisions of the Public Service Act. On 18 November 1977 Captain Berlyn wrote to Mr Hickman reporting the unsatisfactory conduct of the plaintiff and requesting his temporary transfer elsewhere. This was contained in a minute which is not in evidence but which is referred to in exhibit AB which is a minute from Rear Admiral Doyle, Chief of Naval Materiel, to the Deputy Secretary in which Rear Admiral Doyle endorses the proposed transfer "so that a harmonious working team can be re-established in this important area of the FFG Project". The plaintiff in his evidence said that on the same day, namely 21 November, Mr Hickman spoke to him to say that he had been asked to see the plaintiff on behalf of the Mr Attwood to assure the plaintiff that no charges under s.55 of the Public Service Act would be laid. Mr Hickman was not called and I accept the plaintiff's evidence. Mr Marshall gave evidence that he noticed that the plaintiff was distressed before he spoke to Mr Hickman on 22 November. Mr Marshall's evidence was that in that conversation Mr Hickman said that he had asked the plaintiff if he wished to make application to Mr Attwood pursuant to Regulation 6 or Regulation 33 under the Public Service Act. That evidence is not contrary to the plaintiff's evidence and I accept it also. Mr Marshall said that in November he wrote to the Secretary, Sir Arthur Tange, on behalf of APEA suggesting that the plaintiff and Mr Langworthy be transferred from the FFG Project. At about the same time Mr Hickman approached Mr Attwood with a view to transferring the plaintiff to another position within the Public Service. Mr Attwood was agreeable to that course in principle, it was supported by the plaintiff's professional association, and according to the evidence of Mr Attwood, it was Mr Hickman who then identified a suitable position in the Technical Training Section.

59. On 24 November 1977 Mr Attwood wrote to APEA a letter in which he expressed concern at the way in which APEA had intervened in the matter and adding the following:

".... consistent with the wishes expressed by APEA,
and those of the officer, it has been possible to arrange
for Mr Wodrow to be placed in another area to perform
urgent work against the expectation of the early creation of
a proposed position of Engineer Class 3."

60. On the same day the plaintiff wrote a letter to the Prime Minister, which is not in evidence but which he said set out the discussions he had had to date and which pointed out that to remove him at that stage would damage the FFG project and the credibility of Australia. However, on the same day the plaintiff, according to his own evidence, told Mr Attwood that he was agreeable to being relieved temporarily from the FFG project until the matter was resolved. According to the evidence of Mr Attwood, there was a meeting, which appears to be the same meeting of which the plaintiff spoke, at which Mr Attwood said he reassured the plaintiff that the position in the Technical Training Section was a worthwhile job to which he could make a significant contribution, although moving from a technical and practical environment to a policy branch would involve a difficult transition. Further, according to Mr Attwood's evidence, he suggested to the plaintiff that if he was not happy, he could seek a transfer to another department in the Commonwealth and the Department of Defence would not stand in his way. Mr Attwood said that he told the plaintiff that the transfer was not intended to be a disciplinary measure and that he regarded the position to which the plaintiff was being transferred as neither trivial nor demeaning. I have no reason to reject Mr Attwood's evidence on these matters.

61. On 29 November, according to the evidence of the plaintiff, Mr Hickman told him that he was to transfer to the position in the DTT or otherwise face a disciplinary charge for failing to obey an instruction. Again, in the absence of evidence from Mr Hickman, I accept the plaintiff's evidence on this point.

62. The plaintiff said further that upon receiving this instruction he became distressed and he was sent home by Mr Attwood. There may be some confusion here and Mr Attwood was not asked to clarify the point. In any event, the plaintiff remained home for some days and upon his return to work he reported on 5 December 1977 to the Technical Training Section in Anzac Park. His immediate supervisor was Mr Reginald Wall who held the position of Director of Technical Training (DTT).

63. The plaintiff said that he found the work in the Department of Technical Training unfulfilling, that he took over from a Technical Officer Grade 2, who was not a professional engineer. In particular the plaintiff's case was that there was in fact no real position for the plaintiff to move into, and most importantly, it seems, there was no formal duty statement. On the other hand, Mr Attwood's evidence was clear that the position was a new one, not previously staffed, but required to be filled urgently in order to develop a training and educational policy for the newly instituted technical grade structures within the Department. Mr Attwood said that the decision had been made that an engineer should fill that position as it was concerned with education, training and qualifications of persons entering at a sub-professional level and it was necessary that someone with professional qualifications should advise on the development of policy.

64. It needs to be said at this point that at the time events came to a head with regard to the plaintiff's position in the FFG project in late November 1977, a certain number of changes had taken place within the Department of Defence which had still not been worked out in the management structure. These changes appear to have arisen out of a recognition that these management structures were not adequate to keep up with the demands of changes in defence technology. It was felt desirable that in order to accommodate technological development, the previous distinctions between service and civilian personnel needed to be reassessed, that the distinction between professional and the non-professional technical officers also needed reassessment, and that the Department needed to develop a policy for the continuing training of technical officers in the sub-professional grades. These changes all contributed, in my view to the situation in which the plaintiff believed he found himself. The plaintiff's perception was that he saw the reorganization as eroding the position of the professional engineer and promoting that of the service personnel and non-professional technical officers. In this respect his views were understandable and not without some justification. It is also understandable to some extent that he perceived that the position to which he was being moved in the Technical Training Section was not a position at all. However, the fact remains, in my view, that he was mistaken in that latter perception.

65. In a minute to the Minister assisting, on an unspecified date in December 1977, Mr Attwood reviewed the way in which the NTS Report had been instigated at the suggestion of AAESDA, one of the unions concerned and one representing technical officers. The minute gave an account of how the NTS Report as it ultimately issued was restricted in distribution because of concern that it departed from the terms of reference and because of criticism of management generally and designated individuals who had not been given the chance to put their case. At some time in early December (according to the plaintiff, 7 December) part of the NTS Report was published in the Canberra Times. Mr Attwood recommended to the Minister that the NTS Report be distributed to the staff associations concerned on a confidential basis and seeking their views. Mr Attwood's letter was in evidence in the hearing (exhibit Y) and it appears from the plaintiff's evidence that he was aware of its contents. The plaintiff saw it as part of a campaign to have him removed from the FFG but, in my view, this allegation is not made out. In fact I am unable to see any connection between Mr Attwood's minute to the Minister and the transfer of the plaintiff to the Technical Training Section.

66. I record here that the further particulars allege that on 9 December 1977 Mr Attwood thrust into the plaintiff's hand some notes in such a manner as to enable him to get a sample of the plaintiff's fingerprints. The notes were said to have been found in the parliamentary press gallery. The plaintiff said in cross-examination, "I perceived that to be the case". Mr Attwood denied trying to obtain the fingerprint sample and I accept his denial.

67. Mr P.G. Collins, then Chief Officer, wrote to the plaintiff a minute dated 29 December 1977 and headed "Application under Public Service Regulation 6". It contained the following:

"2. I accept that you were subject to some
stressful situations. I do not consider these to be as
serious as you have reported in your minute (of 16 November
1977). As you know, your superior officers in the FFGPD
Project have asked that your own conduct be investigated.
3. As a result of my investigations, and in the
light of your transfer to another area of the Department at
your own request, I do not consider that any further action
in this matter is warranted."

68. By this time the plaintiff had already commenced duties in the Technical Training Section. As the previous events had shown, he might have been expected to reply to any assertion that he considered to be inaccurate or incorrect. He did not reply to the assertion that the transfer had been at his own request.

