Loiterton v Pd Mulligan Pty Limited & anor [2000] ACTSC 36 (12 May 2000)

Last Updated: 17 October 2000

Loiterton v PD Mulligan Pty Limited & anor

[2000] ACTSC 36 12 May (2000)

CATCHWORDS

NEGLIGENCE - Work accident - Plaintiff assaulted by co-worker - Safe system of work - Incidents of assault not uncommon - General awareness by management - Breach of duty by employer to provide a safe place of work - Precautions a reasonable employer would expect to take in the circumstances - Current community standards.

DAMAGES - Assessment - Personal injury - Work accident - Plaintiff assaulted by co-worker - Plaintiff hit and fell, striking his lower back - Post traumatic stress disorder - Ongoing depressive disorder - Subsequent motor vehicle accident aggravating back condition and depression - Diminished, but not total, loss of earning capacity.

PRACTICE AND PROCEDURE-Applications to re open after closing submissions but before judgement whether interests of justice served.

Nikolowshi v Ridge Consolidated Pty Ltd (1994) 116 FLR192

NSW v NWEISER (1991) 28 NSWLR 471

Smith v New South Wales Bar Association [1992] HCA 36; (1992) 66 ALJR 605

Hudson v Ridge Manufacturing Co Ltd [1957] 2 Q.B. 348

Antioniak v The Commonwealth [1962] 4 F.L.R. 454

In Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR

Public Transport Corporation v Sartori [1996] VICSC 33; [1997] 1 VR 168)

Chomentowski v Red Garter Restaurant (1970) 92 WN (NSW) 1070

Jacobson v Nike Canada Ltd (1996) 133 DLR (4^th) 377

Hall v A&A Shiban (1989) 85 ALR 503

Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49

Fry v McGufficke [1998] 1499 FCA

No. SC 516 of 1996

Coram: Master T Connolly

Supreme Court of the ACT

Date: 12 May 2000

IN THE SUPREME COURT OF THE )

) No. SC 516 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: BRIAN LOITERTON

Plaintiff

AND: PD MULLIGAN PTY LIMITED

ACN 000 135 222

First Defendant

AND: GRAHAM McMINN

Second Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 12 May 2000

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $108,126.00

2. The defendant pay the plaintiffs costs.

1. This is a claim for damages for personal injuries arising from a series of assaults that the plaintiff claims occurred while he was in the employ of the defendant as a slaughterman at the Canberra Abattoirs, a business operated by the defendant, in the early part of 1994. The plaintiff alleges that the defendant was in breach of its duty to provide a safe system of work by failing to take adequate measures to deter or prevent incidents of violence occurring between workers on the company's premises. The action was originally brought against the defendant company and a Mr McMinn, who is alleged to have repeatedly assaulted the plaintiff, but the action against Mr McMinn was discontinued. The claim was originally brought against the defendant company alleging both a breach of the duty of care owed to the plaintiff to provide a safe system of work, that is to say a breach of a primary duty owed by the defendant company, and as an action to hold the defendant company vicariously liable for the actions of Mr McMinn. This aspect of the claim was not proceeded with.

2. The matter proceeded before me pursuant to an order of Chief Justice Miles dated 3^rd September 1999 and was initially heard on 13^th 14^th October 1999.

3. On 18^th October 1999 I received a letter from the solicitors for the defendant seeking to re open this matter. This application was heard on the 3^rd November 1999.

4. Counsel agree that I had a discretion to re open a matter after the hearing but before judgement is delivered and that the basic test is whether the interests of justice would best be served by re opening the case. In Nikolowshi v Ridge Consolidated Pty Ltd (1994) 116 FLR192 Higgins J said "The correct principle to be applied in situations where, before final judgement, a party wishes to re-open that party's case is simply whether the interests of justice are better served by allowing or rejecting the application" His Honour had regard to the principles discussed by the High Court in Smith v New South Wales Bar Association [1992] HCA 36; (1992) 66 ALJR 605 and the New South Wales Court of Appeal in Urban Transport Authority of NSW v NWEISER (1991) 28 NSWLR 471.

5. The evidence that the defendant proposed to lead on a re opening were observations and a video tape from a neighbour of the plaintiff which it was said, showed the plaintiff engaged in constructing a retaining wall in his back yard.

