New South Wales Supreme Court CITATION : Miskovic v Stryke Corporation Pty Ltd trading as KSS Security [2010] NSWSC 128 HEARING DATE(S) : 25 May 2009-29 May 2009, 1 June 2009-2 June 2009 JUDGMENT DATE : 19 April 2010 JURISDICTION : Common Law JUDGMENT OF : Rothman J (i) Judgment for the defendant against the plaintiff; (ii) Judgment for the cross-defendant on the cross-claim; DECISION : (iii) The plaintiff shall pay 80% of the costs of the defendant of and incidental to these proceedings, as agreed or assessed; (iv) The cross-claimant/defendant shall pay the costs of the cross-defendant of and incidental to these proceedings, as agreed or assessed; (v) The parties be granted leave to seek any different or special order for costs within 14 days of the date hereof and to seek a full assessment of the damages that, but for the determination on liability, would have been awarded. CATCHWORDS : NEGLIGENCE – psychiatric injury – overwork in employment – security industry – causation – duty of care – no foreseeable risk of sustaining a recognisable psychiatric injury, which was not far-fetched or fanciful – want of care as to regular welfare checks – not causative of injury - TRADE PRACTICES – s 53B of Trade Practices Act 1974 (Cth) – no relevant conduct liable to mislead – query whether representation that forms part of contract of employment can amount to contravention of section - INSURANCE – indemnity for liability for injury to worker not cover damages for contravention of s 53B of Trade Practices Act 1974 (Cth) LEGISLATION CITED : Civil Liability Act 2002 Trade Practices Act 1974 (Cth) CATEGORY : Principal judgment Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 84 ALJR 19 Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 CASES CITED : Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 Mackinnon v BlueScope Steel (AIS) Pty Ltd & Ors [2009] NSWCA 94 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 Pritchard v Racecage Pty Ltd & Ors (1997) 72 FCR 203 Zoran Miskovic (Plaintiff) PARTIES : Stryke Corporation Pty Ltd t/as KSS Security (Defendant / Cross-Claimant) Workers Compensation Nominal Insurer (Cross-Defendant) FILE NUMBER(S) : SC 289632/2008 M B Williams SC / T McKenzie / L Judd (Plaintiff) COUNSEL : L V Gyles SC (Defendant / Cross-Claimant) G M Watson SC / F Doak (Cross-Defendant) NSW Compensation Lawyers (Plaintiff) SOLICITORS : Makinson & d'Apice Lawyers (Defendant / Cross-Claimant) TurksLegal (Cross-Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ROTHMAN J 19 APRIL 2010 289632/2008 Zoran Miskovic v Stryke Corporation Pty Ltd t/as KSS Security JUDGMENT 1 HIS HONOUR: Zoran Miskovic, the plaintiff, suffers (or suffered) psychiatric conditions, being a Major Depressive Disorder (MDD) and Obsessive Compulsive Disorder (OCD), which has rendered him unfit to work. The psychiatric condition was precipitated by his employment as a security guard with the defendant, Stryke Corporation Pty Ltd t/as KSS Security (KSS). As a result, Mr Miskovic sues KSS for damages, alleging a breach of the common law duty of care (negligence), and misleading conduct in contravention of s 53B of the Trade Practices Act 1974 (Cth). 2 Usually, in determining proceedings of this kind, and, in particular, determining liability, the Court, at least as presently constituted, would examine first the existence and content of the duty of care, then determine whether there has been a breach, and thereafter determine whether the breach has caused an injury and, if so, to what extent. In this case, the injury is relatively uncontroversial (although there are differences as to its severity) and, at least on the expert evidence, it is also uncontroversial that employment precipitated Mr Miskovic's psychiatric condition. 3 As a consequence, the Court will first deal with the medical condition, its cause, the effect on Mr Miskovic's employment and then with liability, including breach of the duty of care. The Court will conclude with the effect of the foregoing on the calculation of damage, if any. 4 This is one of those cases, where it seems helpful to consider first the damage suffered, then the particular want of care alleged against the defendant, and thereafter examine whether that damage, caused by that want of care, resulted from the breach of duty, in order to reveal the scope of the duty alleged: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 at 290, [105], per Hayne J. Before undertaking that analysis, the Court needs to establish the facts and deal with the evidence, other than the medical evidence. The evidence is in short compass and is not particularly controversial. The plaintiff, Mr Miskovic, and his work conditions 5 The background of the plaintiff, Mr Miskovic, is not typical, but not uncommon. He was born in Nova Gradiska, Croatia in 1980, migrated to Australia at aged 10 and moved back to Serbia from 1994 to 1999. He did not finish primary school, but on his return to Serbia attended technical College and did relatively well (fourth or fifth in a class of 30) and completed his training. 6 Mr Miskovic returned to Australia in April 1999, where his father already lived. In or just after May 1999, Mr Miskovic applied for a job with KSS; contact having been arranged through an advertisement in the newspaper, Novisti. This was his first job in Australia. 7 Before being employed by KSS, Mr Miskovic was in good health. He was aged 19. He had been trained in martial arts, swam and kept in shape. In Serbia, Mr Miskovic believed he was an open kind of person, knew almost every passer-by in his town and had a few good friends. 8 After the initial contact, Mr Miskovic, at the insistence of KSS, attended a basic training course at Parramatta. The two-week course involved first aid and very basic aspects of security work, and enabled Mr Miskovic to obtain a licence sufficient to undertake employment at KSS. 9 After the two-week course at Parramatta, Mr Miskovic underwent a two-week on-the-job training program; each week with a different person. During the course of that two-week on-the-job training program, the trainers explained to Mr Miskovic the necessary paperwork that was required and Mr Miskovic accompanied the trainers to a number of jobs, some of which were to be on Mr Miskovic's security route. 10 Not every job on the eventual route undertaken by Mr Miskovic was visited during the training programme, but the training programme, as already stated, included some of the premises to be inspected/guarded and included Mr Miskovic becoming acquainted with the general duties associated with the job he was to undertake. There was no psychological testing for Mr Miskovic prior to employment, or at all. 11 I have, quite deliberately, omitted recounting one or more meetings between Mr Miskovic (and/or his father) and KSS during which employment was offered and accepted. The comments at one or more of these meetings form the basis upon which Mr Miskovic claims a contravention of the Trade Practices Act (Cth). There is some controversy about the statements made during the course of these meetings. The conversations in which the statements were allegedly made occurred in a language other than English. 