69. This particular episode concluded on 3 January 1978 when Mr Collins, by then an Acting Deputy Secretary, wrote to Mr Hickman stating inter alia as follows:

"2. I believe that under the circumstances your
conclusions were sound and your recommended course of action
correct. I have signed the minutes to Mr Wodrow and
Captain Berlyn. In doing so, I appreciate that the
Department no doubt could justify stronger action against
Mr Wodrow. Unfortunately, the particular issue of Mr
Wodrow has become caught up with the wider issues of the NTS
Review and relations generally with the APEA, both at the
local and federal levels. The situation would only be
aggravated by any action against Mr Wodrow at this stage
when hopefully we are on the way to having a better
understanding with APEA and AAESDA.
3. I believe we would be justified, however, in
not letting Mr Wodrow again "get away" with a repetition of
some of the conduct he had displayed recently whilst engaged
on the FFG Project. If you have not already done so, his
new Divisional Head should be apprised of recent
developments and asked to ensure that Mr Wodrow performs
the duties for which he is employed in a manner consistent
with his obligations under the Public Service Act."

70. In the light of the rest of the evidence and my findings on the course of events to this stage, this minute accurately summarises the situation at the time it was written. The plaintiff's superior officers were far from pleased with his conduct over the FFG project and, at least after the plaintiff's minute of 16 November 1977, they were considering the possibility of disciplinary action. However, no decision was ever made to take disciplinary action, and ultimately it was decided that the transfer of the plaintiff from the FFG project to the Technical Training Section was a sufficient resolution of the problem. In my view, the transfer was not taken as a disciplinary measure, it was not taken with a view on the part of anybody to frustrate or ruin the plaintiff's career and it was not done in order to cause him mental distress. Whilst there may have been a certain artificiality in regarding the plaintiff's minute of 16 November 1977 as an application under Public Service Regulation 6, in my view, the transfer to the Technical Training Section was made after due consideration of the future of the FFG project, the requirements of the Technical Training Section, the suitability of the plaintiff to carry out the proposed tasks in that Section, the interests of and demands made by the unions, even though all this was combined with a wish (at least on the part of Mr Collins) that the plaintiff not be allowed to "get away" with the conduct which was seen as bringing matters to a head. What appears ominous in retrospect is the suggestion that the new Divisional Head be asked to ensure that the plaintiff conform with his obligations under the Public Service Act. This is a matter to which I shall return.

71. The suggestion that the plaintiff be moved out of the FFG project came originally from Captain Berlyn. It was accepted by Mr Hickman and passed on to Mr Attwood who eventually acted upon it and directed that the plaintiff commence duties in the Technical Training Section. In so acting none of these officers was, in my opinion, acting with intention to harm the plaintiff. Whilst malice on the part of one or more of those officers is the primary thrust of the plaintiff's case, there is the alternative claim in negligence. I do not conclude that there was any failure to take reasonable care for the safety of the plaintiff in transferring him to the Technical Training Section. It was not foreseeable, in my view, that that transfer would cause mental stress or harm of a psychological nature to the plaintiff, bearing in mind particularly that the plaintiff in the end assented to the transfer. In fact it was a reasonable expectation, in my view, that once relieved of the stresses of the FFG project and in particular the supervision of Commander Ingram and Captain Berlyn, the plaintiff would be in a less stressful situation and better able to carry out his duties. No suggestion was made on behalf of the plaintiff that reasonableness required Commander Ingram or Captain Berlyn to be removed from the positions they occupied nor that the FFG project and in particular the ISL Unit be reconstituted so that the plaintiff could continue to work in it or in the FFG project free of the supervision of one or both of those officers.

72. Finally, I do not think that reasonableness required the plaintiff to be removed by the Commonwealth from the Department of Defence to some other department and indeed no submission to that effect was put on his behalf.
7. 1978-1979: Proceedings in the Parliament

73. In the early part of 1978, according to the plaintiff's evidence, he was given demeaning duties such as photocopying. It appears that he made some efforts to find a position elsewhere in the Public Service and indeed outside it. The evidence is lacking in detail on that matter. He had a discussion with Mr Collins who was by then First Assistant Secretary, Industrial Division, on 13 June 1978 in which it appears that he made representations to be transferred somewhere else. Mr Collins wrote to him on 15 June 1978 confirming the discussion that had taken place and commenting as follows:

"As I explained to you, I am not able to be
particularly helpful at the present time but I have been
concerned to ensure that your viewpoint and interests are
brought to attention in the correct quarters. Perhaps it is
a matter of "keep trying" with applications for transfer not
necessarily confined to the Department."

74. The plaintiff replied to this letter with a letter of his own dated 30 June 1978, disagreeing to some extent with Mr Collins' record of the conversation and concluding with the following statement:

"I trust that if my position within the Department
is not satisfactorily resolved in regard to my transfer or
appointment to an engineering position, that I will be
afforded another interview to consider a further possible
course of action."

75. Nevertheless, unsatisfying as his job may have been, the plaintiff continued at it without remarkable incident and without loss of any time until about June 1978. From then until September he was consulting Dr Roantree for severe headaches and stomach and bowel problems. In October his condition continued with added hypertension. The work had progressed from photocopying to the organization of seminars for training departmental officers in the technical fields.

76. I have already mentioned the hoax telephone call on 20 July 1978 when somebody, apparently from within the Department, rang the plaintiff at his work and left a telephone number which turned out to be that of the Russian Embassy. It seems that if the plaintiff had telephoned the number then a security check on the plaintiff would have followed. It is understandable that this upset the plaintiff. However, in my view, it cannot be seen as an act of an employee of the defendant for which act the defendant should be held vicariously responsible. Such an act, in my view, is not to be regarded as within the scope of the employee's employment, but is a prank of a private nature. If there is a pattern of such conduct, an employer may be liable for breach of the personal duty of care, that is to say, for failing to prevent such conduct, or failing to protect an employee from such conduct. In the present case there was no such pattern and the defendant cannot be held liable for any damage that occurred as a result of the hoax call. Similar considerations apply to a later telephone call on 19 October 1978 to Mr Whiteford, in which the caller said that the plaintiff and he were to "stay away from the media". In any event, the plaintiff's report to his superiors about these matters were attended to to the extent that incoming calls to the plaintiff were redirected to a security officer. As I understand the plaintiff's claim, however, it extends to a complaint about the redirection of the calls upon the ground that it was an intrusion into his own privacy. An invasion of privacy does not give rise to a cause of action.

77. The plaintiff relies on events occurring in the second half of 1978 arising out of a parliamentary enquiry into defence procurement systems. Its terms of reference were not in evidence and when exactly it commenced is not clear. According to the plaintiff's evidence, as early as June 1977, the parliamentary enquiry raised the matter of the NTS Report and the suggestions in it of corruption and inefficiency in defence circles. Again, according to the evidence of the plaintiff, on 30 August 1977, the APEA Defence Group lodged a submission to the parliamentary enquiry which included a suggestion that the authors of the NTS Report give evidence to the enquiry. According to the evidence of the plaintiff, on 17 October 1978 he was informed, from what source is unknown, that there would be an attack upon him in Parliament and on the following day, 18 October 1978, the then Minister for Defence, Mr Killen, made a speech in Parliament which was critical of the authors of the NTS Report. The only evidence on those matters came from the plaintiff himself, but there is no reason to reject it. What caused those matters to come to a head at that stage is not the subject of evidence, but once the Minister made the speech, there was a flurry of events. On 19 October 1978 the Minister rang Mr Attwood as a result of which Mr Attwood rang the plaintiff at his home on the same day. The plaintiff was off work. It is not clear that this was because of his own condition (he claimed to be under stress at the time) or because of the fact that his wife was in hospital and that he needed to look after the children. According to Mr Attwood's evidence, he explained to the plaintiff that the Minister had declined his request to speak with the Minister. The plaintiff told him that he was under pressure from the press to say something about the Minister's statement in Parliament. Mr Attwood then said that he advised the plaintiff that he would be unwise to speak to the press about classified material or his official duties without seeking guidance from an appropriate source within the Department.

