New South Wales Supreme Court CITATION : MONIE v COMMONWEALTH of AUSTRALIA [2003] NSWSC 1141 HEARING DATE(S) : 24/05/2002; 3-17/06/2002 JUDGMENT DATE : 4 December 2003 JUDGMENT OF : Dowd J at 1 DECISION : Verdict for the defendant; liberty to apply; costs reserved. CATCHWORDS : Negligence - duty of care - causation - circumstances in which duty of care owed in respect of psychiatric injury - obligation of employment agency to disclose criminal record - damages. LEGISLATION CITED : Social Security Act 1991 Astley v Austrust Ltd (1999) 197 CLR 1 CASES CITED : Daniels v Anderson (1995) 37 NSWLR 438 March v V & MH Stramare Pty Ltd (1990-1991) 171 CLR 506 Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449 Peter John Monie PARTIES : Jennifer Monie Samuel Monie Commonwealth of Australia FILE NUMBER(S) : SC 20043/01 COUNSEL : D F Rofe QC with A J Tudehope (Plaintiffs) R S McIlwaine SC (Defendant) SOLICITORS : S K & Associates (Plaintiffs) Australian Government Solicitor (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DOWD J Thursday 4 December 2003 20043/01 PETER JOHN MONIE & 2 ORS v COMMONWEALTH OF AUSTRALIA JUDGMENT 1 His HONOUR: This action was brought by the three plaintiffs against the defendant in the defendant's right as the Commonwealth Employment Service ("CES") for damages for negligence in the referral of a person by the defendant, to the plaintiffs, for employment. Background Facts 2 Peter Monie, born 1928, married Jennifer Monie, born 1939, on 16 November 1961 from which marriage there were five children: Sally Barton, Annabel Sides, Sam Monie, Ben Monie and Michael Monie. The last named died on 3 November 1996. 3 Peter Monie and the family company, PJ Monie & Co Pty Ltd ("PJM & Co"), formed a trading partnership of a five thousand acre farming cattle stud property known as Thornleigh situated some thirty two kilometres from Bingara, Thornleigh having been in the family for many years having been well established by 1952. 4 In 1970 a partnership, which operated the farm known as "Thornleigh & Co", was entered between Peter Monie and PJM & Co to be divided as to 25% to Peter Monie and 75% to PJM & Co. The business was carried out on the property. 5 Peter Monie was issued with two A Class shares and his wife with two B Class shares. Each of the five children was allocated fifty shares with Mr and Mrs Monie as trustee for each child. On the death of Michael Monie, his shares were allocated half to each of Peter Monie and his wife. 6 As a result of amendments to the Social Security Act 1991 Peter Monie and his wife converted their shares in March 2002 into ordinary shares and they both resigned as Directors of the company. Their sons, Ben and Sam, were appointed Directors of the company and Ben was appointed Secretary. Peter Monie ceased to carry on the business of Thornleigh & Co which was then carried on by his son, Ben. For the sum of $123,700.00 each, Peter Monie and Jennifer Monie transferred their shares to Ben Monie. 7 Peter and Sam Monie decided in the late 1980s to establish a program to source breeding stock and import semen to Australia for breed enhancement to increase the cattle herd and profitability. As a result of that decision Sam Monie worked as a jackeroo in the Northern Territory for five months and after returning to Thornleigh travelled to Canada for some eight months to develop the stud venture. Sam Monie had completed his education as a boarder at a Sydney secondary college followed by twelve months jackerooing near Tamworth. 8 In February 1991, in addition to operating a commercial herd, Peter and Sam Monie commenced the marketing of cattle semen. Both participated in the day-to-day management of the property. In 1992 a live artificial insemination program was commenced at Thornleigh. The first calves of the artificial insemination program were produced in 1993. 9 On 19 November 1992 Thornleigh & Co employed a Martin Bostelaar as a farm hand for a period of twenty six weeks under the Commonwealth's "JobStart Scheme". Under this scheme there was a subsidy paid of $270.00 a week for twenty six weeks. He worked satisfactorily until he left of his own volition to take another position in February 1993. The JobStart programme was a Commonwealth scheme to assist in the employment of people who were disadvantaged in the employment market. 10 In March 1993 Sam Monie attended the Inverell CES as a result of which, a further JobStart Scheme employee, Michael Gallagher, was employed by Thornleigh & Co with a subsidy of $160.00 per week. 11 On 22 March 1993 Sam Monie sought from the CES at Inverell another employee to assist at Thornleigh as a result of which, on 24 March 1993, Darren James Winsor, was employed under the JobStart Scheme with a subsidy of $220.00 per week. 12 On 15 June 1993 Peter Monie was shot four times by Darren Winsor whilst in the home on the Thornleigh property. Peter Monie was admitted to Bingara Hospital on that day and was transferred on the same day to Tamworth Base Hospital where he was treated for bullet wounds to the right jaw, left arm, right collarbone and right wrist. 13 On 22 June 1993 Peter Monie was discharged from Tamworth Base Hospital. On that same day, Darren Winsor was arrested and charged with the attempted murder of Peter Monie. 14 In July 1993 Sam and Peter Monie attended the CES offices at Inverell and had a meeting with a woman, then Anne Morris, now Arca, being the person who had spoken to Sam Monie at the time of the employment of Darren Winsor. 15 In December 1993 the committal of Darren Winsor for the Attempted Murder took place at Inverell Local Court where Sam, Peter and Jennifer Monie gave evidence. 16 The trial of Darren Winsor was aborted on several occasions having been scheduled to commence on 20 May 1995 when it was adjourned, again in October 1995 when it was adjourned and in November 1995 when the trial was aborted. On 22 November 1995 a further trial was aborted. On each of these occasions, Peter, Sam and Jennifer Monie were required to attend to give evidence. 