12 There were telephone conversations between Mr Miskovic and KSS, and, it seems, between his father and KSS. Because Mr Miskovic did not have a motor vehicle licence in Australia, he was required to perform work for KSS on foot. The area he was required to patrol was in North Sydney, bounded by the Pacific Highway, Miller Street, Berry Street (both sides) and Arthur Street. While that may have been known to KSS at the time of the commencement of the conversations with Mr Miskovic and his father, neither Mr Miskovic nor his father knew it at that time. Mr Miskovic learnt of it before he commenced work and the details of it during his on-the-job training and immediately thereafter. 13 According to both Mr Miskovic and his father, during the course of the pre-employment conversations, one or other of them asked whether the job was safe and was assured that there was no danger. I will return to the terms of these conversations and the effect, if any, on liability under the Trade Practices Act (Cth), as a separate matter. 14 Unsurprisingly, Mr Miskovic initially did not recall all of the premises that he was required to patrol. Nevertheless, it is accepted that, once he was first employed on his foot patrol (i.e. after the on-the-job training), he was required to work five nights per week from 7.30pm until 3.30am (i.e. eight hours). While there is some dispute as to whether breaks were taken, he was entitled to a break and there were occasional meetings. 15 His father described his attitude, on commencement and shortly thereafter, as "initially very happy" (Transcript page 216), even though Mr Miskovic testified to the fact that he was required to run to complete rounds, had to wait for police and got very stressed when behind in his work. 16 In November 1999, Mr Miskovic's hours of work were increased by one hour (Affidavit [49]) and Mr Miskovic finished at 4.30am after each shift. There were, according to Mr Miskovic, problems with malfunctioning doors, car park roller shutters malfunctioning, plant room leaks, alarm responses and "break and enters" into premises patrolled by Mr Miskovic. If there were a break and enter or an alarm response, according to Mr Miskovic, it was to be attended to immediately and, once at the premises, Mr Miskovic was required to call his supervisor or the control room for further instructions. 17 There was a point in time, between November 1999 and July 2000, in which, because Mr Miskovic "had to walk very fast and did not have any break" (Affidavit [52]), he developed blisters on his feet. Mr Miskovic resolved this problem by wearing more comfortable shoes, and the blisters, it seems, did not return. The blisters were, according to Mr Miskovic, the first sign of working too hard (Transcript page 95). 18 In July 2000, Mr Miskovic's hours of work were increased again by a further one hour and he was, as a consequence, given more duties. I find that the two increases in duties and hours of work were the subject of consent between Mr Miskovic and KSS and, further, I find that Mr Miskovic requested as many hours of work as possible, as a result of which these and the increases, described below, occurred. 19 In October 2000, the roster was altered to allow Mr Miskovic to work 10 nights sequentially and then four nights off, instead of the previously worked five nights of work, with two nights of break. On 22 December 2000, an additional four buildings were added to the patrol. In March 2001, there was a further increase in work and Mr Miskovic was (which practice commenced in December 2000) working from 6.00pm until 5.30am on each rostered day. 20 The evidence before the Court is that Mr Miskovic became extremely stressed when he was behind in his work. Mr Miskovic maintains that, in order to finish his rounds, he was required to run between the different premises. Exhibit A in the proceedings is a photographic log of Mr Miskovic's foot patrol. It includes a map of the area numbered with each of the calls required to be made. Further, there is a list of the 35 calls (in 16 individual buildings) contained in the patrol. 21 There is a discrepancy between the list of calls and the numbered map. Firstly, the numbered map contains only 33 calls (as distinct from 35 entries). Secondly the numbers do not correlate. For example, call number 34 was alleged to be at 111 Pacific Highway North Sydney, being a further call on the premises listed as call number 28. Call number 28, on the map, is not at 111 Pacific Highway. The discrepancy may be due to the list of premises to be patrolled being compiled for a different period of time than the period of time to which the map relates. I will assume, for the purposes of these reasons, the correctness of the list (i.e. the greater number of calls and the addresses for each call). 22 An analysis of the map in Exhibit A (corrected for the additional numbers and addresses) discloses a patrol route bounded as aforesaid: see [12] above. Using each North-South block as the equivalent of two East-West blocks along Mount Street (except the blocks between Little Walker Street and Arthur Street and Little Walker Street and Walker Street, which are calculated as half blocks), the patrol required Mr Miskovic to cover approximately 48 blocks, the longest trip being the equivalent of four blocks between 165 Walker Street and Elizabeth Plaza. The Court will allow a conservative figure of approximately 10 minutes for each 4-block equivalent, from which the Court can calculate a generous walking time of two hours for each shift. By generous, the Court refers to an overestimation of the time taken for each trip. 23 I will allow 10 minutes for each call, which, on the evidence before the Court, I consider to be an exaggerated figure for an ordinary inspection. Realistically, it seems more likely that each call would require five minutes only (plus the necessary travelling time). But allowing 10 minutes for each call (and 36 calls per shift), the amount of time spent on calls would be six hours, and the amount of time spent travelling would (again generously) be two hours. That would calculate rest periods (and periods during which alarms would have to be responded to) as a further two hours per shift. 24 In June 2001, according to Mr Miskovic, there were two to three alarm responses per week. The maximum distance that Mr Miskovic would cover on the foot patrol would be the equivalent of four blocks, which would take no more than approximately 10 minutes. Even if one were to assume the correctness of Mr Miskovic's estimate that each alarm response took 15 minutes, that would amount to 45 minutes per week. It is more likely that each response to an alarm, including travelling time, would take an average of 10 minutes, amounting to an average of 30 minutes per week or one hour for each 10-shift roster. 25 While Mr Miskovic, in his Affidavit at [68], says that he complained about having trouble finishing his shift, his demeanour in cross-examination (especially when giving the evidence recorded at Transcript page 30), suggested a qualification that he believed he had complained, it seems, informally. Further, there is a vast difference between "having trouble" finishing a shift (which I interpret as finishing the work in his shift) and an inability to finish it. On the contrary, when he commenced work, Mr Miskovic enjoyed his work, did well in his training course, was a person of some intelligence, was prepared to work hard and, because of his fitness, amongst other reasons, thought of himself as well-suited for the position. 