6. Counsel for the defendant submitted that the new material would considerably assist the court in relation to any assessment of the plaintiffs incapacity and that it would be unfair for the defendant not to have this information taken into account. Counsel for the plaintiff argued that the case should not be re opened, on the basis that the activities said to have been observed and filmed were within the scope of the plaintiff's admitted levels of activities as described by Dr Griffiths.

7. I formed the view that the interests of justice would be better served by allowing the matter to re open. The matter re opened on 1^st May 2000 to see the video.

8. The plaintiff was born in August 1958, and left school at the age of 14 years and 9 months. He cannot read, and said that he is "not real good' with numbers. He commenced work as an abattoir worker at Cootamundra, and has worked as a meat worker for many years, with some alternative labouring type employment. He said that he had "never been on the dole". He had been working for the defendant company at its plant at Cowra before transferring to the Canberra Abattoirs, situated at Oaks Estate in the Australian Capital Territory, in 1984. Apart from a couple of years working at an abattoir a Merimbula he had worked there continuously until the incidents of early 1994.

9. The plaintiff said that he had witnessed a number of fights at the abattoirs in the years prior to January 1994. He was able to identify a number of these incidents by reference to the people involved, but was unable to be precise as to the dates.

10. He says that Mr Graham McMinn was a co-worker on the slaughter floor at the abattoir in January 1994. He knew him as "Macca", and had not had any arguments with him. They were both working on the mutton chain, and Mr Loiterton was involved in forequartering the carcasses. He says that Mr McMinn, who was also working on this line, abused him and told him that he was not doing his job correctly. The plaintiff says that he disputed this, and that Mr McMinn then

"...just come up and punched me in the eye".

11. He says that this blow knocked him out, and he came to on the floor in the sheep's blood. He says that when he came to he had pain in the eye where he had been hit, and

"Real sharp stabbing pain in my back when I'd fell".

He says that at the point where he was assaulted there was a concrete slab, and

"...my tail bone hit the corner of the concrete".

12. He says that after the assault he was taken into the office by Mr Williams, the production manager, and admonished, but then sent back to work. There was another incident at a Canberra nightclub where he says Mr McMinn threatened him, and then on or about 1 February 1994 he was walking with a Mr Gill towards the carpark at the abattoir. He says

"...this McMinn was beside me, threatening my life, `I'm going to kill you. I am going to punch your head off your shoulders'. I walked up to the car park with this man. He took several swings at me with my bag over my shoulder. As I was putting my bag down he hit me again and I retaliated."

13. This fight was brought to the attention of management, and the next morning both Mr Loiterton and Mr McMinn were dismissed, but were told that they could re apply for any vacant job after three months.

14. Mr Loiterton's version of the fight on the slaughter floor is broadly supported by the evidence of Mr Gill, who was a co-worker at the time. He says that he heard yelling, and then looked and

"I didn't actually see him punch Brian Loiterton, but he was standing over him with clenched fists and that was just after Brian hit the floor, went down on the floor."

15. Mrs Loiterton gave evidence that he came home in late January with a black eye, and reported to her what had happened.

16. The defendant called Mr Sidney Williams, who had been the production manager at the time, Mr Stanley Carr, who had been foreman at the time, and Mr Warren Brown, who had been abattoir manager at the time. Mr Carr said that he did not witness any fight, but that Mr Brown told him that there had been an incident on the slaughter room floor

"...where Mr Loiterton had been hit with-by Mr McMinn."

17. As a result he separated the two workers, by placing them at opposite ends of the mutton chain. Mr Williams said that he did not see any incident, and the first he heard about it was when Mr Brown asked him about it. He agreed that the two workers were separated. Mr Williams said that he `definitely' did not see a black eye. Mr Brown said that Mr Loiterton told him of an incident, and as a result he inquired of Mr Williams and Mr Carr. He said that he directed that they be separated.

18. I am satisfied on the balance of probabilities that the incident did occur as described by Mr Loiterton. It does not, however, follow necessarily from this that liability can be established, as an employer is not necessarily liable for a single incident of violence at the workplace. What has been alleged here is that the Canberra Abattoir was an inherently violent workplace, and that incidents of assaults and fights were commonplace. This version was supported by the evidence of the plaintiff, his brother Mr Ian Loiterton, and co-workers Mr Gill and Mr Jackson, who said that he was himself involved in an incident in 1993. The picture painted by these witnesses was of a workplace where violence was not uncommon, and where no adequate systems were in place to reduce or prevent it. They agreed that dismissal was an accepted sanction for fighting, and that they were aware of this happening in some cases.