17 Although Winsor maintained his innocence, on 12 September 1997, Winsor was found guilty of Attempted Murder and sentenced to twelve years imprisonment with a minimum term of eight years, Winsor having been at large, although subject to strict bail conditions, pending trial. 18 From 1993 until March 1996 Sam Monie took over control and management of the family property and the operations being conducted. 19 In October 1993 Peter Monie suffered a stroke. On 21 April 1995 there was a dispersal of a significant number of the stud cattle from the Thornleigh property, a second dispersal occurring on 9 October 1995. Duty of Care 20 In the amended Statement of Claim the plaintiffs pleaded negligence, in that the defendant failed to properly select for referral, suitable candidates for employment at Thornleigh and did not assess the location and the environment at Thornleigh. 21 It was further alleged that the defendant failed to disclose Winsor's long criminal history of dishonesty and violence and that they referred him as a suitable candidate for employment at Thornleigh without that disclosure. 22 It was further alleged that the defendant negligently, either expressly or impliedly, represented that all due care would be taken to screen and select only those persons suitable for the employer and that the person recommended for employment would not constitute a risk, knowing the risk. 23 It was further alleged by the plaintiffs that the defendant committed the act of negligence knowing and intending that the plaintiffs would rely on those representations. 24 It was further alleged that the defendant failed to warn the plaintiffs that they should rely on their own inquiries and that the defendant should have had a system which updated details of job seekers' backgrounds so as to reveal criminal convictions. 25 The plaintiffs, in support of the allegation of negligence, relied on the evidence that Winsor had some forty four convictions resulting in gaol sentences totalling eight months, the last of which sentences resulted in Winsor being released from gaol in December 1992. Winsor's criminal record included a number of juvenile offences. Most of the offences were for Dishonesty but included two offences of Break, Enter and Steal. There were convictions for Assault and Assault Occasioning Actual Bodily Harm, the latter resulting in a six month's imprisonment. The evidence was that Winsor was first registered at the CES at the age of sixteen years, which, it was submitted, would have disclosed his early offences, if they had not otherwise been disclosed. 26 The plaintiffs contended that the system of the CES was grossly deficient if it failed to provide for the updating of criminal convictions and that it was not reasonably expected, in the absence of an appropriate warning or disclaimer, that a job seeker be referred to a potential employer, particularly where there was a long string of convictions for dishonesty and violence. 27 The plaintiffs asserted that the CES had actual knowledge of Winsor's criminal record and relied on Exhibit "V" which was a job classification schedule produced under the JobStart system to cover, not just disadvantaged, but "especially disadvantaged" potential employees. This schedule was, however, not in existence at the time of the referral of Darren Winsor but it was put by the plaintiffs that this system, which records convictions, is an example of what ought to have been in place and that, in effect, there ought to have been a system obliging disclosure by the applicant for employment. 28 It was submitted by the defendant that the offence committed by Winsor was the very serious offence of Attempted Murder. There was no element of dishonesty and the previous convictions of Winsor did not involve firearms and the Assault convictions involved someone to whom Winsor was related. There was, thus, it was submitted, no relevant nexus between the criminal acts in the antecedents and the attack on Peter Monie. 29 It was further submitted by the defendant that the obligation to update criminal convictions must have some nexus with a duty to potential employers and that it must be remembered that the allegation by the plaintiffs that there was an obligation under "due care and common sense" was subject to laws as to privacy. The defendant contended that the role performed by the CES was to fulfil a referral function only, which made the task of a decision to employ that of Peter Monie. In his evidence, Peter Monie accepted that that was his responsibility and role. 30 The evidence of Mrs Arca referred to at T637-638 and T642-643 was largely unhelpful to the plaintiffs' case and did not evidence any system consistent with that alleged by the plaintiffs. At T672, Arca was asked whether there was any process that would reveal a history of being in gaol and other offences to which she replied: "Not that I remember, no." 31 The plaintiffs submitted that if the court were to accept that there was no breach by the defendant in the circumstances of there being no warning and no disclaimer, it would be an affront to community expectations and community sense. 32 Community attitudes are not necessarily rational and tend to expect that no matter what the nature of the fault, somebody will be responsible. As submitted by the defendant, community expectations do not give rise to a duty to make inquiries and, indeed, no evidence was produced that there was such a system. I am not satisfied, even if at some stage inquiries had been made of Winsor, that the CES was aware of his criminal convictions. 33 Arca did not interview Winsor for the position at Thornleigh nor did the other employee Fiona Brown. The evidence of Arca at T657 was that the use of Exhibit "V" was an administrative function and did not constitute a decision taken with respect to the referral of Winsor. The system for JobStart consisted of a financial subsidy to assist severely disadvantaged and job-seekers, a system which had been used twice previously by the plaintiffs, one being of recent weeks, to employ people. 