26 With the exception of the events on 7/8 April 2001, and other explicable and particular occasions when delay occurred, there is no evidence that Mr Miskovic ever failed to complete the work assigned to him, and he asserts that he completed his rounds, as requested, every night: Affidavit at [73]. There is some evidence that occasionally Mr Miskovic returned from his patrol at a time later than was anticipated and/or expected, but, I find, not in circumstances where it caused Mr Miskovic to express formally his concern or to lodge a complaint. To the extent necessary, I find that Mr Miskovic, if acting reasonably, could have comfortably finished the work in each shift and still had breaks. This is corroborated by instances where Mr Miskovic was found asleep during his shift, and had made lengthy telephone calls to Croatia from clients' premises during the shifts. 27 Even though Mr Miskovic became depressed (admittedly precipitated, amongst other things, by his conditions of employment), at no stage, prior to July 2001, was Mr Miskovic, or his father, aware (nor had they considered) that his depression and other symptoms might possibly have been a consequence of his work. Yet Mr Miskovic submits that KSS ought to have been aware of that consequence or that possibility. 28 Mr Miskovic never came face-to-face with an intruder during the course of his employment with KSS. Nevertheless, he worried about that prospect. Other guards, it seems, had been in that situation. The system in place at KSS was that, if a guard, on inspection, were to discover evidence of forced entry into premises, the patrolling security guard was required to contact the Control Room and await other guards and/or police. Mr Miskovic implemented this system. 29 Where Mr Miskovic detected evidence of an insecure lock or insecure premises, involving a breach in the security of the perimeter of premises, the same system applied, but, occasionally, the persons in the Control Room would request that he examine the perimeter for any other evidence of illegal activities that may have led to the breach. Mr Miskovic understood that he could, if the circumstances were such that he felt uneasy about any such request, simply seek assistance, of the kind described. I find, as a fact, that the system, implemented by KSS, was to that effect and that Mr Miskovic was aware of the system. 30 In or about March 2001, Mr Miskovic had difficulty sleeping. He was suffering, he says, from stomach cramps and was very nervous. That nervousness, and the associated cramps, were aggravated, according to Mr Miskovic, when he was required to deal with a "break and enter". 31 According to Mr Miskovic, he informed his two supervisors, Mr Goran Milivojevic and Mr Bob Stanojevic, that he was not feeling well and was very nervous and stressed. It is informative to repeat the precise words of Mr Miskovic's affidavit: "[76] I told Goran Milivojevic and Bob Stanojevic that I was not feeling well and I was very nervous and stressed. They did not reduce my workload. I told them I couldn't complete the work in the time they wanted it done. They just said ' If you can't do the work, you can't do the work. '" 32 The overall effect of the evidence of Mr Miskovic confirms the implication in the foregoing, namely, that if I were to accept that Mr Miskovic had made a complaint to his supervisors, it concerned his workload, not the nature of the work itself. And to repeat, this complaint would have been made in the context that Mr Miskovic completed all of the rounds allocated to him, with the ability to have breaks and the like and comfortably finish his work (see [26] above). 33 After March 2001, Mr Miskovic perceived that the break and enter incidents were more violent. However, there is no evidence that would support this perception, and I do not accept it. The incident with the lift 34 On the weekend of 7/8 April 2001, Mr Miskovic was patrolling 56 Berry Street, North Sydney, entered the lift in the building, and the lift became jammed between levels B1 and B2. Apparently construction work was occurring in the building. There is little doubt, from the content of the story as told by Mr Miskovic, and from the manner of its telling, that Mr Miskovic panicked during this incident. 35 Mr Miskovic recalls that neither the up nor down button on the lift worked. The emergency telephone was faulty and the wires of the handset had been cut. Mr Miskovic felt that the lift had been sabotaged, deliberately, and says he was terrified. He started to shake, was breathing fast, his heart was pounding; he felt like he was choking; he was sweating, and his stomach was painful, presumably with cramps. Mr Miskovic says he tried to use his two-way radio (provided by KSS), but could get no reception. On his initial estimate given in evidence (i.e. in his Affidavit), Mr Miskovic was stuck in the lift from approximately 11.00pm until 6.30am, at which time the building contractors released him. 36 Mr Miskovic completed a report in the morning after being stuck in the lift, when he returned to the office. That report is unavailable, but there is indirect evidence as to its contents. Mr Miskovic says that the report notified KSS that he was "unable to finish anything that night due to getting stuck in a lift". In oral evidence, Mr Miskovic said that the lift became stuck at 10.00pm (not 11.00pm, as stated in his Affidavit). 37 Mr Milivojevic recalls that the content of the report was that Mr Miskovic had been "stuck in a lift at 56 Berry Street for 3 1/2 hours and was unable to finish the calls." Mr Milivojevic could recall the content of the report because it surprised him, as it was inconsistent with the earlier comment to him by a supervisor, Mr David Jones, that it had been a quiet night. 38 On the Monday following the weekend in which the incident occurred, namely, 9 April 2001, Mr Miskovic attended for work, but left early. On commencing work, Mr Miskovic was not feeling well, was nervous, and had stomach cramps. He says that he was frightened to do his work. On informing his supervisor and then Mr Milivojevic, Mr Milivojevic told him to take five days of leave to have a rest. Mr Miskovic then attended his medical practitioner and was prescribed Zoloft and Valium. 39 On his return to work, Mr Miskovic continued to be scared and his father accompanied him to and from work on each occasion. At work, Mr Miskovic was frightened, was sweating a lot, was shaking and shivering and considered that he had a fever. He says that he was terrified. This lasted for seven nights after his return, during which time he was unable to complete his allocated duties. The reliability of Mr Miskovic's evidence 40 Much of the evidence in chief of Mr Miskovic was adduced through an Affidavit that was read, without objection. His evidence in chief was in that form because of the alleged difficulties associated with Mr Miskovic's conditions. He gave very limited evidence in chief orally and was then subject to cross-examination over an extended period. I make no criticism by the use of the word "extended". Indeed, counsel for the defendant and cross-defendant seemed to be extremely sympathetic to the difficulties being suffered by Mr Miskovic. 41 But those difficulties affected Mr Miskovic's evidence. Often, when asked a relatively simple question, Mr Miskovic was not content to provide a simple response, but insisted upon the provision of details that were unnecessary to the purpose of answering the question. I accept that this may not have been an attempt to prevaricate or to dissemble, but rather the effect of obsessive/compulsive behaviour. 