19. The evidence in chief of the three witnesses for the defendant was that the workplace was not violent. They denied a number of the alleged instances referred to by the plaintiff's witnesses. They acknowledged one incident, which resulted in dismissal, and also acknowledged one incident where a man hit a woman at the abattoir, but this was regarded as

"...more of a domestic dispute than a workplace dispute"

and no dismissal followed.

20. Mr Williams said that he was aware of

"...one incident I know of that happened in the locker room, but when they saw me coming they locked me out."

Mr Williams was shown some extracts from a work diary that he maintained. These showed a reference to the carpark incident, and the subsequent dismissal of the plaintiff and Mr McMinn. Mr Williams said that he maintained this diary in his own hand, but the document had never been discovered, and was not available in Court. Only three photocopied pages were available. In cross examination Mr Williams agreed that the diary showed on 2 February a reference to warning Mr Gill and a Mr Whiting about a verbal argument, and on 3 February referred to a report that a Mr Tuilawa had punched Mr Gill. He had not previously referred to this and was asked

"Yes, well, that was a fight you were aware of, wasn't it?"

He replied

"I did not see it, I did not have- I was only told by another slaughter person. Now, I wasn't told by any foreman."

21. The diary extracts identified by Mr Williams were in the end not tendered, but I note that, although only a couple of pages were in court, and they were there for the purpose of referring to the dismissal on 1 February, he acknowledged that on the next day there was reference to a verbal argument, and on 3 February reference to a report of an assault.

22. Mr Carr in his cross examination was asked if he had heard of other incidents of violence. He said:

"You probably might hear of it three or four days down the line, second hand or something, and you wouldn't take any notice of it because.........Well, if you heard of a bit of an argument or something like that, you wouldn't take any notice of it because it's just a daily thing. You can get that anywhere."

23. Mr Brown also maintained that the plant was not violent, and that he had knowledge of only a limited number of incidents. A passage of his cross examination, however, goes to establish a level of awareness of a general climate of violence. He was asked, in reference to Mr Williams:

"Did he ever mention any other incident of fighting that he had heard of whilst he was working as a production manager?---Not seriously, no.

Well, what about non-seriously, did he ever mention incidents of fighting or assaults, to you?---Well, yes, pushing and shoving, yes, that goes on, yes. Or went on. Going...

Pushing and shoving?---Going to and from the smoko rooms and things like that, but I mean...

Pushing and shoving went on. That was within your knowledge?---Playful, yes.

Playful?---Yes

And you know that the men who worked as slaughtermen wore belts with knives?---Not on these occasions, they were going to or from their smoko room.

Did it occur to you that pushing and shoving could have led to someone being injured?---Yes.

What did you do about it?---I guess what I'm saying, you're talking pushing and shoving, I mean its more playful.

Look, the question I asked you, Mr Brown, was what did you do in response to the danger of pushing and shoving?---Well, if it was a report on pushing and shoving seriously, I would act and discipline them or dismiss one or the other.

How many times over the years you worked there, did you become aware of there being pushing and shoving-leaving aside whether it was serious pushing and shoving?---Not that frequently.

Once a month?---That would be it, yes."

24. Mr Brown also was asked why, if dismissal was the sanction for fighting, he had not dismissed either or both of Mr Loiterton and Mr McMinn following the January fight on the slaughter room floor. He said

"Because the man was, you know, I mean, it was one on one. One said he hit him and one said he didn't."

25. I take this evidence with Mr Williams reference to the February 3 incident in his diary, which he dismissed as having only been told by another slaughterman, and no foreman seeing it, and Mr Carr's reference to the daily thing of hearing of "arguments or something" to establish an environment where there was a general awareness by management of the potential for violence on the workplace floor, and where reports, albeit often second hand, of such violence were not uncommon. Where the fight was admitted, or where a foreman witnessed the incident, it seems that dismissal was a real option, and one that had been exercised by management. But I find that no action was taken of these lower levels of reports of incidents.

26. It is the plaintiff's case that the defendant employer, by failing to take appropriate action to deter and prevent acts of violence in the workplace, was in breach of the duty to provide a safe place of work for the plaintiff, and accordingly the defendant is liable for the consequences of its breach of duty.