78. The plaintiff's version is that he spoke to the Minister's secretary earlier on 19 October and told him that he had been approached by the media because his name had appeared in public print. He told the Minister's secretary that he could not make any comments relating to what was reported in the press but that the truth was not being put and he wanted the truth put. At about the same time the plaintiff was speaking to members of the parliamentary opposition and to a journalist from the Australian newspaper. On 20 October 1978, according to the evidence of the plaintiff, articles appeared in the Daily Telegraph and the Australian, reporting what he had said. These articles are not in evidence and what they contained is really a matter of speculation.

79. Whatever be the difference between the account given by the plaintiff and Mr Attwood about the matters so far mentioned, it does not seem to me necessary to try to resolve any such differences. What is clear is that on 19 October 1978 Mr Attwood wrote to the plaintiff confirming the conversation earlier that day and his oral advice "that it would be unwise to comment publicly on matters connected with your official duties without first seeking guidance from your proper authority within the Department". The letter also noted the plaintiff was absent from official duty, that he had pressing domestic responsibilities and that his wife was ill.

80. On 19 October 1978 Mr Whiteford received a telephone call in which he was warned that he and the plaintiff should stay away from the media. The caller also made reference to Mr Whiteford having contacted ASIO "after the last conversation". It was after this conversation that Mr Whiteford said that when he tried to telephone the plaintiff at work, his calls were redirected to another number.

81. On 23 October 1978 Mr Attwood wrote to the plaintiff a formal request for explanation and seeking clarification of several matters relating to the appearance in the Daily Telegraph and the Australian of 20 October 1978 of articles which attributed to the plaintiff certain comments. The plaintiff was asked to answer, by close of business on 25 October 1978, the following questions:

"(a) Did you in fact discuss with the press the
matters referred to in the articles?
(b) If so, have your comments been accurately
reported in the articles?
(c) If you have been accurately reported, who made
"threats of personal violence"; in what circumstances, and
in what terms?"

82. The plaintiff was also asked to add any other comments he considered relevant. The plaintiff replied to the request by letter dated 26 October 1978. His letter reminded Mr Attwood of a provision made during the Whitlam Government for public servants to express opinions on matters other than policy in which they might be involved and that in the light of such provision:

"(a) I did discuss with a member of the media
matters referred to in the article.
(b) The comments reported were substantially correct.
(c) The reference to threats of personal violence
were made in details submitted in a separate minute to the
Department by Mr J. Whiteford."

83. The plaintiff asked for it to be borne in mind that he was under considerable stress at the time, his wife being in hospital and he himself being in receipt of medical advice. He concluded the letter by stressing that he did not intend to bring the Department or any member of it or the Minister into a position of embarrassment and that the sole purpose of his speaking to the media was to justify his integrity and credibility as a professional engineer and as a man for upholding the truth.

84. At some time, presumably subsequent to 23 October 1978 but before the end of November 1978, the plaintiff received what he called a summons to attend and give evidence at the Parliamentary enquiry.

85. On 9 November 1978 the plaintiff and Mr Whiteford attended a hearing of the parliamentary enquiry held at Parliament House. When they were leaving they encountered Mr Eltringham, a Deputy Secretary of Defence. Mr Eltringham, according to the evidence of both the plaintiff and Mr Whiteford, told the plaintiff that he did not want the plaintiff to say anything to the enquiry about the NTS Report or defence procurement matters and that it was not in the plaintiff's best interests to give evidence before the enquiry. The plaintiff responded by threatening defamation proceedings against Mr Eltringham and anybody else who spread false rumours about the plaintiff accepting bribes. The plaintiff and Mr Whiteford recorded the conversation in writing when they got to the car immediately afterwards. The record of conversation is not in evidence but I accept the evidence of the plaintiff and his witness. Mr Eltringham was not called.

86. On 29 November 1978, according to the evidence of the plaintiff, after being notified to attend the enquiry, Mr Wall told him that he was instructed by the Secretary of the Department, Sir Arthur Tange and Chief Officer Attwood to accept direction as to what he could or could not say before the enquiry. On the same day Mr McAllister, First Assistant Secretary, caused to be delivered to the plaintiff on behalf of the Prime Minister guidelines for the giving of evidence by public servants before parliamentary committees. The Guidelines and the Departmental Parliamentary Instruction to which they were attached are in evidence (exhibit E). The instruction is dated 2 November 1978 and it is reasonable to assume that it was prepared having in mind the particular enquiry being then conducted. The guidelines appear under the words Prime Minister in bold print and whether the reference is to the Prime Minister's Department or the Prime Minister himself is impossible to say. The document is, in my view, unremarkable and no inference is possible that it was directed at the plaintiff. On 30 November 1978 the plaintiff appeared before the Committee and presumably gave evidence. There is nothing before me about what evidence he gave and curiously this whole episode seems to have come to an end on that date. There is no evidence either that the plaintiff gave evidence in breach of the Prime Minister's guidelines or that the guidelines restricted him in his evidence to the enquiry. The plaintiff makes no complaint of any further repercussions, nor of any other relevant events until almost a year later.

87. There was evidence about other events in 1978 about which it is not necessary to go into detail. They did not in the end form any part of any positive submission on the part of Counsel for the plaintiff. They related to activities on the part of ASIO and the theft of tapes from Mr Whiteford. The evidence is too vague to permit of any finding on any fact of any particular relevance, and any facts that may be determined do not give rise to any relevant inferences.

88. Having outlined the evidence on these matters and the facts, as far as I can determine them, and bearing in mind the vagueness of the submission on behalf of the plaintiff as to the significance of the events surrounding the Minister's speech, the parliamentary enquiry, the anonymous telephone call and the interception of telephone calls in the latter half of 1978, I think it sufficient only to say that I do not see anything on the conduct of any of the Commonwealth officers concerned to persuade me that any of them conducted their activities as part of a conspiracy or with an intention to cause mental distress to the plaintiff, nor do I see that there was any failure to take reasonable care for the plaintiff's safety. A word is necessary in relation to the conversation with Mr Eltringham, as this was no doubt construed by the plaintiff as constituting some sort of threat to him to the effect that his career would be jeopardised if he gave evidence to the Parliamentary enquiry. This, in my view, placed the plaintiff in an invidious position in that there was a conflict in the demand placed upon him by the summons or request to attend the enquiry and the statement by Mr Eltringham that to give evidence on the NTS Review and associated matters, assuming that that was required by the enquiry, was not in the plaintiff's best interests. It is to be noted that this incident is the only one in which Mr Eltringham features in the whole of the events as they unfolded between 1976 and the end of 1979 and I am not convinced on the balance of probabilities that the remark was other than a statement by Mr Eltringham of his own personal beliefs. On the other hand, it was not unlikely that the plaintiff would construe it as in the nature of a threat and it is likely that it contributed to the stress for which the plaintiff had sought attention from Dr Roantree. Again, whilst I see nothing giving rise to liability on the part of the defendant during this period, the events are not insignificant insofar as they supplied further background for the next stage.
8. The Technical Training Section and the Draft Policy Paper

89. Although Mr Wall was later to complain in a minute dated 16 November 1979 (exhibit H) that in the early stages after his transfer the plaintiff's work performance was "poor by normal standards", there is little evidence, if any, to support this assertion. It may be that during the latter half of 1978 the plaintiff's work performance suffered because of the stress of the matters associated with the Parliamentary enquiry. His sick leave record shows that the plaintiff was losing time from work because of such stress. That is, however, not to say that his work performance as such suffered. In any event the time lost was only six days in June and five days at the end of October. In the first half of 1978 the plaintiff was making representations for a transfer out of the Technical Training Section, but this was during the time when he said that the work was particularly irksome because of its trivial nature. Mr Collins, who had the matter under review stated in his letter to the plaintiff dated 15 June 1978 that he had had "discussion with one or two officers concerned" with the plaintiff's employment and was concerned to ensure that the plaintiff's viewpoint and interests were brought to attention in the correct quarters. This letter is inconsistent, in my view, with an assessment that the plaintiff's work performance was below normal standards during this period.