42 Necessarily, to some degree at least, the plaintiff's case depends upon the evidence of Mr Miskovic. I do not consider that Mr Miskovic attempted to tell untruths or in any way deliberately misled the Court. However, his psychiatric conditions not only affected the way in which Mr Miskovic answered questions. It plainly affected a number of relevant aspects of his conduct and of his perceptions of his conduct and what was happening to him. 43 One of the obvious examples relates to overwork. I have calculated, very roughly, and in a manner favourable to Mr Miskovic, the time that it would take to walk his patrol and to inspect the premises required of him. I have factored in responses to alarms, and there were still times for a break. On the evidence of those witnesses called by KSS, his duties could have been performed in much less time than I have calculated. I accept their evidence. 44 The difficulty with any such calculation or estimate is that it does not factor into it the obsessive/compulsive behaviour of Mr Miskovic. Assuming, as I must, that Mr Miskovic was suffering symptoms of OCD, duties that would take another person a short time may have taken Mr Miskovic significantly longer. Dr Kossoff recounts that Mr Miskovic told her that in March 2001, when Mr Miskovic was still working, he began checking doors as an obsessive feature, and in June 2001, Mr Miskovic saw a syringe in a public toilet and, merely from seeing the syringe, was concerned that he may have contracted HIV. 45 At least one explanation of the discrepancy, between the assessment of time by employees of KSS or the calculation of time by the Court, and the evidence of Mr Miskovic, is that Mr Miskovic, because of his psychiatric conditions, checked and double-checked each of the premises, or, at least, checked in a manner that was more thorough than was required and more time-consuming than another person performing the same tasks. 46 As Dr Parmegiani noted, most people, in some circumstances, will display some form of obsessive/compulsive behaviour. He gave the example of a person travelling to the airport to go overseas. A person may check their passport, their wallet, their travel documents and do so on a number of occasions, even though the documents could not possibly have moved. Dr Parmegiani opined that, under particular kinds of stress, people experience obsessive/compulsive behaviour patterns. 47 Nevertheless, Mr Miskovic did have clinical Obsessive Compulsive Disorder. Most probably, if Mr Miskovic were unable to complete his tasks without experiencing undue stress, this resulted from his conduct and his affectation as a result of his clinical disorders. It is, of course, impossible to determine with certainty that Mr Miskovic performed his tasks without undue stress. However, it is possible to determine that, on the balance of probabilities, his employment duties were capable of being performed without undue stress. I so find. I am comforted in that finding by the fact that Mr Miskovic, when first employed, enjoyed his work and was not stressed. That latter fact is uncontroversial. Of course, the test for negligence is different again: see [73], infra. But at no stage prior to 9 April 2001 did Mr Miskovic display any behaviour to KSS, or its staff, that would render foreseeable the risk of him sustaining a recognisable psychiatric illness. 48 I also consider that his assessment, given in the witness box and/or in his Affidavit, that he was trapped in a lift in April 2001 for a period of 7½ or 8 ½ hours (on one version 9 hours) to be an inaccurate assessment of the passage of time. Again, I do not take the view that Mr Miskovic was necessarily telling a deliberate untruth, or seeking to mislead the Court. I do, however, take the view that Mr Miskovic's perception of time during that period was significantly affected by his state of panic and the conditions under which he was suffering. Notwithstanding its indirect nature, I accept the evidence of the contents of the report that the time in the lift was 3½ hours and I find accordingly. The pre-employment conversations and reliance 49 The cause of action upon which Mr Miskovic relies under the Trade Practices Act (Cth) depends upon acceptance that Mr Miskovic relied on representations made to him (directly and/or through his father) in pre-employment conversations as to the nature of the work and its safety. 50 Mr Miskovic claims that KSS represented to him that the work was safe and that there was no risk (and the area in which Mr Miskovic was to work was a low risk area). 51 Depending upon the version that one accepts, there was an initial telephone conversation and possibly another telephone conversation and one or two meetings prior to the commencement of employment. The number of conversations, whether they occurred on the telephone or at meetings, is not significant. It is the content of the conversations that is significant. Differences between witnesses, as to when, within a relatively short time frame in the past, conversations occurred, must be expected. People better remember events of significance; and they better remember that which is significant in the event. 52 According to Mr Miskovic, at a meeting between him, his father and Mr Milivojevic, Mr Milivojevic, on questioning, made representations to the effect that the security work in Australia (or to be undertaken) is not the same as security work in Croatia and "there is no risk". Mr Milivojevic is alleged to have said: "It is not like over there and there is no risk. You will have to check office buildings at night and usually there is no one around." Mr Miskovic asked: "Is there any work at day?" To which Mr Milivojevic responded: "No, we work at night. They are not residential buildings. The buildings are offices where people work during the day and there will not be a lot of people around, it is a low risk area and the job is not risky. The job is easy." 53 Mr Miskovic's father confirmed the foregoing conversation and added that Mr Milivojevic said: "there were no drunks". In cross-examination, Mr Miskovic seemed to qualify his version of the conversation and suggested that Mr Milivojevic did not represent that there were no risks, but, rather, did not mention that there were risks: Transcript page 58, lines 23 – 35. 54 Mr Miskovic's father's version of the conversation is slightly different to that of Mr Miskovic. This is understandable. However, in cross-examination, Mr Miskovic's father accepted that Mr Milivojevic did not tell him that there would be no dangers to his son's life or well-being: Transcript page 235, line 5. 55 The findings that the Court makes in relation to these alleged conversations is that the plaintiff, Mr Miskovic, has not proved, even on the balance of probabilities, that the representations were made in or to the effect of that upon which the plaintiff relies in its case. Mr Miskovic was aware of the nature of the duties that he would be carrying out. He was aware that the patrol included the inspection of premises that may have been the subject of a security breach. Further, he was aware, prior to his employment, that he would be working on a foot patrol, that he would be on his own, that he would be working in the North Sydney district and he was aware from his security guard course of the risks involved in security work. Apart from the training Mr Miskovic received, the existence of these risks is common sense. 