Tomisevic v Menzies Wagga Southern Pty Ltd Acn 074 091 704 [2005] NSWCA 178 (25 May 2005)

CITATION :	TOMISEVIC v. MENZIES WAGGA SOUTHERN PTY. LTD. ACN 074 091 704 [2005] NSWCA 178
HEARING DATE(S) :	31/03/2005
JUDGMENT DATE :	25 May 2005

JUDGMENT OF :	Mason P at 1; Beazley JA at 2; Pearlman AJA at 41
DECISION :	Appeal dismissed with costs.
CATCHWORDS :	NEGLIGENCE - liability of employer - psychiatric injury - alleged ingestion of faecal material by employee during course of employment - whether employer negligent for failing to provide employee with protective apparel - special susceptibility or vulnerability to psychiatric injury - reasonable foreseeability of psychiatric injury due to perceived ingestion of faecal material - APPEAL - findings of fact - error - no basis to disturb trial judge's findings
CASES CITED :	Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Andar Transport Pty Limited v Brambles Limited (2994) [2004] HCA 28; 78 ALJR 907 Mount Isa Mines v Pusey [1970] HCA 60; (1970) 125 CLR 383 O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225 O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 Van Der Sluice v Display Craft Pty Limited [2002] NSWCA 204 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
PARTIES :	Milica Tomisevic - Appellant Menzies Wagga Southern Pty. Ltd. ACN 074 091 704 - Respondent
FILE NUMBER(S) :	CA 41236/03
COUNSEL :	P. Menzies QC/B. Shields - Appellant J. Maconachie QC/N. Cheon - Respondent
SOLICITORS :	Gibney & Gunson - Appellant Turks Legal - Respondent
LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 7796/2000
LOWER COURT JUDICIAL OFFICER :	Murray ADCJ

Held per Beazley JA (Mason P and Pearlman AJA agreeing)

1. There is no basis for disturbing the trial judge’s finding that the appellant did not actually ingest faecal matter. The evidence, particularly the appellant’s failure to immediately complain about ingesting such matter, supports the finding that the plaintiff was merely splashed with contaminated water and her claim of ingestion was invented subsequent to the incident.

2. As the appellant did not actually ingest faecal matter, it is irrelevant to consider whether it was reasonably foreseeable that the ingestion of such matter would cause psychiatric injury.

3. The first respondent had a duty to take reasonable care for the appellant’s safety. However, it was not reasonably foreseeable that the appellant would have sustained a recognisable psychiatric injury as a result of being splashed with contaminated water.

4. In the circumstances, the work gear provided by the first respondent to the appellant was adequate to satisfy its duty to provide proper means of carrying out the required work without unnecessary risk, as the first respondent knew of no special vulnerability to psychiatric illness on the part of the appellant that warranted the provision of safety apparel beyond that ordinarily supplied to employees.

1 MASON P: I agree with Beazley JA.

2 BEAZLEY JA: The appellant claimed that she suffered psychiatric injury as a result of two incidents which occurred during the course of her employment as a cleaner at the Albury Police Station. Her allegation in respect of the first incident was that she was in the police charge room at the same time as a female prisoner attempted suicide. The second incident occurred the next day when the appellant was required to clean a cell where the same prisoner had been kept and who had smeared faeces on the wall and thrown it at the cell camera. The appellant alleged that as she was washing down the splattered wall, she was splashed with contaminated water and, relevantly, ingested some of the faeces. The appellant brought proceedings against her employer in respect of both incidents and against the police officer who had been responsible for charging the prisoner and the State of New South Wales as his employer in respect of the charge room incident. The trial judge entered verdicts for the defendants on both claims.

3 The appellant now appeals against the verdict in favour of her employer, the first respondent on the appeal, in respect of the cleaning incident.