34 At no stage was there any inquiry by the plaintiffs, or any of them, as to criminal antecedents. Whatever version be accepted regarding the interview between Peter Monie and Darren Winsor, as to who was present, it is clear that a conversation occurred in which Peter Monie made very limited inquiries, particularly in relation to references, and was more interested in the applicant's, being Winsor's, skills and experience, rather than his antecedents. 35 It is not suggested, in these proceedings, that anyone to whom the record of Darren Winsor were shown would necessarily employ him. The issue, however, is not as to whether someone has a "criminal record". The issue is the extent to which the defendant, or the CES, is obliged to check and communicate a criminal record. There may be people who would not mind a series of traffic offences for an employee and there may be people who would not employ a person because of a series of traffic offences. It may be that someone would not employ because of a minor matter of Dishonesty, but others who would not mind if someone had had an Assault conviction some four or five years ago previously. The issue is as to what is the system which is in place, not what the system shows. The plaintiffs assert that the CES has a duty to not only inquire of the environment where the potential employee is going to work, but requires that it have a system whereby every time an applicant for employment has a conviction then he or she must disclose it before the next referral to a prospective employer. 36 The prospective employer to whom the applicant for employment is referred is on notice of the person being disadvantaged in the employment market and is paid a subsidy for that very fact, whatever the nature of the employment is. Clearly the CES does not have power to carry out criminal history inquiries without the permission of the applicant. An applicant may, in fact, only disclose some offences and not others. An applicant may, for instance, disclose imprisonment for Assault whereas the assault could be Assault Occasioning Actual Bodily Harm or Assault Causing Grievous Bodily Harm or may, in fact, be assault of a sexual nature although the conviction is simply for Assault. 37 Peter Monie in his evidence (T326) was aware that the Commonwealth was paying a subsidy to an employer who employed people disadvantaged in the labour market: "Q. You were aware that the subsidy was paid in accordance with a Commonwealth program called JobStart? A. Yes. Q. You were aware that the program provided subsidies for certain eligible people, if they were employed? A. Yes. Q. You realised, didn't you, that those eligible people in respect of whom the Commonwealth was prepared to pay a subsidy, were people who had one kind or another of a disadvantage on the labour market? A. Yes. Q. The system was that the employer with a vacancy would interview the applicant for the job, and if the employer approved of that person and employed that person, then an agreement was signed with the Commonwealth which then generated the payment of the subsidy? A. Yes." 38 In his evidence Peter Monie acknowledged the greater the disadvantage, the higher the subsidy (T327): "Q. The more disadvantaged the person, the greater the subsidy? A. Yes. Q. In other words, to put it in common parlance, the harder it was for a person to get a job, the more the Commonwealth was prepared to subsidise employers to employ them? A. I guess so, yes." 39 Peter Monie was also aware from his evidence (T326) that once the employer approved the applicant, agreement was entered into with the Commonwealth to generate a subsidy: "Q. The system was that the employer with a vacancy would interview the applicant for the job, and if the employer approved of that person and employed that person, then an agreement was signed with the Commonwealth which then generated the payment of the subsidy? A. Yes." 40 Peter Monie agreed that, at the time of the employment of Bostelaar and Gallagher, an appointment was made and that they came out to be interviewed. It is interesting to note that Bostelaar was never asked about a criminal record. 41 In his evidence, Sam Monie asserted that he set out criteria for the employment of Winsor. Sam Monie's evidence in relation to Bostelaar is set out at (T116-117): "Q. Well, did you set a criteria for Mr Bostelaar? A. I don't know whether I did. I presume I did, yes. Q. I beg your pardon? A. I presume I did, yes. Q. You presume you set a criteria for Mr Bostelaar? A. Yes. Q. Why do you presume that when you told us earlier that you don't have any knowledge about the employment of Mr Bostelaar? A. Because I don't specifically remember setting that out. I told you exactly what I - Q. You don't know whether the criteria was set for Mr Bostelaar or not, do you? A. Well, it would have had to have been. Q. Do you remember going to the CES in respect of notifying the CES of the vacancy that was ultimately taken up by Mr Bostelaar? A. No, I don't." and then further at (T123): "Q. And I suggest to you that you did not set a criteria of the kind you have testified to in this Court prior to the employment of, firstly, Bostelaar. What do you say about that? A. Well, what's the question? Q. I am suggesting to you that you never set such a criteria, or your father never set such a criteria, prior to the employment of Bostelaar? A. Well, I'm saying that I did." and at (T124): "Q. So you are saying, now, on oath, that prior to Mr Bostelaar being employed, when you brought the vacancy to the attention of the CES, you set a criteria of the kind you have testified about in evidence here? A. That's right. But I'm not sure about Bostelaar; I'm talking about when I went back and set it for Gallagher and Winsor. I didn't say I - Q. You heard my question. I was asking you about Bostelaar. What is your answer in relation to Bostelaar? Are you suggesting that criteria was set when the vacancy that was taken up by Bostelaar was brought to the attention of the CES? A. I can't remember what the criteria was when it was set for Bostelaar." 