27. Counsel for the plaintiff acknowledged that this was an unusual claim, and was unable to point to an authority where liability had been found in such circumstances. He pointed to Hudson v Ridge Manufacturing Co Ltd [1957] 2 Q.B. 348 where an employee who was injured in an assault by a habitually badly behaved co employee succeeded in a claim that the employer was under a duty to maintain appropriate discipline. In that case Streatfield J said (at 350):

"This is an unusual case, because the particular form of lack of care by the employers alleged is that they failed to maintain discipline and to take proper steps to put an end to this skylarking which might lead to injury at some time in the future. As it seems to me, the matter is covered not by authority so much as principle. It is the duty of employers, for the safety of their employees, to have reasonably safe plant and machinery. It is their duty to have premises which are similarly reasonably safe. It is their duty to have a reasonably safe system of work. It is their duty to employ reasonably competent fellow workmen. All of those duties exist at common law for the safety of the workmen, and if, for instance, it is found that a piece of plant or part of the premises is not reasonably safe, it is the duty of the employers to cure it, to make it safe and to remove that source of danger. In the same way, if the system of working is found, in practice, to be beset with dangers, it is the duty of the employers to evolve a reasonably safe system of working so as to obviate those dangers, and upon principle it seems to me that if, in fact, a fellow workman is not merely incompetent but, by his habitual conduct, is likely to prove a source of danger to his fellow employees, a duty lies fairly and squarely on the employers to remove that source of danger."

28. In that case the evidence established that the employer was aware of repeated acts of dangerous horseplay by the particular assailant. There is no evidence, and indeed it is not alleged, that Mr McMinn was known to be violent before the assault on the plaintiff. Counsel for the defendant points to Antioniak v The Commonwealth [1962] 4 F.L.R. 454 where Dunphy J in this Court found that the employer should not be held liable for an isolated assault. He referred to the above passage from Hudson v Ridge Manufacturing Co Ltd and said (at 459):

"But this is a matter of degree. It was conceded in Hudson's case that if an employer has reason to anticipate misconduct by an employee dangerous to other employees, the employer would be under a duty to the other employees to take reasonable steps to prevent harm arising from it, and that, if reprimands are disregarded the duty ultimately involves dismissal of the vicious or mischievous. If however, a workman, for the first time, indicates himself as possibly a potential danger, an employer should not, except in extraordinary circumstances, be held responsible for subsequent injury to a fellow employee if he did not go to the ultimate remedy immediately upon the first report. An isolated act would need to be extremely grave and of such a nature that repetition was a probability to justify an employer taking the extreme step of dismissal. This is particularly so under modern industrial conditions and in a highly unionized country where the old concepts of an employer's unfettered right to hire and fire have been restricted by changing thoughts and attitudes and by practical restrictions of an industrial character."

29. The present case is not put on the basis of a duty to have dismissed Mr McMinn because of a known proclivity for violence on his part, but rather on the basis of a duty to have put in place a system to discourage and prevent violence in the workplace given a knowledge by management of regular acts of violence within the workforce generally. It seems to me that, while there is no direct authority for this proposition, it can also be addressed by recourse to general principles of tortious liability concerning an employer's duty to provide a safe place of work and a safe system of work.

30. The common law duty on an employer is well known. In Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 Mason, Wilson and Dawson JJ said

"It is as accurate today as it was thirty years ago to say that the duty `is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury': Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J".

Their Honours went on to observe (at 308) that

"...what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so, because in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards."

31. While Their Honours in Bankstown Foundry Pty Ltd v Braistina cautioned that

"It is unhelpful to attempt to arrive at conclusions about what changing standards of reasonable care require merely by comparing the decisions in different cases"

(at 308), it seems to me that, while no reported case can be produced which holds that an employer who is aware of regular violence in a workplace is under a duty to take steps to prevent further outbreaks, such a conclusion is consistent with principle.