4 The appellant had been a cleaner for many years and had worked at the Albury Police Station for some years prior to the incidents the subject of the proceedings. The events leading to the incidents commenced on 30 September 1997 when a person by the name of Priscilla Pyke was arrested in Albury. At the time, Ms. Pyke was abusive and drunk. She was taken to the Albury Police Station and placed in a dock in the charge room. Ms. Pyke remained highly abusive and engaged in conduct that can only be described as disgusting. She took off her clothes, urinated and defecated on the charge room floor, hurled faeces at the police and then wrapped her t-shirt around her neck and made out as if to commit suicide. The appellant alleged that during this time she was left alone in the charge room as the second defendant in the proceedings left to obtain help.
5 The trial judge found that the appellant was not in fact in the charge room at the time of this occurrence. He also accepted the evidence of the police officers that the “attempted suicide” was more directed at Ms. Pyke drawing attention to herself and did not involve the gruesome episode described by the appellant in evidence. However, it appears that the appellant observed at least some of Ms. Pyke’s shenanigans from outside the charge room. His Honour held that it was not reasonably foreseeable for either the police constable or the State “to have in contemplation the possibility of harm to persons such as the [appellant] outside the charge room”: see Trial Judgment at [96]. He dismissed the claim against the police officer and the State, but observed that as the appellant’s claim against the respondent depended in part on the cleaning incident, the claim against the respondent was still alive for consideration.

6 The cleaning incident occurred as follows. When the appellant reported for work early the next morning, she was directed to clean the cell in which Ms. Pyke had been kept. The description of what happened was summarised by the trial judge at [110], in a portion of his judgment which is not challenged, as follows:

“The [appellant] said that she reported to work early that morning and was told by Connie to have a look to see what Priscilla had done in the cell area. She said that when she arrived there, she saw that Priscilla Pyke had written her name on the walls of the cell using her own faeces. She said that the cell itself had urine and faeces and vomit and there was faeces and toilet paper stuck to the camera located high in one corner. She said that she and Connie set about cleaning the cell using a mop and water and Connie was coming behind her using a scrubbing brush. She said she was mopping the walls with the mop and all of a sudden, the mop flipped back when she was trying to get the faeces off the high points and the mop contained dirty water with faeces and urine in it. The [appellant] claims that the splash of dirty water went into her eyes, her mouth was open and part of it went into her mouth and into her ears. She said that she could taste the faeces and urine.”

7 As a result of this incident the appellant claimed that she suffered a post-traumatic stress disorder, manifesting itself, inter alia, with the fixation that she was infected with AIDS or some similar disease, and that she suffers from depression and fear of infecting other members of her family (see Trial Judgment at [12]). There was no issue in the case that the appellant suffered such a psychiatric illness. The appellant has not been dissuaded from her belief that she suffers from AIDS or some other infectious disease by blood tests which clearly establish that she does not in fact have any disease.

8 The appellant’s case as pleaded was that she ingested faecal matter. This is apparent from No. 7 of the Statement of Claim which alleges:

“On 1st October, 1997, the plaintiff re-attended the police station. She was required to clean a cell where the female prisoner ‘Priscilla’ had smeared faeces on the wall, thrown faeces on the cell camera and written her name ‘Priscilla’ with faeces on the cell wall. As the plaintiff removed the faeces, she was splattered and faeces entered her mouth, eyes, ears and clothing.” (emphasis added)

9 She alleged that the respondent was negligent in the circumstances by failing to provide her with protective gear. The thrust of the appellant’s case as pleaded was that the respondent had failed to provide her with a face-mask. However, the case was pleaded more widely and included allegations that the respondent failed to provide her with protective clothing and relevantly included the following particulars of negligence:

“f. Failing to provide the plaintiff with protective clothing and head gear that would have prevented the ingestion and other contact by the plaintiff with faecal matter when cleaning the cell;

g. Failing to provide any or any sufficient clothing, head gear, plant and equipment;

h. Failing to direct the plaintiff to not clean in circumstances where there was an appreciable risk of the ingestion or other offensive contact with faecal material;

i. Failing to implement a system of work as would have prevented the plaintiff from ingesting or having other offensive contact with faecal material.” (emphasis added)

10 The matter was heard by Murray ADCJ. In his opening to the trial judge, senior counsel for the appellant based the appellant’s case upon the fact that when she was cleaning the walls she had become splattered with contaminated water containing faecal material and had ingested some faeces (Black 4).