42 It is clear on the evidence that Peter Monie did not make any arrangements or agreement with the CES. In any event, both Sam Monie at T115 and Peter Monie agreed that it was Thornleigh & Co that would decide the suitability of Darren Winsor for employment. Sam Monie at T114-115 said as follows: "Q. Because the only entity who could decide whether or not the applicant was suitable to be employed was Thornleigh & Co? A. That's right." 43 The evidence of Sam Monie of the conversation that he said took place with Anne Arca was in the following terms (T72-73): "Q. Can you tell us what you said to this lady and what she said to you in the way that his Honour has asked you to do so? A. I said to Anne, "We are looking for another man at Thornleigh". Anne said, "What is it that you're actually looking for?" And I said, "Much the same as before." She said, "Can you just go through that with me?" And I said, "We're looking for somebody who is trustworthy, reliable, hard working, honest. Somebody who can ride a horse. Somebody who can drive a tractor. Somebody that I can rely on to leave at Thornleigh when I'm away checking cattle on agistment or at a show with our stud cattle and also somebody that I can rely on because they'll be around guns because we shoot kangaroos for our works dogs. We've got about ten, 12 work dogs. So, pretty much the same as previously." Anne said, "Okay" - this is to the best of my recollection - Anne said to me, "I'll have a look for some applicants or advertise for some applicants and when I've gone through sorting them I'll give you a call with regards to organising a time for an interview." " 44 It is appropriate at this stage to consider the credibility of the witness Sam Monie. In his evidence, at each stage, his manner of answering was almost invariably self-serving in the interests of the plaintiffs. His conversations concerning the employment of Bostelaar, Gallagher and Winsor are most unconvincing. His evidence generally concerning his relationship with his father and his reasons for leaving Thornleigh were also tailored to suit the plaintiffs' case. When examined about his other property interests in the north-east of NSW, Mr Sam Monie was less than forthcoming. I, therefore, reject the evidence of Sam Monie in support of the alleged conversation with Anne Morris. 45 Even if that conversation alleged by Sam Monie had taken place, it did not, in fact, set out any criteria concerning criminal records and there is, in no way, any agreement entered into between Anne Morris on behalf of the CES and Monie in contractual terms. It was at all times clear that the function of the CES was to refer a person for interview, not to represent that person as being suitable. 46 Where there is a dispute as to the presence of Sally Monie during the conversation, the evidence of Mr Peter Monie as to the interview with Winsor at (T209) was in the following terms: "Q. Did you at any stage interview him? A. I interviewed him down on where we had cattle going on a agistment. I said we were very busy, you'll have to go down on the road when I was speaking to him, making arrangements to where he was to go. Have to go past the house and go down the road for about 3/4 miles and meet us there." He testified that his interview with Mr Winsor was as follows [T210]: "Q. Just say I said to him and he said to me? A. I said to him, "I'm Peter Monie." He said, "I'm Darren Winsor, and this is my girlfriend, Donna." I said, "How do you do?" I said, "You're interested in the job." He said, "Yes, I am." I said, "Well, you can start straightaway." He said, "That would be good. I'll have to go back to Inverell and get my belongings. I won't start next day, I'll start the day after when I move all my goods in." Q. Was there any further discussion you recall? A. I can't. Q. Was there any discussion about the cottage? A. I said we had a cottage, "You saw the cottage as you went past. That's the house you'll be living in." And he said, "Yes, that's all right. That's good." 47 There is no substantial dispute as to the terms of the conversation which occurred between Darren Winsor and Peter Monie. It is not necessary to make a finding as to whether Sally Monie participated in that conversation or was present. The interview was brief. 48 The plaintiffs, in endeavouring to establish duty and breach, spent a considerable amount of time related to the conversations between Sam Monie and the witness Arca and the conversations which later occurred between Peter Monie, Sam Monie and the CES employee, Arca. 49 In examining the conversations which occurred between Sam Monie and Arca, even accepting that those conversations occurred, it is clear from that evidence that the function of the CES was to act as a referral agency. The plaintiffs were clearly on notice that all employees were substantially disadvantaged in the employment market but, nevertheless, took those employees because of the very substantial subsidies involved in their JobStart arrangements. 50 Notwithstanding that the plaintiffs were on notice of some problem with the potential employee, they made no attempt to explore the problem. At no stage was there any representation by the CES as to the potential employee, Winsor, being suitable. The process of examination of the CES records as to available applicants was obviously little more than a classification of categories of employment so that, logically, someone with no farm skills who was trained in clerical matters, or as a chef, or other such inappropriate skills would not be sent, but at all times it was the potential employer who was to do the interview and who was to decide the suitability of the referred potential employee. 