56 Further, while the North Sydney area may be a less risky area than some, no person can guarantee that there will not be some people on the street in the middle of the night who are drunk. In any event, none of the complaints made about the conditions of employment are concerned with a significant number of incidents in which drunks accost Mr Miskovic. I find that the representations claimed or representations to that effect, were not made. 57 As a consequence of that finding, it is unnecessary to deal with some other difficulties arising from the claim under s 53B of the Trade Practices Act (Cth). Because s 53B liability is not confined to representations or conduct "in trade or commerce", some of the issues raised by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 do not arise. 58 And I accept that personal injury is encompassed within damage available under s 82 of the Trade Practices Act (Cth): see Pritchard v Racecage Pty Ltd & Ors (1997) 72 FCR 203 at 206-207, per Spender J, and 217.B-217.F, per Branson J. However, unlike s 52, s 53B of the Act is confined by subject matter to conduct "liable to mislead persons seeking employment as to the … nature, terms or conditions of, or any other matter relating to, the employment". There are nice questions raised as to whether a representation of "safe work", which is or becomes a condition or term of employment, if breached, can given rise to a contravention of s 53B. In other words, how does conduct representing a term of employment, that becomes such a term, tend to mislead? Or, is it, rather, simply a breach of contract? It is unnecessary to determine this issue. Mr Miskovic's medical condition: the damage 59 Initially, there seemed to be significant differences in the expert medical opinions, at least in emphasis. The three psychiatric experts were ordered into conference and issued a joint report (Exhibit C), being answers to enumerated questions. Thereafter, the evidence of these experts (Drs Parmegiani, Kossoff and Sokolovic) was adduced in a conclave and, while there were continuing differences of some kind, particularly of emphasis, most matters of significance were consistent from each of them. 60 Of the experts, Dr Sokolovic displayed a particular partiality in favour of Mr Miskovic. I make no criticism of the doctor, who has, it seems, a genuine empathy for his client, whom he continues to treat, and a desire to assist him, but his evidence must be treated with some caution, as a consequence. 61 The evidence of Drs Parmegiani and Kossoff was largely consistent. Of the two, I prefer Dr Parmegiani, who seemed more open and less partial, but there is no inconsistency of any moment, except as to the ongoing effect of Mr Miskovic's work with KSS on his current condition. Some of the aspects, on which one or other of Drs Parmegiani and Kossoff have been preferred, are referred to above. I accept Dr Parmegiani as to the ongoing effects of employment with KSS on Mr Miskovic's condition. 62 The most useful method, for present purposes, of summarising the expert opinions, is to recite the Joint Experts' Report. It is in the following terms: " JOINT EXPERTS REPORT Conference held on 21 May 2009 RE: MISKOVIC v STRYKE CORPORATION PTY LIMITED T/AS KSS SECURITY A conference was held on 21 May 2009, at 4pm, at 1208/370 Pitt Street, Sydney NSW 2000. The following Experts attended the conference: Dr Lana Kossoff, Dr Julian Parmegiani, Dr Milorad Sokolovic. The report addresses the Schedule of Questions. The Experts have read the Code of Conduct for Expert Witnesses, and agree to be bound by it. 1. (a) Does the plaintiff suffer any diagnosable psychiatric condition? The Experts agreed that Mr Miskovic suffered a psychiatric condition. (b) If yes, what is the nature and extent of that condition? The Experts agreed that Mr Miskovic suffered a Major Depressive Disorder, and Obsessive Compulsive Disorder. (c) If yes, has the plaintiff been unfit for employment since the onset of his diagnosable psychiatric disorder? Yes, all Experts agreed. 2. (a) If the plaintiff does suffer from a psychiatric condition, what role, if any, did the plaintiff's employment with the defendant have to the development of his psychiatric condition? The Experts agreed that employment precipitated the plaintiffs [sic] psychiatric condition. (b) Were there particular aspects of the plaintiff's employment with the defendant which caused or contributed to his psychiatric condition? What information are you relying on to from an opinion about aspects of the plaintiff's employment which have caused or contributed to his psychiatric condition? The Experts agreed that the plaintiff suffered a quantitative overload and that he feared for his safety because he was working alone at night. He worked long hours, and was unable to fulfil the employer's expectation within the set timeframe. The Experts relied on information provided by the plaintiff, and reports of security consultants Crossley & Graham. (c) To what extent did or does the plaintiffs employment with the defendant contribute to his condition? The Experts agreed that employment contributed significantly to the onset of the plaintiffs psychiatric condition. The Experts however disagreed about the ongoing contribution of employment to the plaintiffs [sic] current psychiatric condition. Dr Kossoff indicated that employment precipitated Mr Miskovic's psychiatric condition in 2001, and that the effects of employment ceased by 2004. Dr Kossoff indicated that Obsessive Compulsive Disorder was a biological condition, and constitutional factors were responsible for ongoing symptomatology. Dr Kossoff quoted research literature on Obsessive Compulsive Disorder. She stated that OCD is a common condition, with a lifetime prevalence of 2.5%. 70% of sufferers are male, and its age of onset is 22-35 years of age. Dr Kossoff believed that Mr Miskovic would have developed OCD in due course, even in the absence of an occupational injury. Dr Parmegiani and Dr Sokolovic accepted that Obsessive Compulsive Disorder has a constitutional component. They regarded this a vulnerability factor, which might not manifest itself in the absence of a stressful life event. Dr Parmegiani quoted literature on the relationship between life events and Obsessive Compulsive Disorder. 29%-64% of persons suffering OCD report an increase in stressful life events shortly before the onset of their condition. This suggests that some people with OCD develop the condition following a stressful life event, while in others environmental factors are absent. Doctor Parmegiani noted that monozygotic (genetically identical) twins do not have 100% concordance for Obsessive Compulsive Disorder This suggests that environmental factors play a role in the development of OCD. Dr Sokolovic indicated that Mr Miskovic did not have a family history of Obsessive Compulsive Disorder. There was no evidence of OCD before the occupational injury. He argued against a strong genetic vulnerability to OCD, that would have led to its development regardless of environmental factors. In summary, Dr Sokolovic and Dr Parmegiani believed that, but for the work injury, Mr Miskovic would not have developed Major Depressive Disorder and Obsessive Compulsive Disorder. 