32. An employer has been held liable for an attack on an employee by a third party in circumstances where it knew that intruders in a carpark were a problem (Public Transport Corporation v Sartori [1996] VICSC 33; [1997] 1 VR 168), and where by sending an employee to bank the proceeds it was foreseeable that the employee might be robbed (Chomentowski v Red Garter Restaurant (1970) 92 WN (NSW) 1070). Novel situations where a duty of care will be found will continue to arise - in Jacobson v Nike Canada Ltd (1996) 133 DLR (4^th) 377 the employer was held liable in circumstances where an employee was injured after the employer supplied employees with alcohol, and failed to monitor consumption and allowed the workers to drive home. Modern employers are expected to be vigilant in educating and training their workforce on matters of occupational health and safety, as well as issues of sexual harassment (see the extensive discussion of sexual harassment in the workplace in Hall v A&A Shiban (1989) 85 ALR 503). To say that no duty of care arises in circumstances where an employer is aware of a pattern of violence, and chooses to ignore such matters seems to me quite inconsistent with principle. There is ample authority for the proposition that an employer who tolerates horseplay will be liable for the consequences (e.g. Petrou v Htzigeorgiou (unreported, Court of Appeal New South Wales 7 December 1990).

33. I find that the defendant was in breach of its duty of care to the plaintiff, and that the defendant is accordingly liable for the foreseeable consequences of the assault on the plaintiff on the killing floor, and also in the carpark. I will now turn to those consequences.

The measure of damages.

34. The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, `in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

35. In the present case the plaintiff has established that the defendant was in breach of its duty of care in permitting a work environment to develop where violence was tolerated, and I have accordingly held the defendant liable for the consequences of the assaults.

36. After the carpark assault the plaintiff was told that he must leave, but that after three months he could re apply for a position. He in fact went to Queensland and found alternative employment. His assailant re applied for a position at the Canberra Abattoir after three months, and was given a vacant position. The plaintiff returned to Canberra some time in mid 1994, and says that he applied for a position unsuccessfully at the abattoir. He feels that he was not treated fairly, but I have no reason to disbelieve the evidence of the management witnesses who said that, when the plaintiff applied, there was no vacant position available. He did obtain some casual work, which he says was not satisfactory. He was dismissed from this casual position for consuming food on an area of the works where food was prohibited. I am satisfied that he was capable of working until dismissed for disciplinary reasons. He continued to feel that he was being poorly treated at the abattoir. He obtained some casual work felling trees in the Tallagranda State Forest in early 1995, but apart from this has not worked since.

37. There was another incident involving an assault on the plaintiff by Mr McMinn at a Canberra nightclub. It is not entirely clear from the evidence of the plaintiff whether this occurred before or after their employment was terminated, but in any event this is not an event for which the defendant can be held to be liable. The plaintiff says that he was headbutted by Mr McMinn, and stunned, and sustained an injury to the bridge of his nose. He says that he went and cleaned himself up at a toilet, and that when he returned police were present, but he made no complaint to them.

38. The first presentation of any complaint to a medical practitioner by the plaintiff was in November 1994, when he complained to his general practitioner of lower back pain. He was then referred to a psychiatrist, Dr Tym, who concluded that the assaults at work and his loss of employment had resulted in a significant mental disorder of severe depressive episode.

39. The plaintiff says that he was in constant back pain from the time of the first assault, but thought that it was going to get better. When cross examined about the delay in seeing a doctor, he said

"...the simple reason why is because I let it go thinking it was going to get better and it never, and when I couldn't handle the pain anymore that's when I done something about it."

40. He says that the work he did in Queensland after he was sacked was light work, involving holding a concrete shoot while pouring concrete for drains. He says he was able to do this work, but was in pain. He obtained a disability pension in late 1994, and remains on this pension.

41. A further traumatic incident occurred in some time in 1997 when he was involved in a motor vehicle accident in which his car was, it seems, deliberately rammed by an ex boarder in the family home. This resulted in an aggravation of his lumbar spine pain, and also it seems to an aggravation in his psychological condition.

42. The plaintiff has been on various medications for his depressive illness, and his memory and recall is clearly poor. At various points in his evidence it was difficult to place events in a clear chronological order. He did not give a precise date for the 1997 motor vehicle accident, but told his psychiatrist that it occurred in December 1997. It is however referred to by his general practitioner in a November 1997 report as having occurred

"...three of four months ago."

43. Mr Loiterton said in his evidence in chief that the motor vehicle accident

"made my back a lot sorer".

44. His general practitioner, in his report of 12 November 1997, formed the view that the plaintiff was then suffering

"...persistent facet joint end muscular-soft tissue injuries of the lumbar spine, and injuries to the right sacro iliac joint."