90. The minute of Mr Wall dated 16 November 1979 in fact praised the plaintiff's work performance and enthusiasm "over recent months".

91. Mr Wall was the plaintiff's immediate supervisor who was himself responsible to the Director-General, Training and Education Policy (DGTEP), who in the first few months was a Brigadier McGreedy. That officer was replaced on 26 March 1979 by Brigadier Geoffrey Frederick Cohen. Brigadier Cohen gave evidence. There is no criticism of or disrespect to Brigadier Cohen in the observation that he was a man used to getting results. During his military career he had been "heavily involved" in the training of members of SAS and Commando units. He had also been Director of Plans, Army, which made him responsible for representing Army interests in defence planning and allocation of resources. Immediately before his appointment as DGTEP, Brigadier Cohen was the Commander of a Recruit Training Battalion.

92. Subject to remarks made below, I accept Brigadier Cohen as a convincing witness. There was nothing in his observation of the plaintiff's work performance, and nothing in what he was told by Mr Wall which led him to believe or ought to have led him to believe that the plaintiff needed to be treated differently from any other employee in the section. He said that he attended the seminars that the plaintiff conducted and that they were of a good standard. He said that when he took up his position the position occupied by the plaintiff bore the title Assistant Director, Continuation Technical Training, (ADCTT), that it was an established position and that the plaintiff had, according to the record, been acting in it for some time. He then spoke to the plaintiff about him being appointed to that position on a permanent basis. There is no evidence that Brigadier Cohen was told of or otherwise knew about the Collins minute of 3 January 1978 which accompanied the plaintiff's transfer to the Technical Training Section and the recommendation in it that the plaintiff's new Divisional Head be apprised of events in FFG and the need to ensure that the plaintiff carry out his duties as obliged by the Public Service Act. Brigadier Cohen also said that when he first arrived in the section it was not apparent to him that the plaintiff was under stress nor that he had problems which were a considerable burden to him. His view was that between March and November 1979 the plaintiff seemed "pretty fit". He did note, however, that in early April 1979 the plaintiff had complained of his telephone being tapped. As a result there had been an investigation done by a defence security agency which failed to find any evidence of phone tapping. It seems that Brigadier Cohen considered this matter of no significance until a later stage.

93. In September 1979, according to Brigadier Cohen, the plaintiff finished organizing the programme of training courses. Brigadier Cohen had in mind at that stage the development of an overall programme for the continuous training of technical officers within the Department. He said in evidence that he spoke to the plaintiff in the presence of Mr Wall and asked the plaintiff to develop a "draft paper" on this subject and that about a month later having not learned of any progress in the matter he met the plaintiff again, this time in the presence of a Mr Gallinger in the absence of Mr Wall. Brigadier Cohen's evidence was that he gave instructions to the plaintiff in the September meeting that "the paper was not to be issued until it had gone through the process" and that it was to be discussed between the plaintiff and Mr Wall initially and then, if necessary, between himself, the plaintiff and Mr Wall.

94. In cross-examination Brigadier Cohen identified the nature of the task which he gave to the plaintiff. He said that the plaintiff was expected to be aware not of details but of areas of specific technical concern and the significance of such matters to the Department and that he wanted to use the plaintiff's expertise to identify those areas more precisely and to provide arguments to support the proper allocation of resources to develop ongoing training programmes. He did not say, however, that these matters were precisely spelled out to the plaintiff in the September or October meetings.

95. According to the plaintiff's evidence, he was directed to produce the paper within six weeks from the initial meeting on 28 September 1979. Brigadier Cohen did not contradict that part of the plaintiff's evidence. The plaintiff denied that he had received any instruction or direction that the discussion paper could not be distributed without the permission of Brigadier Cohen or Mr Wall. In this respect it is significant that Brigadier Cohen's evidence was not that the plaintiff had been given an express prohibition in those terms, but rather that such a prohibition was to be spelled out of the instruction that the draft paper was to be the subject of discussions initially between the plaintiff and Mr Wall and, if necessary, between Brigadier Cohen, the plaintiff and Mr Wall.

96. The plaintiff complied with the direction that the draft paper be completed by 8 November 1979. According to his evidence, prior to that date he showed a "first draft" to Mr Wall. This appears to have been on 5 November 1979. On 8 and 9 November 1979 Mr Wall went interstate, and it was whilst he was absent that the plaintiff caused the draft paper to be distributed to the various persons whom he said he had consulted during its preparation.

97. Mr Wall became aware of the draft paper and its circulation presumably soon after his return to Canberra on or after 9 November. Presumably also he spoke to Brigadier Cohen of the distribution. Brigadier Cohen said in his evidence simply that when he heard in November from Mr Gallinger (an Engineer Class 4 who worked under Mr Wall) that the paper had been distributed, he considered the matter carefully over the following weekend and on the Monday issued a direction to Mr Wall to take action to have the paper withdrawn. He said that he came to the conclusion that that course should be adopted although he had not read the paper. He said that he gave that direction to Mr Wall because the distribution of the paper was contrary to all instructions that had been issued to the plaintiff during the discussion in the September meeting. Brigadier Cohen said further that he could see no legitimate reason for the draft paper to be sent to the various recipients, and that although he had expected the plaintiff to consult with other people during the course of its preparation, he did not expect that discussion to extend to the level of the Chief Defence Scientist.

98. On 14 November 1979 Mr Wall issued a minute headed "Draft Policy Paper" directed to the plaintiff and instructed him as follows:

"1. Reference A (draft paper) was circulated
without proper authority.
2. Would you please issue a minute to all addressees today asking
for the return of the Draft Policy Paper.
3. Would you also please observe the directions given in references
B and C (DTT Internal Procedure Manual and General Manual). In
all future correspondence and, in particular, those sections
dealing with the signing of correspondence."

99. Mr Wall's minute evoked an angry response from the plaintiff which was expressed in his minute to Mr Wall dated the same day and a copy of which was marked for the attention of Brigadier Cohen. The plaintiff's minute began with an objection to the paper being described as a "draft policy", the plaintiff maintaining that it was a "discussion paper" from which policy would derive (I note that the paper itself (exhibit U) bears the description "Draft Policy Paper"). The plaintiff went on to make the point that as Mr Wall had not commented on the draft given to him on 5 November, he assumed that the document met with Mr Wall's approval. He said further that the paper was distributed during Mr Wall's absence in Sydney because of a "recommendation proposing a meeting on the matters raised during the week commencing 13 Dec. 1979". The plaintiff also took the point that as his authority to sign correspondence was apparently under challenge, then logically he had no authority to sign any request for a recall. The plaintiff's minute finished with a somewhat obscure warning that the recall of the paper "may generate unnecessary speculation as to the reason".