51 There was no specific contractual relation made at any time in respect of Winsor, as indeed was not made for the previous employees, which raised a duty or responsibility on behalf of the CES. There was clearly no holding out as to the suitability of Darren Winsor. 52 To suggest that the CES had an employee to investigate the environment of a remote location, and if it did so, that this in some way would bear on the extraordinary circumstances of the shooting of Peter Monie by Darren Winsor, does not logically follow. There is no evidence that the location of the shooting had anything to do with the reasons for it. 53 The fact that Peter Monie said that he relied on the CES to check matters such as criminal history does not, of itself, give rise to any duty on the part of the CES. The CES, as referred to above, has limited capacity to explore a criminal record, and is unable, for the reasons I have outlined above, to make that record known. There is nothing in the arrangements made under the previous employment or indeed under this arrangement for employment that gave rise to any duty on the part of the CES to disclose the criminal antecedents. The whole JobStart scheme was predicated on assisting people who would, for various reasons, have problems obtaining employment. The very working of the subsidy scheme, therefore, put the potential employers on notice of a problem without specifying what that problem was. 54 For the reasons I have indicated in relation to Mr Sam Monie, I reject his evidence as to the terms of the conversation that he asserted occurred at the time of the employment of Darren Winsor. There is, in any event, in that conversation nothing which gives rise to a duty of care or any reliance on the part of the plaintiffs on the actions of the CES that was reflected in the events of the shooting of Peter Monie. 55 I find that the defendant had no duty of care in establishing the systems that it employed and that its actions in arranging for contact with the potential employers either directly or impliedly was a basis for any reliance on the part of the plaintiffs. In the event that any duty of care arose, as suggested by the plaintiffs, I can find no breach of any duty by the defendant. The fact that Darren Winsor committed the violent act that he did was not as a result of any propensity on his part, as evidenced, in any event, by his criminal record. What he did in shooting Peter Monie did not create a breach of any duty on the part of the defendant. Causation 56 March v V & MH Stramare Pty Ltd (1990-1991) 171 CLR 506 per Mason CJ is authority for the fact that the plaintiffs must establish that their injuries were caused or were materially contributed to by the defendant's wrongful contact and must be looked at as a question of fact to be answered by reference to common sense as a test. 57 The plaintiffs submit that Peter Monie's injuries were inflicted by Winsor who would not have been in a position to inflict those injuries had the CES not acted negligently in referring him for employment. Therefore, the defendant's negligence materially contributed to Peter Monie's injuries and similarly, with the nervous shock claim of Jennifer and Sam Monie. So it is necessary that, at this stage, not only on the question of causation but on the question of contribution, to examine the alleged conversation which occurred between Sam Monie and Darren Winsor shortly prior to the shooting. 58 In Peter Monie's police statement of 16 June 1993 (Exhibit 3) it was said in para 11: "I can't explain why I thought it was Darren Winsor firing at me because the house was lit up and I couldn't see anyone outside in the darkness. My son Sam informed me about a week ago that Winsor had spent some time in jail and this made me feel a little uneasy ." From the terms of the statement and the hospital notes showing that Peter Monie was alert, conscious and cooperative, there is no reason to disbelieve this event volunteered by Peter Monie. There is no evidence before the court that pethidine, as administered, would have affected Peter Monie's ability to provide accurate information. 59 This evidence is corroborated from the evidence of Darren Winsor as to a conversation he had with Sam Monie (T263): "Q. "Sam said to me"? A. Sam said to me, "Have you ever been in gaol? Have you ever been in trouble with the law?" Q. "And I said to him"? A. I said to him, "Yes". I think he said something like, "What for?" or - you know, "What for?" and I said, "Assault" and Sam said to me that, "Oh, I have been too", or something like that. I took - can I correct that bit there. Not correct it. I took that as -"" 60 Taking into account Mr Sam Monie's unreliability as a witness and the fact that Peter Monie did not remember the conversation causes me to find that the conversation, as recorded in Peter Monie's statement, in fact, occurred. Peter Monie did not repeat or refer to a supposed conversation with his son, Sam Monie, about Winsor having said that a mate had blown a door off its hinges. 61 The plaintiffs say that they rely on Mason CJ in March (supra) at p518: "As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superceding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the "but for" test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it." 62 I find that the conversation, as recorded by Peter Monie, with his son, did occur. They were both then on notice about the fact that their employee not only had committed a criminal offence but that it was such as to involve gaol and, therefore, to be a serious matter. They were both aware that Darren Winsor was severely disadvantaged in the employment market and were thus, with those two events, on notice of the events upon which the plaintiffs rely to establish their case. 63 In my view, this breach breaks the line of causation and the actions of the defendant, if arising out of a duty which has been breached, is defeated by a break in the chain of causation and as it was perfectly open to both Peter and Sam Monie to raise the issue and deal with it. Contributory Negligence 64 Clearly, the management of the property was in the hands of Peter Monie and Sam Monie and no question of contributory negligence arises in respect of Jennifer Monie. 