He said that since the motor vehicle accident

"...the lower back pain has become more constant but similar in nature to the pre accident symptoms."

He said the incapacitation was mild, and

"...purely in relation to his back problem, Mr Loiterton would be able to perform light manual work (with essential work breaks e.g. bar work) and part time clerical duties (although for other reasons, Mr Loiterton is not suitable for vocational retraining)."

His conclusion was that

"My diagnosis is an exacerbation of an existing lumbosacral joint and soft tissue injury (1994) as a result of the motor vehicle accident in early 1997."

45. The plaintiff provided a report from Dr Griffith, a consultant surgeon, dated 4 August 1988. He expressed the view that the plaintiff sustained a probable compression fracture at L1 in the original assault, which would have soundly united within three months but in a deformed position, giving rise to irritative neuropathy at the left L1 nerve root, and musculo ligamentous sprain in the soft tissues of the lumbar region. He expressed the view that in the 1997 motor vehicle accident the plaintiff suffered

"...major acceleration/deceleration injury with 1. Aggravation of musculo ligamentous sprain, lumbar region, 2. Aggravation of probable post traumatic compression fracture L1 with left sided L1 irritation neuropathy."

46. No medical evidence was tendered by the defendant. I am thus left in a difficult position in regard to assessing the plaintiff's damages, as I have two reports, from a general practitioner and a surgeon, which both acknowledge that the original injury sustained to the plaintiff's lumbar spine was aggravated by the 1997 motor vehicle accident, but which do not seek to attribute responsibility in any detail. Dr Griffiths reported a significant increase in back symptoms following the motor vehicle accident, and this is consistent with the plaintiff's evidence. I am satisfied that the plaintiff has had problems with his lower back since the assault in January 1994, but that these problems have become significantly greater following the 1997 motor vehicle accident. In this action I can only assess compensation for disabilities attributable to the workplace assaults.

47. An even greater difficulty confronts me in seeking to assess the plaintiff's damages in respect of the psychological sequelae to the compensable assaults. There is evidence from Dr Tym, a consultant psychiatrist that at the time of his first consultation in November 1994 the plaintiff satisfied the diagnostic criteria for the mental disorder of moderate depressive episode. At the time of his first report of August 1995 he had raised this diagnosis to severe depressive episode, and had been treating the plaintiff weekly with significant medications. In a subsequent report of July 1997 Dr Tym expressed the view that the plaintiff had suffered post traumatic stress disorder following the 1994 assaults. In this report he recommended that the plaintiff undertake eye movement desensitisation and reprocessing therapy to treat this condition, and in his report of August 1999 he reported that following this therapy his post traumatic stress disorder had been resolved and had not returned. He gave the date of resolution as July 1997.

48. Dr Tym in his reports refers only to the trauma of January 1994, which I take to refer to the two assaults the subject of this claim. Yet there is clear evidence that there was also an assault at a nightclub in 1994, and Dr Griffiths refers in his report to this incident as involving an aggravation of post traumatic stress disorder. In relation to the 1997 incident, which is ignored by Dr Tym, Dr Griffiths referred to this as involving a major aggravation of post traumatic stress disorder.

49. The defendant chose to produce no medical evidence in this hearing, and so I am left with a most unsatisfactory state of the evidence in seeking to attribute responsibility for the plaintiff's present condition between the workplace assaults for which the present defendant is responsible, and the non workplace assault and motor vehicle accident (which on the evidence involved a deliberate ramming of the plaintiff's car by a person known to him and with whom he had been in a dispute concerning his wife). While Dr Griffiths states that these incidents contributed to the plaintiff's psychological condition, Dr Tym makes no reference in his reports to them. In his cross examination he said that the post traumatic stress disorder would have begun from the first assault, which is work related and the subject of this claim, but he also said, when asked to describe "the assault" said

"...there were three recollections that he had, which they were extremely vivid and that he could remember them in great detail. It was when the assailant was walking towards him, and it's that particular picture which came back. There was a second when the assailant walked up to him in a pub, I think, it was the assailant and there was a third abnormal form of memory recall when he was in the carpark and his assailant said `I'm going to kill you'."

I am satisfied from this that Dr Tym has included the assault at the nightclub in his original diagnosis.