100. Mr Wall responded to the plaintiff's minute the following day, 15 November 1979 with "a verbal instruction" confirmed by yet another minute instructing the plaintiff to "carry out the instructions to recall the paper immediately", and informing the plaintiff that "failure to carry out this instruction immediately will be regarded as a breach of discipline for which I will recommend disciplinary action". The plaintiff complied with the instruction and sent a minute, which he signed, to the various addressees stating that he had been directed to withdraw "the above discussion paper" and requesting its return.

101. On 16 November 1979 Mr Wall delivered to Brigadier Cohen a minute, a copy of which was delivered to the plaintiff the same day. It was in terms which should be set out in full.

"1. Problems have arisen with Mr Wodrow that I
believe should be placed on record.
2. Mr Wodrow was transferred to this Branch in
late 1977 when problems arose with his employment in Navy
Office. These problems are fairly well known and are, no
doubt, documented elsewhere in the Department.
3. As a result of the circumstances surrounding his transfer, Mr
Wodrow joined the Branch in a condition of considerable stress
and with a high sense of injustice. I accepted Mr Wodrow into
the Section and gave considerable importance to establishing an
environment in which he could overcome his problems and
re-establish himself in the Department.
4. In the early stages of his transfer Mr Wodrow's problems were a
considerable burden to him and his work performance at this time
was poor by normal standards.
5. However, over time, Mr Wodrow's performance
steadily improved and he ceased constant reference to his
problems with the Department. Over recent months he has
been responsible for the successful development and conduct
of a number of courses and seminars in high level technology
and he approached his tasks with commitment and enthusiasm.
6. Based on Mr Wodrow's steady improvement from a poor beginning,
and on his performance over recent months, I formed the opinion
that he could be considered for higher duties as Engineer Class
4 for short periods in the future. With recent events I now
believe my assessment to be wrong.
7. You are aware that Mr Wodrow has been assigned the important
task of preparing a policy paper on continuing technology
training in the Department. In this task Mr Wodrow's
instructions were quite clear.
a. He was to prepare a draft paper for discussion with me.
b. When we were both satisfied with the paper it
was to be submitted to you for consideration and for
approval to circulate for comment.
c. Only after your approval was obtained was the
paper to be circulated for comment.
8. During the preparation of the paper I gave Mr
Wodrow guidance on matters of policy and we had a number of
discussions on what the paper should contain. However, I
indicated clearly that I would await his final draft before
considering the paper in full detail.
9. I subsequently obtained a first draft of the
paper that he was reworking to check some points on another
matter that I had in hand. I later told him that while I
had not examined the paper in detail, I had observed some
material that I believed should be changed before
submissions to you.
10. On the 8 and 9 of November 1979 I was on duty
interstate. On my return I was informed that Mr Wodrow had
circulated the paper on 8 November, for comment to CDS, CSS,
FASDIMP, FASDF, CAFTS, CNTS, FASCS, GMDCS, and DGJC. This
action was contrary to my directions and contrary to well
established Branch and Departmental practice.
11. I then verbally asked Mr Wodrow to recall the
paper for proper consideration within the Branch. As a
result of the ensuing discussion I was obliged to issue the
direction in writing and because of his subsequent response
to re-affirm that direction in writing a second time - this
time with an accompanying warning.
12. I am now concerned that problems similar to
those that arose in Navy Office could reoccur in this
Branch. Consequently I have counselled Mr Wodrow in the
following terms.
a. I have attempted to give him every opportunity
to re-establish himself within the Department.
b. His steady improvement in performance has now been negated by
his present unsatisfactory attitude and lack of discipline.
c. Should his present behaviour continue I will
have no choice but to recommend disciplinary action.
d. I would not be justified in recommending him for higher
duties as Engineer Class 4 until he has demonstrated a
considerable improvement in attitude and discipline. I have in
mind a minimum period of at least one year of good performance.
e. If he accepts my counselling and acts upon it
the matters raised here need not go outside of the Branch."

102. I place considerable importance on the fact that Mr Wall did not give evidence and there was no explanation for his absence. There are many assertions in his minute of 16 November 1979 which I do not think are made out on the evidence. As I have already remarked, I am not convinced that the plaintiff's work performance was "poor by normal standards" in the early stages of his time in the Technical Training Section. Whilst I am not prepared to dismiss Mr Wall's assertion that he "accepted Mr Wodrow into the section" and in effect went out of his way to try to assist the plaintiff to overcome his problems, there is no positive evidence to this effect. I do not make a finding one way or the other on this issue, but merely note the likelihood that knowing how difficult the plaintiff had proved to be to his immediate superiors whilst he was in the FFG project, it would have taken an officer of extraordinary generosity to actually welcome the plaintiff into another section of the Department.

103. Despite the assertion in the minute of 16 November 1979 and the evidence of Brigadier Cohen, I am not convinced that at the time the plaintiff was set to work on the draft paper his instructions were "quite clear" as to the discussions that were to take place first with Mr Wall and later with Brigadier Cohen, if necessary, before the paper was circulated for comment. Whilst I have said I found Brigadier Cohen in most respects to be a credible witness, I think that on this particular issue his memory, if not his understanding, may have been influenced by the assertions made by Mr Wall, particularly in the minute of 16 November 1979. If it had been so clear that the plaintiff was in breach of a precise instruction not to circulate the paper until after the discussions contemplated, then I do not understand why Brigadier Cohen needed to think so long and hard before instructing Mr Wall to direct the plaintiff to seek its return. On the other hand, I do not see why there was any need on the part of the plaintiff to circulate the draft paper once it had been prepared within the six week period as required and according to the plaintiff, it received Mr Wall's approval. Whilst I am not satisfied there was any express prohibition on its circulation by the plaintiff, I am unable to understand why the plaintiff needed to circulate the draft at that stage. I could understand the circulation if it had been prior to 8 November so that any comments could be made by the recipients to the plaintiff before it was in a draft suitable to be handed by the plaintiff to Mr Wall. Accordingly, I can understand the dismay on the part of both Mr Wall and Brigadier Cohen at the unauthorised distribution. It was not, in my view, part of the plaintiff's task to circulate the document for comment once he had delivered the draft to Mr Wall. Both Brigadier Cohen and Mr Wall were, in my view, quite entitled to instruct the plaintiff to seek the return of the document. The decision to give such an instruction was not unreasonable. How the decision was carried out is another matter.

104. It is unfortunate that Mr Wall's minute of 14 November 1979 was couched in somewhat terse terms. The result was a concerted effort on the part of the plaintiff to justify what he had done. Anyone who knew the plaintiff could have expected that. The plaintiff's reaction led in turn to the minute of Mr Wall of 16 November 1979 in which he threatened disciplinary action if there was a failure to carry out his instruction immediately. The situation had reverted to one very similar to that which had occurred almost exactly two years previously following the issue of the Ingram minute. This time, however, there was no Captain Berlyn in charge. Despite the suspicion by the plaintiff of the worst on the part of Captain Berlyn, he had, in my view, tried to combine conciliation and firmness and, as I have already found, never at any stage threatened disciplinary action against the plaintiff. On the other hand, the threat by Mr Wall was express and direct. It was followed by his minute of 16 November 1979 which, as I have said, contains allegations and statements of fact which I find not to be unjustified.