65 Both Peter and Sam Monie did not establish criteria for the employment for each of the three JobStart employees, notwithstanding that both were on notice of the substantial disadvantage of all of them in the workplace. There is no evidence to show that there had been any carefully thought out criteria for establishing suitability for employment. Disclosure to Sam Monie, which was communicated to Peter Monie, generated no action on their behalf to clarify what was a quite serious issue taking into account that the original interview for employment purposes between Peter Monie and Darren Winsor was perfunctory in the extreme and did not demonstrate a responsible approach to employing someone on an isolated farm, who would be living on that farm and working closely with the family. 66 In the event that I am wrong on the question of breach of duty and causation, I consider that the actions of Peter and Sam Monie were extremely irresponsible once on notice of matters that clearly required further conversation with Winsor, or else did not interest Peter and Sam Monie in the slightest. I consider that the actions of both Peter and Sam Monie were equally contributing to the negligence, if there was any, and I would reduce the amount of any damages by two thirds in respect of each of them. 67 I do not think the plaintiffs conducted themselves in such a way as to take reasonable care for the safety of themselves (Astley v Austrust Ltd (1999) 197 CLR 1 per the majority at p14). The fact of the conversation with Winsor is not to the point. Clearly the conversation was remembered after Sam Monie recovered his sobriety. Damages 68 In the event that I am in error on liability it is necessary to consider the issue of damages. 69 With respect to Peter Monie the defendant says that the evidence of Dr Wakeford contained in Exhibit "8" should be accepted, that evidence being that by 16 July 1998 the plaintiff Peter Monie had recovered from the problems of his shooting and the trial. 70 The plaintiff was sixty four years at time of trial and is now seventy five. He suffered a comminuted fracture of the ulna of the right wrist after being shattered by the penetration of a bullet, causing substantial and some minor damage in the area of penetration and although there has been a substantial recovery there is still an impairment of the arm, although the assessment of disability is difficult as a result of the subsequent stroke that Peter Monie suffered. There were other wounds to the shoulder and face, the latter being quite substantial, causing the need for dental work and requiring considerable ongoing dental work. The pain and suffering would have been substantial, particularly at the time of the incident. 71 The shooting, in so far as it took some time and was at a time when the plaintiff, Peter Monie, was aware that he was alone and that he was being hunted by the shooter, was something which was not likely to be forgotten and the pain and suffering of that event alone, is quite substantial. 72 The subsequent disorientation, fear and post-traumatic stress disorder is of some considerable consequence and will effect his ongoing quality of life. This is also complicated by the stroke. 73 The issue of the relationship between the stroke in October 1993 and the incident requires the weighing up of the evidence of Dr G P Hibbard to the effect: "I would conclude that his stroke in October 1993 was related to the shooting episode. " On the other hand, Dr P R C Wakeford did give evidence as to the reasonable control of Peter Monie's blood pressure. His evidence at T248 is in the following terms: "Q. You were taken to your report dated 24 September 2001 and the opinion that you expressed in the last paragraph and you said, if my note is correct, "I could not exclude the possibility of the event having caused the incidents". Do you recall that? A. Yes. Q. Then you said, "I think my statement says that."? A. Yes. Q. Then my friend asked you that you couldn't exclude other events and your opinion was that, "It was my professional opinion that the shooting did play a part"? A. Yes. Q. When you said "play a part" what did you mean by that? A. I meant what I said in that last paragraph: "Whilst his blood pressure did remain reasonably controlled during this period he had a number of episodes of transient ischemic attacks which more probably than not were related to a period of long stress superimposed on a cardiovascular system damaged by his long history of hypertension since the 1970s."" The defendant did not adduce any evidence. I do not find on the civil onus required that the plaintiff's stroke was caused by the incident of the shooting. 74 In all, however, taking into account the terrifying events of the night of the shooting and the diminished person which the plaintiff, Peter Monie, became as a result of the fears engendered by those events in addition to the trauma of having to attend the criminal court proceedings and the concern of the return of Darren Winsor to the community after serving whatever period he has to serve, that the amount of general damages to which Peter Monie would be entitled would be the sum of $100,000.00. 75 Since the major part of the trauma, particularly taking into account the fact of the symptoms from which he now suffers, are overlaid by the events of the stroke, I would apportion these as to past general damages as 60% of that amount. 76 Clearly I would allow out of pocket expenses but these should be brought up to date and interest calculations need to be also brought up to date and the parties should have leave to effect those calculations. Economic Loss - Thornleigh & Co 77 As conceded by submissions for the plaintiffs it would not, in any event be possible to place a precise figure on the claim for economic loss. There were drought years during the 1990s and there were losses by the partnership up to the date of the attempted murder, some of those related to the drought, prior to the attempted murder. 