11 The trial judge rejected the appellant’s evidence that she ingested faecal matter. As will become apparent, the rejection of this allegation was central to the overall rejection of her claim. It is convenient at this point, however, to refer to his Honour’s overall conclusion in respect of the cleaning incident.
12 There was a dispute on the evidence as to whether the appellant was provided with a face-mask when she had to clean the cell. The appellant said she was not, and his Honour ultimately made a finding to that effect. His Honour also found that the cleaning operation that the appellant was required to undertake “was simple, uncomplicated [and] one which an experienced employee within a normal system of work could implement safely and without the risk of injury”: see Van Der Sluice v. Display Craft Pty. Limited [2002] NSWCA 204. His Honour considered the operation was very much within the control of the appellant and Ms. Halpin, and that “it was not inevitable that they be splashed with water”: see Trial Judgment at [137].

13 His Honour specifically found the appellant had developed the alleged psychiatric condition as a result of being splashed with water which she believed was contaminated. He held at [139], however, that her psychiatric reaction was “out of all proportion to what might reasonably be anticipated”. His Honour further found at [140] that the provision of a face- mask and the enforcement of wearing it “may not have prevented the development of a psychiatric reaction”. His Honour then made the following findings:

“143. The plaintiff claims that it [sic] was being splashed and ingesting some of the waste products that has caused her psychiatric condition.

144. I am not satisfied that the Plaintiff in fact ingested the material. I find that she may have been splashed with dirty water but I am not satisfied that it entered her eyes, mouth or ears. I think the Plaintiff has exaggerated what in fact occurred. (emphasis added)

148. I find that it was not reasonably foreseeable, in the circumstances of this case, for the Defendant to anticipate that, by requiring the Plaintiff to undertake the cleaning operation of the cells, it might expose her to the risk of psychiatric injury. Tame v. New South Wales [2002] HCA 35; (2002) 191 ALR 449 [para’s 12, 15, 29, 45, 60, 71, 90, 102, 104, 108,200,201,273,285,296,331].”

14 The appellant raised three specific issues on the appeal. First, she alleged that the trial judge was wrong in finding that she had not ingested faecal material. Secondly, she contended that the trial judge erred in finding it was not reasonably foreseeable that a person would decompensate by way of a major psychiatric illness as a result of having ingested faecal material. Thirdly, the appellant contended that the trial judge had failed to deal with her claim that the respondent had been negligent in failing to provide her with protective gear and that it was foreseeable that the appellant would suffer a psychiatric injury because of her perception that she had ingested faecal material. This ground is only relevant if the first challenge to the trial judge’s factual finding is unsuccessful.

15 The appellant submitted that the clear evidence in the case was that she had ingested faecal material and that the trial judge erred in finding to the contrary. She relied first upon her own evidence and secondly, upon the evidence of Ms. Halpin, in support of her argument that the trial judge should have found she ingested faecal material. As there was a credit finding against the appellant on this issue, any chance of successfully challenging the trial judge’s finding depended upon acceptance of Ms. Halpin’s evidence that the appellant had made an immediate complaint to that effect.

16 In her evidence-in-chief, Ms. Halpin said that the appellant said to her whilst they were cleaning the walls:

A. ‘I think I have got faeces in my eye’, and her mouth. Wiped her mouth. (reproduced as per Transcript)

“Q. Well, I am suggesting to you that at the time the splash occurred she said it was in her eye but didn’t say she had swallowed it?