105. Once he gave the direction for the recall of the draft paper, Brigadier Cohen appears to have played no active role in the matter at all. Again, his conduct is to be contrasted with the active although unsuccessful role carried out by Captain Berlyn. Brigadier Cohen's service background appears to have made it difficult, if not impossible, for him to understand the tender susceptibilities of the plaintiff. Furthermore, unlike Mr Wall, he had not been put in the picture as to the plaintiff's background. Mr Wall was on notice of what the effect on the plaintiff was likely to be in the event of a direct threat of disciplinary action. Put shortly, Mr Wall, acting reasonably, would not have acted so precipitately in threatening disciplinary conduct against the plaintiff and making the allegations he made against him in his minute of 16 November 1979. The circumstances, in my view, did not require an immediate threat of disciplinary action. Something less was called for in the case of this particular individual, the plaintiff. Between them, Mr Wall and Brigadier Cohen might have acted less directly with regard to the recall of the draft paper, but I am not, in all the circumstances, prepared to find that what they did in this regard was unreasonable. However, the subsequent action on the part of Mr Wall has to be read in the light of the recall of the paper. From the point of view of causation, it is probable that the marginal factor in bringing about the plaintiff's decompensation culminating in his breakdown on 22 November 1979 were the minutes of 15 and 16 November 1979 emanating from Mr Wall. In all the circumstances I find that the issuing of those minutes was a failure to take reasonable care for the safety of the plaintiff, in that other steps were reasonably open to the defendant and it was reasonably foreseeable that the steps that were in fact taken were likely to result in the sort of harm from which the plaintiff actually came to suffer. For that reason so briefly stated, the plaintiff is entitled to judgment in the claim for negligence. However, I do not find that anything on the part of Brigadier Cohen or Mr Wall in the events which ground liability in negligence were intended to cause harm to the plaintiff and the plaintiff fails altogether on this alternative cause of action. To complete my findings, I should state that establishing negligence on the part of the defendant means that the plaintiff should have judgment in his favour on the cause of action in contract.
9. Medical Evidence: Foreseeability

106. There was a considerable amount of medical evidence in the case presented on behalf of both parties which went to the issues of foreseeability, causation and damages. As counsel for the plaintiff pointed out, there is a difference on the issue of foreseeability between a claim for breach of contract and a claim in negligence. A claim for breach of contract is concerned rather with what the parties by their agreement had in contemplation or are taken to have had in contemplation; a claim in negligence is concerned with what a person in the position of one party only, the defendant, should have reasonably foreseen as a result of that party's conduct. There is a similar distinction between the approach to be taken in identifying and quantifying the damage which in fact occurred as a result of the defendant's breach of contract, in contrast to the result of a breach of a tortious duty to take reasonable care.

107. There is, however, nothing in the present case on the facts as I find them which leads to a conclusion that the distinctive approaches lead to different results. The contract of employment was not such that the duty to take care for the safety of the plaintiff pursuant to the contract was wider than the duty to take reasonable care owed in tort, nor that the parties contemplated liability for a wider range of consequences than that within the foresight of a reasonable employer in the position of the defendant.

108. Put broadly, the medical evidence is relied upon by the parties to support one of two conflicting propositions. For the plaintiff it is contended that the plaintiff's susceptibility to emotional stress and ultimately chronic anxiety neurosis became known to the defendant by the time he began to lose time from work in mid-1977, but the susceptibility became increasingly obvious thereafter and that it was the conduct of the defendant in the various episodes and incidents, as they were made known to or assumed by the doctors, that were responsible for the various periods away from work from mid-1977 and eventually the breakdown in November 1979. For the defendant, it was contended that the plaintiff suffered from a prior personality disorder which would not in the early stages from 1977 onwards have been reasonably apparent to the defendant and which by late 1979 and thereafter would have caused the plaintiff to suffer in any event a breakdown similar to the one which he in fact suffered.

109. The medical evidence is not of great assistance as expert opinion evidence. First, the case is such that it appears to have been very difficult for the doctors to separate out their medical opinions from their views as to the justice of the plaintiff's claims about being harassed and the validity of his allegations about corruption and the like within the ranks of the Commonwealth Service. In particular, Dr Knox, who continues to treat the plaintiff, expresses his views much in the way of the plaintiff's advocate. This is perfectly understandable and my comments are not intended as personal or professional criticism of the doctor. As a therapist, Dr Knox sees that the plaintiff's problems are not likely to be resolved until his complaints and accusations are found to be justified and he is vindicated by a proper award of damages. I expect also that in the role of therapist, Dr Knox is obliged to assume or does assume that the plaintiff's interpretation of the events is correct. Dr. Lennane appears to adopt a similar approach. She casts the plaintiff in the role of a "whistle blower", that is to say, one concerned to disclose corruption and wrongdoing in an organization but who thereby becomes victim of the wrongdoer. She quotes statistics from a study in the United States which concludes that a high proportion of "whistle blowers" face retaliation by way of demotion or dismissal from the organization and are regarded as in need of psychiatric treatment. Curiously her source of information is an address by Mr McMillan, a Lecturer in the Faculty of Law, Australian National University. Dr Lennane's report of 21 March 1991 illustrates the limitations of the use of this sort of evidence. It does not address the possibility that the accusations of corruption may not be justified or that some whistle-blowers may in fact be misguided or even obsessed or deluded. She ascribes the plaintiff's problem in the end to the fact that he is "a typical product" of one brought up in an orphanage in the "very egalitarian" culture of Scotland. Whilst these are interesting and positive views, they do not, in my view, derive from the professional qualifications and expertise of the psychiatrist. On the other hand, the doctors who saw the plaintiff on behalf of the defendant, view his accusations of corruption with considerable scepticism and even disbelief. That attitude clearly colours their conclusions about the relationship between the plaintiff's employment and his condition. Dr Milton, for example, in marked contrast to the plaintiff's doctors, found him evasive and that it was "difficult to get a straight answer out of him" with regard to the details of how it was that he saw himself as a victim. Dr Goldrick, in his report of 16 March 1989 states that he found it "extremely difficult to obtain any answers to questions about his present condition" because "he attempted to direct all the questions towards his mistreatment in the Public Service". Dr Goldrick concluded that the plaintiff's severe and continuing personality disorder manifests itself in ideas of persecution and renders him unavailable to logical persuasion and therefore unfit for employment. Dr Saboisky prefaced his conclusions by writing that:

"The central question for me as a psychiatrist is
whether or not Mr Wodrow was unfairly treated, whether his
personality was such that he recurrently found himself in
conflict with superiors, or whether there was a combination
of the two."

110. I interpolate here that the issue of unfair treatment, whether a central question or not, was not a matter for a psychiatrist at all, a factor which Dr Saboisky seems to have immediately realised, for he continues:

".... the veracity of his claims cannot really be
tested out by seeing him alone, and the truth of his claims
would really take the resources of a Tribunal to sort out."

111. It is hardly necessary for me to add that a court hearing an action for personal injuries in 1991 is not the tribunal to sort out charges of corruption in the Department of Defence in the late 1970's.