78 The evidence of Mr Tremain indicates that the stud business could have been financially successful and it is submitted that it is more probable than not that the farm would have been profitable. 79 Considerable economic material was produced in the hearing taking into account earnings of the business prior to the shooting and subsequent to that event. 80 It is necessary to consider the circumstances of the making of the decision to substantially terminate the stud farm operation in the two dispersals which substantially depleted the stud herd. It is submitted by the plaintiffs that the court should find that the dispersal was a consequence of the severe wounding of Peter Monie. There were clearly disagreements between Mr Sam Monie and Mr Peter Monie over the direction of the farm. Some of the problems arose out of the family relationship, some arose from difference of philosophy between the two and some arose from the disagreements that clearly occurred between father and son. All of the evidence for the plaintiffs has endeavoured to minimise the extent of that, but it is clear that there were substantial disagreements. It is also evidenced by the fact that Sam Monie and Ben Monie bought some of the stud cattle in their own right at the sale and ran them with the remaining Thornleigh cattle. 81 It is difficult to equate the running of a farm with capital growth and other benefits of living on a farming property and living, to some extent, off that property. It seems to me inappropriate on the evidence before me to assume any basis whereby average weekly earnings would be an appropriate basis for calculation. 82 It is submitted by the defendant that the probability of the scaled up stud business operating profitably must be measured against the absence of any historical evidence as to profitability, evidence of the likely success of the operation of the stud by reference to other similar farms and the variable factors of drought and market prices. 83 The evidence of witnesses as to damages is based on assumptions which are not borne out by the evidence. 84 The defendant submits the evidence does not amount to anything more than a claim on theoretical losses sustained by the error of Peter Monie's judgment. 85 The plaintiffs accept that losses by the partnership preceded the shooting partly because of drought conditions. I accept the assumption made by the plaintiffs, that Peter Monie would have continued in the business until his seventieth birthday but would assume that his contribution would have substantially reduced as he neared that age. 86 I find that the decision to disperse the stud has not been established as resulting from the events of the shooting and that any losses made on Thornleigh, do not support a claim for economic loss. Damages - Jennifer Monie 87 Subsequent to the conclusion of the hearing the High Court delivered its reserved decision in the matter of Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449. That decision found that the common law of Australia does not limit liability for damages for psychiatric injury to cases where the injury is caused by a sudden shock and there is no limit on liability for damages for psychiatric injury to cases where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath. 88 In that case, Gaudron, Gummow and Kirby JJ held that damages are recoverable in negligence only for a recognisable psychiatric injury and not for emotional distress. 89 Further, Gleeson CJ, Gummow and Kirby JJ, with McHugh and Callanan JJ dissenting, found it was not a pre-condition to recovery in any action for negligently inflicted psychiatric harm that the plaintiff be a person of "normal" emotional and psychological fortitude. 90 The plaintiff, Jennifer Monie, cannot recover for damages for her emotional state and any feelings she may have resulting from the shooting of her husband. She described that Peter Monie's was unwell and that he was frightened and tense. This does not give rise to a claim for damages. 91 I do not consider that Jennifer Monie has established a claim in terms of Tame v NSW. Damages - Sam Monie 92 The plaintiff, Sam Monie, in his claim for nervous shock, gave evidence in the following terms in relation to receiving the information about his father being shot: "It had an enormous effect. It sent me into a tailspin. I was – I mean, my father's just been shot. You know, stuff you read about is not stuff that happens to you. So, I got – I don't even know whether my father was going to survive or whether he was, how bad he was, whether any of the, like where he'd been hit, it could kill him." 93 He gave evidence about being scared and as to where he would sleep because he did not know what was happening. He said he felt that he had let the family down because of what had happened to his father. 94 His evidence was supported by a report by Dr Jungfer which opined as to Sam Monie's ongoing anger and hostility concerning Winsor. In Dr Hadfield's report the following opinion was expressed: "Samuel described the cycles of emotional tension that build up over a period of three to four weeks and how he becomes increasingly nervous, anxious, watchful, overprotective during that period. When the breaking point is reached he becomes overreactive, overprotective, upset, guilt stricken over his inability to prevent the shooting incident, argumentative. When he is able to disclose his emotional pain he experiences temporary relief. He believes that his mother understands his experience better than anyone." Samuel's experience of distress seems to have deepened rather than diminished over time with the consolidation of some obsessive compulsive patterns, guilt, anxiety and fear. Mood swings and identity issues remain unresolved. All of these are becoming disruptive to his mental, relational, work and social life. At this stage and on the basis of his disclosures, he seems to satisfy the diagnostic the criteria for post traumatic stress disorder. There may be other underlying issue (sic) to be resolved." It is submitted on behalf of Sam Monie that he is a very damaged man and that his damage was a direct result of the shock he sustained. 