A. She said to me that she got shit in her eye and then said ‘I think I have got some in my mouth’.

18 Pressed on this version, Ms Halpin reiterated that it was whilst they were doing the cleaning that she heard the appellant say that she got faecal matter in her mouth. Later, in her cross-examination, she admitted that the first time that she had so remembered the incident was when she was asked about it by the appellant’s solicitors a few days before the hearing. She also conceded that she had not made any mention of the appellant having said that she ingested the faecal material in her earlier statements. She accepted that in her first statement, made on 12 November 1998, she had only referred to the appellant having said that she had been splashed in the eye and that there was no mention of having ingested any material. It appears that she conceded under cross-examination that what she wrote in her statement was correct. It also appears that Ms. Halpin had been asked to make a statement approximately 2 weeks before the hearing which again contained no reference to the appellant having said that she had got faecal material in her mouth.

19 The trial judge found at [118] that the appellant’s case “was corroborated to a degree” by Ms. Halpin. At [124] he referred to Ms. Halpin’s first statement of 12 November 1998 in which she reported the appellant saying “It’s in my eye”. The trial judge did not refer to Ms. Halpin’s oral evidence in which she said that at the time of the incident itself, the appellant had also made the complaint about the contaminated water splashing into her mouth.

20 His Honour also referred to the evidence of Mr. Brown, a principal of the first respondent, on this issue. Mr. Brown said that he been advised of the cleaning incident some days afterwards when he received a report from Ms. Halpin. Mr. Brown said that when he spoke to the appellant, she told him that the operation to clean the cell walls had taken several days and that she and Ms. Halpin had been “splashed with waste water”. However, some months later the appellant told Mr. Brown that the water had splashed in her ears and mouth.

21 It is apparent from his Honour’s reasons that he considered significant portions of the appellant’s evidence to be unreliable in relation to the question whether she had ingested faecal material. His Honour specifically found at [144], that the plaintiff had exaggerated what had occurred. This finding is protected by the principles in Abalos v. Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, unless the appellant can bring herself within any of the circumstances in which a trial judge’s credit finding might be overturned.

22 There was more than a suggestion that the evidence in relation to ingestion of faecal material demonstrated subsequent invention. Although the trial judge did not make a credit finding as to Ms. Halpin’s evidence in this respect, it is implicit in what he said at [118] that he did not accept Ms. Halpin’s very recent recollection of the allegation. This is not surprising. In the first place, it was open to the trial judge to reason in this case on the basis that earliest recollections are more likely to be reliable than a prompted recent “recollection”. In this case, Ms. Halpin had no such recollection until expressly “reminded” of the event that she was being asked to recollect. Further, whilst the entire work incident was undoubtedly unpleasant in the extreme, and although there appears to have been no doubt that both the appellant and Ms. Halpin were splashed, there is a significant difference between being splashed with faecal material on the one hand and ingesting it on the other. Had the latter occurred, it might be expected that it was something that would remain fixed in one’s mind.

23 There was also the evidence of Mr. Brown who said that the appellant’s allegation about ingestion of faecal material was made to him some months after the accident. Likewise, upon her first visit to her doctor about 2 weeks after the accident, the appellant did not complain of such a disgusting occurrence.

24 In my opinion, there is no basis for disturbing his Honour’s factual finding.

25 As the second issue depended upon the appellant being successful on the first, it too fails.

26 Having rejected the factual basis upon which the appellant advanced her case, the trial judge reached the conclusions reproduced at [12] above. The appellant submitted that in doing so, his Honour failed to deal with her case that she had not been properly kitted out with protective clothing. As I understand this argument, it was that, had the appellant been properly kitted out, there would have been no opportunity for her to perceive that faecal matter had got into her mouth, as her physical integrity would have been protected by the barrier provided by protective gear, especially by the provision of a face-mask. In this regard, the appellant adduced evidence that after the incident, the employer provided full protective clothing for employees. This clothing comprised a full body suit with hood, a face-mask, protective goggles and the same heavy duty rubber gloves that she was wearing on the occasion of the cleaning incident. Mr. Brown gave evidence that that gear had been provided for emergency situations and there was evidence from Ms. Halpin that employees had used it at least on a couple of occasions.

