In Karen Aden Willett v Victoria [2013] VSCA 76 the Court of Appeal was required to determine the question of whether a jury verdict on damages was "not open" or "not reasonably open" on the evidence and whether a jury finding of contributory negligence was open on the evidence.  

 

Facts

The plaintiff joined Victoria Police in 1994, she was promoted to Senior Constable in 1998 and in 2004 she joined the South Melbourne Criminal Investigation Unit (CIU) as a Detective Senior Constable.

The plaintiff alleged from her first day in the CIU she was subject to bullying and harassment by her direct supervisor and other officers in the CIU.

The plaintiff's allegations included, amongst other things, being given duties below her rank, being called the 'black widow', being asked if she had slept with the boss to get her job, receiving harassing phone calls whilst on maternity leave and exclusion from work social events. The plaintiff suffered panic attacks and finally, on 27 June 2006, she broke down and had not been able to work since. The plaintiff's treating doctors diagnosed her with Major Depressive Disorder and anxiety, agoraphobia, depressed mood and panic disorder. She was not fit for employment. Her treatment included Zoloft 150mg, Seroquel 100mg and Valium 15mg.

Dr Shan, who saw the plaintiff on behalf of Victoria Police, concluded the plaintiff suffered from mild to moderate Major Depressive Disorder and, while not fit to return to work as a Police Officer, she did have a capacity for alternative part-time work and eventually full-time work.

The plaintiff had been a fit and active person before her injury. She left the CIU as a 'broken horse' with nothing left to give. She dropped from 48kgs to 38kgs, was depressed, picked at her hands until they bled, was afraid to come into contact with the police and wore disguises when she went out in public. In April 2011 she took an overdose of Diazepam and was admitted to Melbourne Clinic.

The Decision at First Instance

At first instance the jury found the State of Victoria was negligent in causing the plaintiff's injury and that $108,000 represented a fair and reasonable amount for pain and suffering damages. The jury also found damages should be reduced by 50% for contributory negligence.

The Appeal

The plaintiff appealed the decision at first instance and the Appeal was heard by Their Honours Osborne, Tate and Priest JJA.

The plaintiff, now 40 years old, submitted she had been affected by Major Depressive Disorder from her early 30s, her condition had taken away her chosen career, she had suffered a significant loss of enjoyment of life and the medication she was required to take was incapacitating. Tate and Priest JJA identified the Court had the demanding task of determining whether on the available evidence a jury acting reasonably could not have arrived at the conclusion it did, and as such, could only have done so in error of law.

The defendant submitted the plaintiff had a vulnerable personality and suffered psychological injury due to unreasonable feelings of rejection. The defendant endeavoured to show, by calling the evidence of Dr Shan and surveillance, that there were inconsistencies in the plaintiff's description of the impacts of her ongoing psychological condition and this indicated an exaggeration of pain and suffering.

Inadequacy of Damages

Tate and Priest JJA concluded the surveillance footage did not show behaviour inconsistent with the evidence the plaintiff had given nor the basis on which Dr Shan had made his diagnosis. Being able to engage as a mother and go about some ordinary daily tasks was far removed from the demanding context of the workplace of a career police officer, which required problem-solving skills, mature assessment and commanded respect and recognition from the public.

Absent the bullying and harassment the plaintiff had every reason to believe she would continue to thrive in policing. The plaintiff had lost her chosen career and all the dimensions that career offered her. The loss of enjoyment of life experienced by the plaintiff was considerable and coupled with her pain and suffering and high dosages of anti-depressant and anti-anxiety medications put her case in the severe range.

On this basis Tate and Priest JJA concluded the damages awarded were so small as to be unreasonable, so inadequate no jury could reasonably have awarded them and out of proportion to the severity of the circumstances of the case.

In the minority on this point, Osborne JA took a different approach and concluded it was open to the jury to accept or reject aspects of her evidence as unreliable or exaggerated, the expert opinion, whether she had a capacity for part-time employment and whether the surveillance depicted her participating in a relatively active life.

Osborne JA concluded each level of enquiry had to be approached by considering the evidence most favourable to the defendant (Butcher v Australian Tartaric Products [2009] VSCA 303) and on this basis it could not be concluded the award of damages was not reasonably open to the jury.

Contributory Negligence

The evidence led in relation to contributory negligence was that plaintiff should have made an informal or formal complaint. However it was highlighted the fatal flaw in the defendant's case was, even if the plaintiff had made complaints before those she made in 2006, there was no evidence she would have been removed from the unit in which she was subject to harassing and bullying behaviour or this would have alleviated her position and avoided injury.

On this basis Osborne JA, with whom Tate and Priest JJA agreed, concluded a finding of contributory negligence was not open.

Disposition

The Appeal was allowed in full.

The plaintiff in her Notice of Appeal had sought judgement to be entered for an award of damages or alternatively the matter be remitted for hearing. Their Honours concluded it would be in error for the court to remit the matter for a second trial given the plaintiff had attempted suicide. In the specific circumstances of the case, it was decided the Court ought to make an award of damages as it had the discretionary power to do under Section 14(1) of the Supreme Court Act 1986.

Their Honours concluded that the plaintiff be awarded damages of $250,000.

Implications

The Court of Appeal will not shy away from overturning a jury verdict, despite considering the evidence in the most favourable light to the defendant, where the damages awarded clearly do not take into account the severity of the circumstances of the case.

In order for there to be a finding of contributory negligence, the defendant must be able to point to evidence of the plaintiff’s behaviour that can reasonably be said to have caused the injury.

The Court of Appeal is likely to substitute an award of damages rather than remit a case where:

  • the only issue is pain and suffering damages;
  • the evidence has been analysed by the Court in detail in determining the adequacy of the jury’s assessment, and as such, the Court is in a good position to assess damages;
  • the plaintiff is psychological vulnerable; and
  • there is a need for finalisation of the litigation.