3. (a) If the plaintiff does suffer a diagnosable psychiatric condition, please identify all other factors (apart from the plaintiff's employment) which have caused or contributed to the psychiatric condition. What information are you relying on to from an opinion about the other factors which have caused or contributed to his psychiatric condition? The Experts agreed that work was a substantial factor in precipitating Mr Miskovic's psychiatric injury. Dr Kossoff noted that there was a statement of Mr Alex Pavlicevic, Customer Service Manager for KSS, indicating that Mr Miskovic was depressed about his mother being in Yugoslavia. Dr Sokolovic gave further background to this allegation. Mr Miskovic was found to have called Serbia using a client's telephone, incurring a $60 telephone bill. Mr Miskovic had called a girlfriend in Yugoslavia. His supervisor suggested he should tell management that he was calling his mother, because he was worried about her. His Dr Sokolovic added that Mr Miskovic was not unduly worried about being separated from his mother, and that he was a popular and flamboyant man with many girlfriends. Dr Parmegiani indicated that it will be up to the Court to determine whose account of events is accurate. It will nevertheless be difficult to quantify any contribution consequent upon the separation from his mother. The Experts agreed that litigation contributed to the plaintiffs [sic] current distress. (b) To what extent has each other factor caused or contributed to the plaintiff's psychiatric condition? All Experts agreed that the contribution of other factors would be difficult to quantify, but that employment remained a substantial contributing factor. (c) Did these factors exist before the plaintiff's employment? Mr Miskovic's mother was overseas before the plaintiffs employment. 4. (a) Has the plaintiff's employment with the defendant ceased to be a contributing factor to his psychiatric condition? This issue has already been examined by the experts. Please see 2(c). (b) If so, when did it cease to be a contributing factor, and why? Please see 2(c). (c) If not, to what extent is it still contributing? Please see 2(c). 5. (a) What medical treatment does the plaintiff require? For how long will this treatment be required? What are the likely costs of this treatment? The Experts agreed that the plaintiff suffers a chronic psychiatric condition, requiring treatment. The Experts believed it reasonable for the plaintiff to attend psychiatric appointments every 1-2 months, depending on his symptoms. The frequency of appointments with a psychiatrist should be reviewed at regular intervals, once or twice per annum. The Experts agreed that Mr Miskovic requires medication as prescribed by his treating psychiatrist. This medication might be required indefinitely. (b) Is the plaintiff independent in his daily living? No. All experts agreed. 6. (a) If the plaintiff does suffer from a diagnosable psychiatric condition, what is his prognosis, having regard to his past treatment and assuming that any recommended treatment is taken up? The plaintiffs [sic] condition has assumed a chronic course, and no change is expected in the foreseeable future. All experts agreed. 7. Is the plaintiff competent to give evidence? The Experts agreed that the plaintiff was competent to give evidence. He is however likely to decompensate under vigorous cross-examination, and he will need psychiatric support while attending Court." 63 It is unnecessary for the Court to determine whether the incipient OCD is totally congenital (or constitutional), or, only partly so, and otherwise environmental. There is much force in the comment by Dr Parmegiani that identical twins do not have 100% correlation of OCD. Yet, an obvious answer to that statistic (that points out the discrimination in OCD between the persons with identical DNA and genetic imprint) is that genetic factors may give rise to a susceptibility that is then triggered by environmental factors. 64 In any event, it is unnecessary to resolve this conflict. The experts are clear that Mr Miskovic had incipient OCD, and/or a pre-existing vulnerability to OCD, which was then precipitated by his employment with KSS. 65 Mr Miskovic's employment was a substantial cause of the injury and a substantial contributing factor to his mental condition. Further, whether the underlying vulnerability to the condition is environmental or congenital, there is an underlying vulnerability that, should damages be awarded, would significantly affect the discount for vicissitudes, particularly for the likelihood of a non-compensable injury of the same kind. 66 Such a contingency provision would not, on the material before the Court, need to be different for congenital vulnerability than for environmental vulnerability, i.e. whether Mr Miskovic was born with a predisposition or gained it by some event (such as suffering through war or genocidal violence as a child, or simply by separating from his mother), the effect on the damages calculation, and causation, is not practically different. 67 Nevertheless, as is clear from reading the Joint Experts' Report, recited above, Mr Miskovic suffers significant psychiatric impairment. Dr Parmegiani, in his Report of 2 May 2006 (Exhibit B), described Mr Miskovic, as a person who "remained one of the most psychiatrically impaired individuals I have assessed to date." Dr Parmegiani had been involved in specialist psychiatric practice for over 17 years. Mr Miskovic's disabilities are profound. And those disabilities were precipitated by his employment at KSS in which circumstances he suffered "a quantitative overload and ... he feared for his safety because he was working alone at night. He worked long hours, and was unable to fulfil the employer's expectation within the set timeframe." (Exhibit C) Want of care 68 Essentially, Mr Miskovic's case rests upon the two propositions: that Mr Miskovic was subject to risks and dangers, contrary to the representations made to him; and that he was unreasonably overworked which precipitated the mental conditions. There is an added complication in relation to his work conditions, relating to the incident in the lift. 69 The Court has found that the representations alleged by Mr Miskovic have not been proved, on the balance of probabilities. Most probably, if the Court were to conjecture, there was a conversation in which Mr Milivojevic referred to the work as "not arduous", unlike labouring work. Further, it seems that there was some conversation about the area in which Mr Miskovic would be working and its environmental hazards. However, there was no guarantee or representation that there was no risk, and, in the context of explaining that most workers lasted only two months, Mr Milivojevic is likely to have stressed the social pressures from working at night and that the task is not an easy one. 70 I am bound by the proposition that an employer may not be liable for psychiatric injury to an employee brought about by the employee's performance of duties originally stipulated in the contract of employment. The High Court has stated that "notions of 'overwork', 'excessive work', or the like, have meaning only if they appeal to some external standard…. … … Presumably, … some form of industry standard. Assuming, however, that content can be given to that concept, its application would invite attention to fundamental questions of legal coherence. Within the bounds set by applicable statutory regulation, parties are free to contract as they choose about the work one will do for the other. In particular, within those bounds, parties are free to stipulate that an employee will do more work than may be the