95 Sam Monie's evidence was as to being scared and that he had difficulty coping and that he had problems staying at the property but that he left, soon after the second dispersal sale in October 1995. Until that time he had been, on his evidence, basically running Thornleigh. Then his brother, Ben Monie came to stay at the property and take over its running. Sam Monie's evidence was that when Ben worked with him for a while that he knew that Ben was more than capable of doing the job of running Thornleigh. 96 His evidence about the reasons for the sale of the stud with his father was less than satisfactory. He did say that his father said: "No, I want to sell the stud." The reason his father gave was that they all could not handle the level of work involved. He said that his dream had been to take over Thornleigh. 97 It is submitted on behalf of Sam Monie that he was entitled to reasonably substantial damages for the psychological damage done to him as a result of the defendant's negligence. 98 The defendant submitted that any suggestion of psychological incapability of remaining at Thornleigh is not supported by medical evidence or his evidence. 99 It is further submitted that he continued to live at Thornleigh and, indeed, conducted a business nearby at Warialda. The defendant asks that the court infer that Sam Monie abandoned interest in the operations of Thornleigh because of his father's unilateral decision to scale down the stud operation. 100 The defendant in relation to Sam Monie's damage claim relies on the High Court in Tame, in particular, the passage of Gleeson CJ where his Honour said: "And it was common ground in argument, that save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance or despondency, without any resulting recognised psychiatric illness." 101 I do not consider, having observed Sam Monie giving his evidence and, in the light of the earlier comments that I have made about his credibility, that he has established any claim arising out of any recognised psychiatric injury nor that he has, in fact, suffered any such injury. His decision to leave the property was for reasons related to his relationship with his father. It must be very difficult for someone who is running a property to have someone, taking a back seat in the running of that property, making a decision to disperse the stud which had been Sam Monie's long term dream. Economic Loss – Sam Monie 102 The claim on behalf of Sam Monie is not for specific economic loss but his loss of a chance in terms of Daniels v Anderson (1995) 37 NSWLR 438, in particular the majority judgment at p530-531: "…the issue of causation should be approached upon the basis of proof upon the balance of probabilities with the qualification that an assessment of whether the chance which is said to have been lost had a value is to be made upon the possibilities or probabilities. For this reason it is appropriate to consider initially the question whether a chance was lost as a consequence of the breaches of duty and in the event that an affirmative answer is given to that question to defer consideration of the value issue which should be dealt with in determining whether, and if so what damages are payable …" 103 On behalf of the plaintiff, Sam Monie, it is conceded that no precise figure can be calculated and that the reality of the chance has to be extremely difficult by reason of a series of factors. These include Sam Monie's young age and a working life of some forty years of management of Thornleigh & Co and that his current employment over the next few years has exceeded the remuneration he had received at the time that he left Thornleigh. 104 The suggested basis is that he has lost the chance of earning in five years time and for thirty five years thereafter, at an average of $300.00 per week. 105 On the evidence of Sam's business ventures since leaving Thornleigh where he was making a loss, it is submitted by the defendant that Sam Monie would have received no wages and no assumptions can be made as to the value of his shares. 106 I agree with the submission of the defendant that there is no basis for showing a loss of $300.00 per week over any period and, in fact, it may well be that Sam Monie is better off, in financial terms, by not working at Thornleigh. 107 Rural properties in terms of value in periods of drought are extremely difficult to calculate. There are many factors involved in the complex of commercial, economic and emotional matters within the plaintiff's family. None of these evaluations are made any easier by the intervening stroke of Peter Monie and the consequential effect that must have had and the benefits to which Ben Monie would become entitled because of his own work on the property. 108 The matter is further complicated by the issues of credibility in the evidence of Sam Monie as his evidence was, when against him, reluctantly given and, when any opportunity arose, was self-serving and not believable. 109 I would not award Sam Monie any amount for economic loss as I find no loss has been established. Orders 110 I, therefore, make the following orders: i. In the action by all three plaintiffs against the defendant I find verdict for the defendant; ii. I grant liberty to the parties to make further submissions in relation to matters of interest rates and out of pocket expenses for matters on which findings have been made above; iii. I grant liberty to the parties to apply to make further submissions in relation to damages; and iv. I reserve the question of costs. ********** Last Modified: 12/12/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.