112. I have listened to the medical evidence and read and re-read the transcript and reports. I do not intend to review the whole of that material. It is clear that the doctors are on the whole agreed that the plaintiff does not suffer and has never suffered from mental illness. He is not and was not paranoid or deluded. However, his background and personality was such that from the time of his arrival in Australia events which in other persons might have been passed over were particularly stressful to him and began to develop in him a suspicion that persons in the Department where he was working and elsewhere in Government were increasingly determined to silence him from criticising what he saw as injustices and corrupt practices and to that end were prepared to harass him, cause him mental distress and even destroy his career. The plaintiff came to Australia having overcome the handicaps of his childhood and successfully commencing a career in engineering in Scotland with a prestigious employer. When his career there appeared to be threatened by the collapse of the company, he took the opportunity to look elsewhere and, rightly or wrongly, was convinced that he had unique qualifications and experience to contribute to the solution of problems in Australia which could not be resolved by anybody in this country. When he arrived, his expectations were quickly dashed. For the first but not the last time he considered that there was not really a job waiting for him. He considered that the work given to him could not be carried out properly because of inefficient planning and insufficient allocations of resources. He began to suspect corruption, particularly in the person of Captain McMillan, who later tried to stand in the way of the plaintiff's appointment to the FFG Project. The plaintiff became increasingly susceptible to stress and saw himself more and more as a victim of a conspiracy to silence him.

113. Amongst all the material of a medical nature, I found the reports of Dr Milton most helpful, although in the end I do not accept all his conclusions. Despite the plaintiff's resistance, Dr Milton obtained from him a wealth of detail about the plaintiff's history including his childhood, early years, history in the Department of Defence and subsequently. I regard that history which is mostly confirmed in the reports of the other doctors as of particular importance. It is not in the nature of hearsay so long as one regards it as evidence of what the plaintiff himself thought and perceived and how he reacted to events otherwise established on the evidence. It is significant that in the complaints made to Dr Milton were allegations of corruption in the Court, and this is a matter I deal with separately below. It is indicative that by the end of 1990 the plaintiff's personality problems did indeed "constitute a severe affliction" and that his feelings of persecution and frustration, often manifested in signs of physical illness, had become so strong that they rendered him unfit for employment. I accept that there were underlying personal factors, whether they are correctly described as "paranoid traits" or otherwise, which probably would have developed to the same extent and in the same way at some later stage, even without the events of November 1979 for which I think the defendant is liable.

114. Dr Saboisky describes the plaintiff's personality in these terms with which I would agree:

"During the time of his work related difficulties
however I believe he displayed personality traits which
would have made it difficult for his employee (sic.) to deal
with. In particular,
1. a tendency to be easily slighted and quick to
take offence. For example, his response to Commander
Ingram's personal memo of 27.9.1977.
2. the emphasis on always being correct and moral.
3. a readiness to counter-attack when any threat is perceived.
4. the expectation of trickery or harm from his co-workers.
5. the blaming of all his problems onto others.
6. a tendency to distortion and over-reaction."
Dr Saboisky concludes that :
".... once the process had begun there was really no
turning back. Mr Wodrow interpreted most of what happened
to him in a persecutory fashion, and became increasingly
obsessed with the injustice of his treatment."

115. I have taken the medical evidence into account before reaching the conclusions expressed earlier in this judgment, namely that it was not reasonably foreseeable to the defendant prior to the end of 1977 that a threat of disciplinary action against the plaintiff, whether or not the circumstances called for it, was likely to provoke a severe stress reaction on the part of the plaintiff. However, when Mr Wall made the threat of disciplinary action against the plaintiff in his memo of 15 November 1979, the defendant was in the state of knowledge that a severe stress reaction was likely to follow. That was all the more likely in November 1979 than in November 1977, because on the facts as I have found them, there was no actual threat of such disciplinary action by Captain Berlyn, as the plaintiff perceived, whereas in November 1979 the threat by Mr Wall was actual, in writing and followed other conduct on the part of Mr Wall, which the plaintiff saw as intimidatory. Furthermore, the first threat of disciplinary action on 14 November 1979 itself was followed by Mr Wall's minute of 16 November 1979. The later minute asserted facts with which the plaintiff genuinely disagreed, a condemnation of the plaintiff's work performance, which had never been made previously, a repetition of the threat to take disciplinary action, and an unequivocal statement that the plaintiff was, in effect, being placed on probation for a minimum period of a year before he could be considered for recommendation for higher duties as Engineer Class 4. The emphasis on "considerable improvement in attitude and discipline" echoed the bitter complaints that the plaintiff had made two years previously about the conflict between the "professional engineering ethic" and the "general monologue approach of the service mind, laying down the law of command".
10. Corruption on the part of the Registrar and Solicitors

116. The writ was issued on 14 December 1983, claiming damages "for personal injuries caused by the negligence of the defendant and the harassment by servants and agents of the defendant of the plaintiff". An appearance was entered on 19 January 1984. A statement of claim was not filed until 13 November 1985. Correspondence took place over further and better particulars of the statement of claim, and both sides gave notice of intention to proceed, the plaintiff giving notice on 22 December 1986 and the defendant on 7 January 1987. There was then some sort of contest between the then plaintiff's solicitors and the defendant's solicitors. On 30 January 1987 a solicitor representing the defendant attended the Registry for the purpose of filing the defence. He noticed a praecipe for interlocutory judgment dated 27 January 1987 on the file together with a form of interlocutory judgment marked "settled". The document in its engrossed form had not at that stage been filed. The solicitor immediately filed the defence and proceeded to the offices of the plaintiff's solicitors where he delivered a copy of the defence at 12 noon. On the same day, and presumably subsequent to the filing of the defence, the plaintiff's solicitors lodged and filed an engrossed form of interlocutory judgment. The document lodged and filed appears to have the date figure 27 obliterated and the figure 30 overwritten in ballpoint pen. The alteration bears the seal of the Court. On the index of documents in the Court file cover there are similar alterations as to the date figure. On 29 June 1988 (sic) the defendant took out a notice of motion to have the interlocutory judgment set aside. On 4 July 1988 the application came before the Registrar. The Court record indicates that both Mr Hynes, a solicitor from the firm then representing the plaintiff, and the plaintiff, Mr Wodrow, appeared to oppose the defendant's application. The application was stood over to a later date, but an order was made that the plaintiff's then solicitors be deemed to have ceased to act for him. On 21 July 1988 a notice of change of the plaintiff's solicitors was filed. On 25 July 1988 the interlocutory judgment was set aside by consent (the plaintiff being represented through new solicitors) and a number of other orders were made as on a summons for directions.

117. These matters were not all the subject of direct evidence in the trial and counsel made no submissions about them. Nevertheless they are the subject of Court record and they were the subject of complaint by the plaintiff to Dr Milton. According to Dr Milton's report of 11 December 1990, the plaintiff told him that the change of the date on the form of judgment indicated corruption in the Court Registry and the failure of his then solicitors to maintain opposition to the setting aside of the default judgment indicated collusion between the solicitors and the Commonwealth Government. Dr Milton thought that the plaintiff's suspicion on these matters was consistent with an obsessive belief that he had been harassed and victimized whilst in the service of the Commonwealth and that his attitude was further evidence of an underlying personality problem. Dr Milton was not cross-examined on these matters and I accept that the plaintiff spoke to him along the lines set out in his report.