industry standard amount. Often the agreement to do that will attract greater rewards than the industry standard. Developing the common law of negligence in a way that inhibited the making of such agreements would be a large step to take." ( Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 at [69], [70], per material, McHugh, Gummow, Hayne and Heydon JJ) 71 Nice issues may arise from the generality of the latter part of the foregoing. For example, it would seem, taken to its extreme, such a principle would translate into the proposition that the common law could not interfere with a contract of employment, which was sufficiently specific to require the performance of work under an unsafe system of work. I do not take the High Court to have gone so far. 72 Nevertheless, and appropriately, the proposition that an employer would be negligent for "overworking" an employee is, to say the least, problematic. In the words of the joint judgment in the High Court: "The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions. (This last class may require particular reference not only to industrial instruments but also to statutes of general application such as anti-discrimination legislation.) Consideration of those obligations will reveal a number of questions that bear upon whether, as was the appellant's case here, an employer's duty of care to take reasonable care to avoid psychiatric injury requires the employer to modify the work to be performed by an employee. At least the following questions are raised by the contention that an employer's duty may require the employer to modify the employee's work. Is an employer bound to engage additional workers to help a distressed employee? If a contract of employment stipulates the work which an employee is to be paid to do, may the employee's pay be reduced if the employee's work is reduced in order to avoid the risk of psychiatric injury? What is the employer to do if the employee does not wish to vary the contract of employment? Do different questions arise in cases where an employee's duties are fixed in a contract of employment from those that arise where an employee's duties can be varied by mutual agreement or at the will of the employer? If an employee is known to be at risk of psychiatric injury, may the employer dismiss the employee rather than continue to run that risk? Would dismissing the employee contravene general anti-discrimination legislation?" ( Koehler , supra, at [21].) 73 The current proceedings can be determined far more simply. The Court, in these proceedings, has determined that there were not, prior to 9 April 2001, any outward signs of Mr Miskovic's psychiatric injury, or his predisposition thereto. Nor is there anything inherent in the work, the workload or the system of work that gives rise to, or would render foreseeable, any risk of sustaining psychiatric illness. The Court concludes that a reasonable person in a position of KSS would not have foreseen the risk of sustaining a recognisable psychiatric illness to Mr Miskovic or anyone else, which risk was not far-fetched or fanciful. In those circumstances, KSS cannot be liable for the injury, even though it was caused, or precipitated, by the employment: Koehler, supra, at [26], [33] and Mackinnon v BlueScope Steel (AIS) Pty Ltd & Ors [2009] NSWCA 94 at [61]. 74 For KSS to be liable for these injuries, arising from any want of care, KSS would have been required to assess each and all of its employees, by psychiatric examination, as to their suitability for security work or their predisposition to OCD and/or MDD. There is a point at which employees warrant that they are physically capable of performing the work for which they contract. The system operated by KSS was not, of itself or otherwise, unsafe or unreasonable. And KSS was entitled, when Mr Miskovic performed his work initially, and enjoyed it, to take the view that he had no predisposition inconsistent with his capacity to perform the work safely. The foregoing does not deal with the question of the incident in the lift. 75 There are aspects of the system operated by KSS, evident from the incident in the lift, which were foreseeably unsafe. That statement has nothing to do with overwork. Because of the situations with which a security guard would be dealing, it is foreseeable that persons waiting for a security guard in order to break into premises, or persons already in premises, could accost a security guard. Further, a security guard could be stuck in a lift or otherwise stuck in premises (e.g. a self locking internal door). No system was in place, as at 7 and 8 April 2001, which dealt with the lack of safety inherent in such situations. The evidence before the Court is that there is now in place a regular safety call to each security officer, to check on his or her welfare and whereabouts. 76 The existence of a different system at this point in time does not render the previous system negligent: for which principle now see s 5C of the Civil Liability Act 2002. But it is evidence of a simple, inexpensive means of checking on the safety of personnel. KSS was negligent in not implementing such a system on 7 and 8 April 2001. 77 However, the psychiatric injury had already been precipitated by March 2001, by which time, according to that which Mr Miskovic told Dr Kossoff, Mr Miskovic was already displaying the symptoms of OCD and MDD. As a consequence of that finding, the want of care associated with the absence of a system of regular welfare calls did not cause the injury about which Mr Miskovic complains. The negligence was not a necessary condition of the occurrence of the harm: s 5D(1)(a) of the Civil Liability Act; and see also Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 84 ALJR 19 at [45] et seq. There will be judgment for the defendant on the statement of claim. 78 It is necessary to deal more fully with the factual causation issue. Even if the test on causation were not defined by the Civil Liability Act, there would be a want of causal connection. 79 Even though there is a confluence of the lift incident, the want of care associated therewith, and the inability to work, the Court does not, and cannot, infer a causal link or determine that there is a right to be compensated under the common law. This is despite the circumstances that Mr Miskovic was first unable to work on 9 April 2001, and effectively unable to work thereafter (i.e. immediately after the lift incident). This is because the expert medical evidence does not suggest that the lift incident was the cause of his disability. And it is not for the Court to diagnose the plaintiff (even if it were capable of so doing). 80 On the contrary, as explained at [77] above, the evidence is that the psychiatric illness was manifest well before 7 April 2001. If the lift incident was "the last straw" it was not, on the evidence, a substantial contributing factor. To some degree that is contrary to expectation. Notwithstanding the earlier manifestation of the symptoms, Mr Miskovic continued to work. It was only after the lift incident that Mr Miskovic ceased to have the capacity so to do. 81 There are two reasons that, unfortunately, the forgoing must, in my view, prevail, other than the absence of medical evidence establishing a causal link. 82 First, even if there were evidence of some causal link, because of the earlier manifestation of the psychiatric illness, either the allowance for vicissitudes would be so high as to render insignificant the damages that would otherwise have been awarded, or, more accurately, the contribution of the incident to the injury would not have been substantial. 