50. Dr Tym also in cross examination indicated an awareness of the 1997 incident, which it seems occurred before his diagnosis. He said he knew something about

"...something about a car and he got terrified to think somebody was going to come."

Dr Tym did however say that this incident

"...didn't surface as a problem in the treatment of his post traumatic stress disorder."

51. He also acknowledged that, after the resolution of the post traumatic stress disorder in mid 1997 the plaintiff's ongoing depressive condition would be contributed to by his back pain (which I find to be aggravated significantly by the 1997 accident) as well as

"...ongoing worries about litigation, continuing problems about his housing, his marital situation, his parents and there are a whole series of other stresses in his life which would be contributing to the continuation of depression now."

52. These factors cannot all be put down to the conduct of the defendant in failing to take adequate steps to discourage and prevent violence at the workplace in 1994. It is also apparent that the plaintiff's functional illiteracy, which significantly affects his general employability, is a factor in his present predicament.

53. I am not satisfied that all of the plaintiff's present psychiatric condition is attributable solely to the assaults the subject of this action, but again I am not assisted by any expert evidence in seeking to attribute responsibility.

54. This much seems to have been, very properly, conceded by counsel for the plaintiff, who said that he conceded that the

"...January 1997 motor vehicle accident represented an exacerbation of the pre existing injuries that he had, somewhere the Court is going to have to discern exactly what proportion of the overall damage and loss of earning capacity flows from that January 1997 accident."

55. Counsel for the defendant submitted that the defendant could not be held responsible for the first assault, and indeed acknowledged that the first assault on the medical evidence caused the back problems and post traumatic stress disorder, but he also submitted that there have been many other aggravating factors. I am against the defendant in holding the defendant responsible for the first assault.

56. I find, on all of the evidence and doing the best that I can given the lack of specific assistance from the experts in regard to the attributability, that the plaintiff suffered an injury to his lower back in the assault on the abattoir floor as he fell and struck his lower back on the concrete block, as described by Dr Griffiths. I find that his ongoing symptoms amount to persistent soft tissue injuries. I find that this injury was aggravated in the motor vehicle accident, and that his present symptoms are thus partly attributable only to the original accident.

57. I find that his physical injuries do not totally incapacitate him. I accept Dr Griffiths' opinion that

"Mr Loiterton was and remains not totally incapacitated physically. Following the injuries outlined, he was demonstrably able to undertake duties as a slaughterman when such duties were available, and in fact had done so on a number of occasions....Mr Loiterton is currently capable of performing some physical exertion, ideally avoiding repeated bending and stooping whilst lifting weights, which will probably exacerbate his low back pain."

This is broadly consistent with his general practitioner's assessment of his back disability. This is also consistent with video film, taken in October 1999 and shown on 1^st May 2000, which showed the plaintiff helping his neighbour McLloyd erect a retaining wall Mr Loiterton was observed using a shovel, mattock and plane, and mixing and pouring concrete in a wheelbarrow. Mr Lloyd said that, after this activity the plaintiff had a sore back, and had to lie down at the after work barbecue.

58. I accept that the first assault caused the onset of post traumatic stress disorder, which lasted until it was successfully resolved in July 1997 by Dr Tym, and that the plaintiff now suffers from an ongoing depressive illness. I find however that the post traumatic stress disorder was also contributed to by the nightclub assault and the motor vehicle accident, and that his ongoing depressive illness is also only partly attributable to the conduct of the defendant.

59. In relation to general damages, taking into account the contributions to his present conditions arising from the workplace assaults, I award the sum of $45,000.00. I attribute half of this to past loss, recognising that the plaintiff will have continuing low back problems, significantly contributed to by the 1997 motor vehicle accident, but that his post traumatic stress disorder present from the time of the first assault although contributed to by other events, was resolved in 1997. This amounts to interest in the sum of $2,626.00. Had all of his present conditions been attributable to the defendant's tortious conduct a significantly higher award of general damages would have been appropriate. I do not think that it is appropriate, on the evidence, to attempt an arithmetic breakdown of damages in this case between an appropriate global sum and his present award. A similar difficulty will confront a court should his 1997 motor vehicle accident result in a claim for damages coming before the court. I award the sum of $47626 in respect of general damage.