27 There is an immediate difficulty with this argument, as it does not appear that the case was argued before the trial judge on the alternative basis that the appellant had suffered psychiatric injury because of her perception that she had ingested faecal material. Although a review of the pleadings indicates that the particulars of negligence were, arguably at least, wide enough to accommodate such a case, that of itself is not sufficient for the appellant to argue it now. As senior counsel’s opening to the trial judge demonstrates, the case was put to his Honour on the specific basis of actual ingestion.

28 Senior counsel for the appellant submitted that, nonetheless, the trial judge should have dealt with such a case on the basis that the specific case advanced by the appellant incorporated the more general case that protective clothing should have been provided to protect the appellant against the possibility that she might perceive she had ingested contaminated water. I do not agree. Had the trial judge determined the matter on that basis when no evidence or submissions had been put to that effect, the respondent would have had a legitimate complaint of breach of natural justice.

29 In any event, I do not believe that the appellant can succeed on the alternative case.

30 The respondent had a duty to take reasonable care for the appellant’s safety: see Andar Transport Pty. Limited v. Brambles Limited [2004] HCA 28; (2004) 78 ALJR 907 for a recent statement of this principle. The duty encompasses the requirement to provide proper and adequate means of carrying out the work without unnecessary risk: see, for example, O’Connor v. Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225 at 229. The appellant’s job involved, from time to time, cleaning up “human waste and vomit from the cells”. There was, therefore, a risk of infection that was foreseeable. The respondent was under a duty to protect the appellant against such a risk and the obvious means of doing so was by providing protective clothing. She was provided with heavy duty gloves and a uniform. However, subject to what follows, it is arguable that a mask should also have been provided.

31 Although the trial judge considered that a face-mask may not have prevented the appellant’s psychiatric illness, that finding was made in the context of his finding that the appellant was splashed with contaminated water. The appellant’s point is different. It is that, having been splashed with water, she perceived that she had ingested it and that the trial judge failed to deal with that case. That raises the question whether the class of injury sustained by the appellant ought to have been foreseen by the employer: Mount Isa Mines Limited v. Pusey [1970] HCA 60; (1970) 125 CLR 383 at 413-414. In this case, the class of injury was a recognised psychiatric illness: see O’Leary v. Oolong Aboriginal Corporation Inc [2004] NSWCA 7.

32 The circumstances in which a plaintiff is entitled to damages for psychiatric injury were considered by the High Court in Tame v. New South Wales [2002] HCA 35; (2002) 211 CLR 317. There, Gleeson CJ said at 331:

“A necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed. More than 150 years ago Pollock CB (in Greenland v. Chaplin [1850] EngR 528; (1850) 5 Ex 243 at 248 [155 ER 104 at 106]) said that a person ‘is not ... expected to anticipate and guard against that which no reasonable man would expect to occur.’”

“It is important that ‘reasonable foreseeability’ should be understood and applied with due regard to the consideration that, in the context of an issue as to duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.”

“[T]here may be something about the vulnerability or susceptibility of a particular plaintiff that makes it unreasonable to require a person to have in contemplation the kind, or perhaps the degree, of injury suffered. In the context of remoteness of damage, it is established that a tortfeasor must take a victim as a victim is found; but we are presently concerned with whether there is a duty of care, and whether a tort has been committed. Putting to one side cases where a defendant knows, or ought to know, of the peculiar susceptibility of a plaintiff the law has established what Brennan J described in Jaensch v. Coffey [1984] HCA 52; (1984) 155 CLR 549 at 568, as ‘an objective criterion of duty’. The variety of degrees of susceptibility to emotional disturbance and psychiatric illness has led courts to refer to ‘a normal standard of susceptibility’ as one of a number of ‘general guidelines’ in judging reasonable foreseeability.”