83 Secondly, the existence of a safe system involving security or welfare calls to Mr Miskovic at regular intervals would not have prevented Mr Miskovic from being trapped in the lift. It would (assuming the regularity of such calls was less than each 3½ hours) have shortened the period during which Mr Miskovic was in the lift, but it would not have eliminated it. (The likelihood (probability) is that a call would not have occurred immediately before being trapped and the time in the lift may have been quite short.) Given his sense of panic and the perception that the lift had been sabotaged, a lesser period (no matter how short) in the lift would not, it seems, have ameliorated the injury. Insurance cross-claim 84 The cross-claim deals with the liability of the nominal insurer under the policy of insurance for the claim under the Trade Practices Act (Cth). The terms of the policy are, relevantly, as follows: " What the Insurer is liable for 3. The insurer will indemnify the Employer against all of the following sums for which the Employer becomes liable during or in respect of the period of insurance: (a) compensation that the Employer becomes liable to pay under the Act to or in respect of any person who is a worker of the Employer (including any person to whom the Employer is liable under section 20 of the Act); (b) any other amount that the Employer becomes liable to pay independently of the Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State, a Territory or the Commonwealth or a liability arising under the law of another country) for any injury to any such person (not including liability in respect of an injury, suffered by a person other than such a worker, arising out of any rescue or attempted rescue); (c) cost and expenses incurred with the written consent of the Insurer in connection with the defence of any legal proceeding in which any such liability is alleged. The Insurer will not indemnify the Employer for the Employer's liability for GST payable on the settlement of a claim." 85 The point of contention is the construction of paragraph (b), recited above. On one view, given that I have held that there were no relevant representations and no relevant reliance on any such representation, the issue does not arise. 86 Relevantly, the policy requires the insurer to indemnify the employer, KSS, for any sum for which the employer becomes liable, independently of workers compensation legislation, "for any injury" to Mr Miskovic "(not including liability in respect of any injury, suffered by a person other than such a worker, arising out of any rescue or attempted rescue)". 87 If KSS were to have made a representation, and if Mr Miskovic were to have relied upon it, KSS would be liable under the Trade Practices Act (Cth). But would KSS be liable for the injury? KSS would be liable for the damages arising from its misrepresentation. If, for example, Mr Miskovic were to have relied on such a representation, taken up employment, realised that he had been misled and resigned, his damages would be measured, not by the injury, but by the ordinary principles of measuring statutory or contractual damages. It may have been reasonable notice, or a more extended notice. 88 The injury that occurred is not that for which KSS would have been liable. The injury, if injury were to occur, would only be the measure of damage, and liability would arise only because KSS would be liable for the damages arising from the misrepresentation. In other words, the claim under the Trade Practices Act (Cth) and any liability that arises therefrom, is not a liability to pay "for any injury", but a liability to pay for damages arising from a misrepresentation, which, in this case, would have been measured by the injury to Mr Miskovic. 89 Further, any liability under s 53B of the Trade Practices Act (Cth) arises in relation to employment "that is to be, or may be, offered", and arises for "conduct that is liable to mislead". 90 As a consequence, "liability to pay for any injury", if any, under s 53B, is to a person not in that person's capacity as a worker, but in the capacity as a former offeree of work. The insurance policy indemnifies the Employer for compensation to a worker, in the capacity as such. 91 The source of the indemnity is the liability to a worker in that capacity, not to a person to whom the Employer, KSS in this instance, offers work in their capacity as an offeree, or in their capacity as a representee. 92 The opinion of the majority in Concrete Constructions (NSW) Pty Ltd v Nelson, supra, is not inconsistent with that approach, because s 52 establishes a liability to any person to whom, in trade and commerce, a representation is made. The liability under s 53B of the Trade Practices Act (Cth) is confined to a particular class defined otherwise. In construing the Policy, it is clear that it indemnified liability for injury to workers, in their capacity as such. 93 I would find for the cross-defendant on the cross-claim. Damages, Conclusion and Orders 94 It is, of course, unnecessary, strictly, to calculate damage. Nevertheless, I should express some view of the damages, if they were to be awarded. I would assess general damages at $275,000. I accept Dr Parmegiani's assessment that this is one of the worst cases of psychiatric injury. I would assess vicissitudes at 35%, given the predisposition and the possibility of another non-compensable injury of the same kind. Further, I would assess a need for future paid care at four hours per day. I would allow for significant continuing psychiatric treatment and the other out of pocket expenses, as claimed, and for fund management. I find, as earlier stated, the employment continues to be causative and otherwise accept Dr Parmegiani and Dr Nick Ratcliffe of Total Care Costings. All of the other damages are agreed, or agreed in principle and accord with the plaintiff's schedule (as adjusted by the foregoing), or easily able to be calculated from the foregoing. 95 As to costs, I consider that 80% of the costs of the defendant concerned the proceedings on the statement of claim and 20% concerned the cross-claim. Further, it is inappropriate for Mr Miskovic to be liable for two sets of costs. However, I will hear the parties further, if they so desire, on the question of costs, including any special order for costs. Further, if the parties need it, the Court will grant leave to the parties for a full assessment of the damages, rather than a statement of the conclusions, which the Court has set out above. 96 The Court makes the following orders: (i) Judgment for the defendant against the plaintiff; (ii) Judgment for the cross-defendant on the cross-claim; (iii) The plaintiff shall pay 80% of the costs of the defendant of and incidental to these proceedings, as agreed or assessed; (iv) The cross-claimant/defendant shall pay the costs of the cross-defendant of and incidental to these proceedings, as agreed or assessed; (v) The parties be granted leave to seek any different or special order for costs within 14 days of the date hereof and to seek a full assessment of the damages that, but for the determination on liability, would have been awarded. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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