118. An allegation of corruption on the part of Court officials and solicitors is not a matter that may be ignored by the Court and for that reason I have had recourse to the Court record as well as to the evidence. Having regard to both the evidence and the Court record I do not accept that the plaintiff's expressed belief that there was corruption on the part of the Registrar or in the Registry was justified. It appears that the defendant's solicitor filed a praecipe for default judgment on 27 January 1987, but that judgment was not entered until 30 January 1988. In the absence of the Registrar, judgment was entered over the hand of the acting Deputy Registrar. The delay is consistent with the procedure required by Rules of Court. Order 42 Rule 2 provides that a draft of the judgment is to be lodged with the Registrar and, after approval by the Registrar, judgment is entered upon the filing of the judgment engrossed in accordance with the approved draft. Judgment is dated and takes effect as of the day on which the engrossed documents (and not the draft documents) are filed for the purpose of such entry. The provisions of the Rule and the history of the conduct of the matter on Mr Wodrow's behalf made it virtually impossible that upon application and the proper exercise of judicial discretion, the default judgment entered on the same day as the defence was filed, would be allowed to stand. The plaintiff's allegation made to Dr Milton that there was something corrupt on the part of the Registrar, or some Registry official, is not sustained. Furthermore, the plaintiff has not made out his allegation to Dr Milton that his previous solicitors were in league with the Government in order to prejudice his claim.

119. Nevertheless, there was a factual basis to arouse the plaintiff's suspicion and, whilst I think that the plaintiff's attitude as expressed to Dr Milton is not inconsistent with an underlying personality disorder, it hardly contributes in a positive way to that diagnosis.
11. Defence under Limitation Act

120. The defendant pleaded the defence that the plaintiff's claim was statute barred. At the time of the issue of the writ the Imperial Act 7 James 1 Ch.12 was in force in the Territory. The defence defeats a claim for damages whether in tort or contract where the proceedings are not commenced within six years of the date on which the cause of action arises. In an action for negligence time runs from the sustaining of damage, in an action in contract from the time of the breach.

121. According to my findings the defendant is liable to the plaintiff in negligence and breach of contract for its conduct on 14 and 16 November 1979. The breach occurred and the sustaining of damage commenced on those days. The writ was issued on 14 December 1983 and hence was not out of time. The defence that the plaintiff's claim is statute barred fails.
12. Causation and Damages

122. I do not conclude that the conduct of the defendant in November 1979 was such as to render the plaintiff permanently unfit for employment. His history since then needs only brief recounting. There were symptoms of severe physical and emotional breakdown for at least six weeks with recurrences during January 1980. After an examination by the Commonwealth Medical Officer on 18 February 1980, the plaintiff was referred to Dr R.A. McDonald, a consultant psychiatrist in Canberra, who discounted the suggestion that the plaintiff was paranoid and confirmed that he was suffering from mental stress. On 24 July 1980 the plaintiff was compulsorily retired from the Public Service. On 21 February 1981 there was a determination by the Commissioner for Commonwealth Employees Compensation that the Commonwealth was liable for the plaintiff's continuing total disability on the ground of a stress-induced work-related illness.

123. In September 1981 the plaintiff moved to Queensland on the advice it seems of Dr Roantree. This was done in order to get away from the previously stressful environment of Canberra. However, whilst in Queensland, the plaintiff still experienced headaches, dizziness, symptoms of hyperventilation and sensations of "depersonalization" for which he was treated by a Dr Wilson. There is no evidence or report from Dr Wilson, but the reference to this is in the review by Dr Roantree.

124. In March 1983 the plaintiff returned to Canberra for the purpose of further medical examination. He was again, according to the report of Dr Roantree, admitted to Canberra Hospital for two days and then to a resident specialist with "psychosomatic symptoms" which were evidenced by shivering and episodic rigors, neck swelling, severe headaches, bowel problems and abdominal pains. The plaintiff continued to reside in Canberra and on 17 July 1984 was referred by Dr Roantree to Dr Merrifield, a psychiatrist. The plaintiff told Dr Merrifield that there were moves being made to get him back into the Public Service in some demeaning position which he saw as a way of destroying him and which had made him feel "very very pressed indeed". At about the same time the plaintiff was referred to Dr Cassar, but that doctor was unable to shed any real light on the nature of the plaintiff's condition or its prognosis. According to the evidence, the next time he was seen for anything relevant was by Dr Barclay on 3 March 1988 on the reference of his solicitors. Dr Barclay gives a comprehensive history and a list of symptoms, but apart from relating the plaintiff's condition to his work, Dr Barclay does not offer a view as to the effect exactly of the incidents of November 1979 except to say that by that stage the plaintiff "had marked anxiety and depressive symptoms". It may be noted that by the time Dr Barclay saw the plaintiff, the plaintiff's marriage had broken up. The plaintiff's wife left him in May 1986. Dr Barclay states that the marriage "eventually broke down because of the constant stress and his wife's inability to tolerate the insecurity of their position".

125. According to the plaintiff's own evidence, he interviewed Ministers in 1983 with a view to obtaining a position on the personal staff of one or other of them. He was unsuccessful. Although this issue was not actively explored at the hearing, it could not be expected that his failure to gain employment in this area would have assisted in his recovery, although he himself considered that he was well enough to apply for the positions at the time of application.

126. I do not think that this is the sort of case in which the events of November 1979 should be seen as constituting some sort of catastrophe which imposes liability upon the defendant for everything that happened thereafter to render or keep the plaintiff unfit for employment. In my view, the underlying personality factors as they existed up until November 1979 cannot be ignored. I think it likely that at some stage the results of the incidents in November 1979 merged with or were displaced by personality factors for which the defendant is not liable in damages, although they may have been aggravated by events between 1977 and 1978, events in which there was no negligence on the part of the defendant. I think that it is likely that the result of the events in November 1979 were negligible by some time towards the end of 1983. I therefore propose to award damages upon the basis that the plaintiff was rendered unfit for his employment for a period of four years following 16 November 1979, and that over the same period he suffered the other consequences which resound in damages such as pain and suffering, loss of enjoyment of life and the like. It is somewhat difficult to assess the value of these latter heads of damages. There is very little evidence relating to the period in question, particularly from the medical side.

127. It is unnecessary for me to review events that have occurred since the end of 1983 except briefly. On 27 July 1984 Dr Roantree wrote to the Commissioner for Superannuation and reported that the plaintiff's condition had not improved but deteriorated further, with severe bouts of depression in recent months. Treatment with drugs and anti-depressant medication had proved only marginally successful. Dr Roantree noted also that the plaintiff had commenced litigation against the Commonwealth "in order to bring the matter to a satisfactory conclusion" and that the stress of the litigation would exacerbate what was already a chronic condition. This expression of view on the part of Dr Roantree was written in response it seems to a request from the Commissioner of Superannuation made on 27 June 1984 and it is likely that the very request by the Commissioner brought added stress to the plaintiff.

128. At the hearing it was agreed on the part of counsel for both parties that should I find for the plaintiff, I should make my findings known and the parties might then submit further evidence of an arithmetical nature in order to enable the quantum of damages, other than general damages for pain and suffering and loss of enjoyment of life to be quantified. In view of that agreement and although it is unfortunate that the matter has to be further adjourned after such a long period of time, I adjourn the further hearing to enable the further material to be put before me. It may be done by way of written submission and if that does not permit me to reach a final conclusion, the matter will have to be relisted for further hearing. I invite the parties to try to seek agreement, if possible, on these matters. I indicate that I would award the sum of $25,000 for general damages as indicated, including a component for the loss of a chance of promotion. In the circumstances of the case and having regard to the inordinate delay in bringing the matter before the Court, my provisional view is that the plaintiff should not be awarded interest on the general damages component (I expect that it is not sought on any other component). I think that there should be an award of a lump sum in lieu of interest under s.53A of the ACT Supreme Court Act, but again if the parties wish, they can have the opportunity to present written submissions on these matters. Any written submissions on any of the matters to which I have referred are to be received by my Associate no later than 19 December next.

129. In the circumstances, the case is stood over generally with liberty to restore on two days notice.