33 Gaudron J turned to the concept of ‘normal fortitude’ at 343-344. Her Honour said:

“The observations of Brennan J in Jaensch v. Coffey deny that ‘normal fortitude’ is or could be the sole criterion of foreseeability of the risk of psychiatric injury. That it is not and cannot be the sole criterion is even more readily apparent once it is accepted, as it must be, that there may be special relationships or special features of relationships, including knowledge of the particular susceptibility of the plaintiff, that render the risk of psychiatric injury to the plaintiff foreseeable, even though it would not be foreseeable in the case of other persons.

To say that ‘normal fortitude’ is not and cannot be the sole criterion of foreseeability, is not to deny that, ordinarily, ‘normal fortitude’ will be a convenient means of determining whether a risk of psychiatric injury is foreseeable. However, it will be otherwise if the defendant has knowledge that the plaintiff is particularly susceptible to injury of that kind or is a member of a class known to be particularly sensitive to the events in question.”

“To insist that the duty of reasonable care in pure psychiatric illness cases be anchored by reference to the most vulnerable person in the community ... would place an undue burden on social action and communication.”

35 Gummow and Kirby JJ also rejected the notion that a standard or concept of “normal fortitude” was a precondition to liability. Instead, their Honours said at 380:

“[T]he standard of ‘normal fortitude’, is not a free-standing criterion of liability, but a postulate which assists in the assessment, at the stage of breach, of the reasonable foreseeability of the risk of psychiatric harm.”

“[T]he concept of ‘normal fortitude’ should not distract attention from the central inquiry, which is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful. It may be that, in some circumstances, the risk of a recognisable psychiatric illness to a person who falls outside the notion of ‘normal fortitude’ is nonetheless not far-fetched or fanciful. If that is so, it is then for the tribunal of fact to determine what a reasonable person would do by way of response to the risk ... Where the plaintiff’s response to the defendant’s conduct is so extreme or idiosyncratic as to render the risk of that response far-fetched or fanciful, the law does not require the defendant to guard against it.” (references omitted).

“Reference to the person of reasonable or ordinary fortitude provides a very important limit to the duty of care to prevent psychiatric injury. It is a limit that should not be abandoned. Unless the defendant knew or ought reasonably to have known that want of reasonable care may injuriously affect a person whom the defendant knew or ought reasonably to have known was abnormally sensitive to the risk of psychiatric injury.”

37 Likewise, Callinan J, especially at 429, considered that the concept of normal fortitude constituted a control upon the availability of a remedy for psychiatric injury, unless a defendant knew or ought to have known of a special susceptibility in a plaintiff.

38 There are some differences of approach in the judgments of their Honours as to whether the law’s concern is with a person of normal fortitude (thus looking at the matter at the time from the viewpoint of duty) or whether that concept is a convenient phrase that assists in the assessment of the question of reasonable foreseeability at the stage of determining breach. McHugh, Hayne and Callinan JJ considered that normal fortitude was relevant to the consideration of duty in relation to psychiatric illness. Gleeson CJ also approached the matter from the perspective of duty but held that the concept of normal fortitude was not definitive. Gaudron, Gummow and Kirby JJ approached the question from the stand point of breach.

39 The respondent did not know that the appellant had any special susceptibility or was vulnerable to a psychiatric injury. Although it was undoubtedly repulsive to be splashed with contaminated water, I am of the opinion that on either approach, that is, on the “duty” approach or the “breach” approach, it was not reasonably foreseeable that the plaintiff would have sustained a recognisable psychiatric illness. In the circumstances, I am of the opinion that even on the alternative case the appeal must fail.

40 It follows in my opinion, that the appeal should be dismissed with costs.

41 PEARLMAN AJA: I agree with Beazley JA.

Supreme Court of New South Wales - Court of Appeal

Tomisevic v Menzies Wagga Southern Pty Ltd Acn 074 091 704 [2005] NSWCA 178 (25 May 2005)