60. In relation to his economic loss, the plaintiff particularised this as a total wage loss claim in the sum of $479 from the date he ceased employment with the defendant. I am not satisfied that this is made out, and the plaintiff's counsel acknowledged that, given the state of the medical evidence and the contribution to his condition from other events, a buffer approach is more appropriate. I am satisfied that, bearing in mind all of the circumstances referred to by the Full Federal Court in Fry v McGufficke [1998] 1499 FCA (26 November 1998), this is an appropriate case for a global approach to economic loss.

61. The plaintiff continued to work after he was terminated by the defendant, as a concrete pourer in Queensland, and again as an abattoir worker on odd casual shifts, and he did seek full time employment with the defendant. He found some work as a tree feller in 1995. All of the medical evidence supports the proposition that he is capable of continuing physical work, though not to the same extent as before the accident. This is consistent with the video material.

62. I am satisfied that the plaintiff had been a hard worker all of his life. He gave evidence that he had always been able to work, and had never been on the dole. He has not worked now since 1995. I accept that his post traumatic stress disorder was a significant problem, although this is not all attributable to the defendant. Since mid 1997 this has been resolved, although he has ongoing psychological problems, again only partly attributable to the workplace assaults.

63. His general practitioner in a report of September 1999 states

"Mr Loiterton, physically, is capable of light duties without heavy lifting, repetitive bending or prolonged standing. He could do this for 29 hours or so each week. Unfortunately, Brian's emotional status and self esteem in relation to work make him somewhat unemployable currently. There is a significant degree of passivity in Brian's persona and this tends to consolidate and prolong his psychological impairment."

64. Dr Tym falls short of a specific assessment that the plaintiff's employment prospects. He states in his August 1999 report that the plaintiff's ongoing recurrent moderate post traumatic depressive episodes are attributable to

"...the psychological stress of the social and economic consequences of his initial unemployability and his subsequent unemployment."

This seems a careful choice of words, and distinguishes between an initial unemployability and subsequent unemployment, where factors such as his illiteracy are a significant factor. Dr Griffiths states that

"Mr Loiterton is currently physically capable of performing some physical exertion, ideally avoiding repeated bending and stooping whilst lifting weights, which will probably exacerbate his low back pain. The loss of confidence with his post traumatic stress disorder is the principal factor of major importance currently producing his global picture of incapacity."

The specialist, Dr Tym, of course has stated that the post traumatic stress disorder has itself been resolved.

65. I find that the plaintiff has at all times retained a physical capacity for work, although he is limited in respect of heavier duties. He has worked for most of his life as a meat worker, and this type of employment is no longer available to him, partly as a result of the defendant's conduct, partly as a result of the nightclub assault, and partly as a result of the 1997 accident. I must also accept the evidence that he persisted in this work after the assault, and also worked as a timber cutter and concrete pourer, and also that the type of work that he undertook is no longer available in the Canberra region following the closure of the abattoir in 1997. I find that the plaintiff's psychological condition of post traumatic stress disorder was a major disability in the years to 1997 and that this was also partly attributable to the defendant's conduct, and also partly attributable to the nightclub assault and the 1997 accident.

66. I award a buffer for past economic loss of $35,000, inclusive of interest, and award a buffer for future economic loss, taking into account all of the factors outlined above, of $20,000.

67. Past out of pocket expenses were shown by evidence from the Health Insurance Commission to amount to $3,955.05 for professional health services. Evidence was given as to the medications he has taken over the years, but no real figure was provided as to their cost. I must again attempt here to come up with an amount which fairly compensates the plaintiff for the affects of the tortious acts, noting that his health problems have also been contributed to by the conduct of others. I would award the sum of $3,500 for past out of pocket expenses, of which $2,500 I would attribute to the professional health services, thus involving a finding that the balance of the professional health services are not attributable to this defendant's conduct. In respect of future out of pocket expenses, I award a global buffer of $2,000.

68. This amounts to an award of $108,126.00.which I consider to be appropriate in all the circumstances and award, with costs.

I certify that this and the twenty six (26) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date:12 may 2000

Counsel for the Plaintiff: Mr C Everson

Instructing Solicitors: Pappas, J - Attorney

Counsel for the First Defendant: Mr J Brewster

Instructing Solicitors: Goodwins as agents for Garden & Montgomerie

Dates of hearing: 13 and 14 September 1999

18^th October 1999.

Date of judgment: 12^th May 2000