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IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
Not Restricted
No. S CI 2011 5947
WENDY LORRAINE SWAN
Plaintiff
v
MONASH LAW BOOK CO-OPERATIVE
(trading as LEGIBOOK)
Defendant
---
JUDGE:
DIXON J
WHERE HELD:
MELBOURNE
DATES OF HEARING:
16-18, 22-24, 26, 30 APRIL, 1-3, 6-8 MAY 2013.
DATE OF JUDGMENT:
26 JUNE 2013
CASE MAY BE CITED AS:
SWAN v MONASH LAW BOOK CO-OPERATIVE
MEDIUM NEUTRAL CITATION:
[2013] VSC 326
--TORT – Negligence – Duty of care – Psychiatric injury – Workplace bullying – Scope of
duty of care – Reasonable foreseeability – Employee complaints to employer of bullying
conduct by another employee (manager) – Whether breach of duty - Employer failing to act
on complaints.
ACCIDENT COMPENSATION - Personal injury – Psychiatric illness suffered in the course
of employment – Workplace bullying – Duty - Negligence – Damages.
---
APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Ms K. Judd SC with
Mr Mark Carey
Slater & Gordon Ltd
For the Defendant
Mr R. K. Meldrum QC with
Mr Conor O’Sullivan
Wisewould Mahoney
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TABLE OF CONTENTS
Introduction ......................................................................................................................................... 1
Issues in the proceeding.................................................................................................................... 1
The liability evidence ........................................................................................................................ 2
Background .................................................................................................................................... 2
Evidence and credibility............................................................................................................... 4
Events from the defendant’s perspective................................................................................... 7
General observations .................................................................................................................. 7
The plaintiff’s complaints and Legibook’s response ................................................................... 9
What occurred between the plaintiff and Mr Cowell. ........................................................... 19
General observations ................................................................................................................ 19
Specific incidents...................................................................................................................... 23
The breakdown ............................................................................................................................ 41
Expert psychology evidence ........................................................................................................... 51
Evidence of Ms Mellington ........................................................................................................ 52
Evidence of Dr Wyatt.................................................................................................................. 56
Liability findings.............................................................................................................................. 60
Mr Cowell’s conduct ................................................................................................................... 60
Did the defendant breach a duty of care? ................................................................................ 62
The applicable principles .......................................................................................................... 62
Findings about breach of duty.................................................................................................. 68
Brown v Maurice Blackburn Cashman.................................................................................... 75
Causation ...................................................................................................................................... 78
The quantum evidence.................................................................................................................... 79
The course of treatment and assessment of the plaintiff’s injury......................................... 79
The plaintiff’s evidence .............................................................................................................. 96
Quantum findings ............................................................................................................................ 98
Consequences of the injury ........................................................................................................ 99
Pre-existing susceptibility ........................................................................................................ 100
Capacity to work ....................................................................................................................... 101
Vicissitudes................................................................................................................................. 101
Assessment ...................................................................................................................................... 103
Pecuniary loss ............................................................................................................................ 103
Pain and suffering ..................................................................................................................... 103
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HIS HONOUR:
Introduction
1
The plaintiff claims damages for pain and suffering and pecuniary loss from the
defendant for a psychiatric injury that she has sustained in the course of her
employment by the defendant. She alleges that the negligence of the defendant caused
that injury by exposing her to an unsafe workplace in which she was subject to
bullying, harassing, and intimidating conduct.
2
The defendant, Legibook, operates a specialist law book co-operative from the
basement of the law building at Monash University. At relevant times it employed
two permanent part time workers, a manager and an assistant. The plaintiff, Wendy
Swan, was employed as the assistant between 2002 and October 2008. Mr Kriston
Cowell was employed as manager between 2002 and 2007. He was alleged to be
responsible for the bullying, harassing and intimidating conduct.
3
As a co-operative, Legibook was a not for profit organisation that sold law books at
discounted prices to law students. It was operated by a board of directors comprising
current and former students at Monash University Law School. The chairman of the
board at relevant times was Mr Paul Somers. Mr Somers had been a director of
Legibook since 1997, first as a law student and, from 2001, as a solicitor.
Issues in the proceeding
4
The following issues remain to be resolved in this proceeding:
(1)
was there conduct on the part of Mr Cowell that constituted bullying, or
harassment, or abuse, or humiliation, or intimidation of the plaintiff
(‘Mr Cowell’s conduct’).
(2)
By reason of the occurrence of Mr Cowell’s conduct, was there conduct on the
part of the defendant that was in breach of the defendant’s duty of care (as
alleged and admitted in paragraph 4 of the pleadings) in that the defendant
failed to take reasonable care for the safety of the plaintiff in her employment
by the defendant?
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(3)
In what particular respect, having regard to the allegations in paragraph 5 of
the statement of claim, did the defendant fail to exercise reasonable care (‘the
conduct in breach’)?
(4)
Was any conduct in breach a cause of the plaintiff’s injury?
(5)
What is the nature and extent of the plaintiff's injury and her disabilities?
(6)
Did the plaintiff suffer pre-existing psychological problems that are a cause of
her injury, and if so, to what extent?
(7)
In what sum should the court assess the plaintiff’s pain and suffering damages?
(8)
What is the plaintiff's capacity to work?
(9)
In what sum should the court assess the plaintiff’s:
(a)
past loss of earnings; and
(b)
future loss of earning capacity?
The liability evidence
5
I will deal separately with the evidence about what happened and the evidence of its
effect on the plaintiff. On liability issues, the significant evidence came from the
plaintiff, Mr Cowell, and Mr Somers. Also relevant is the evidence of Mr Jensen, who
was initially employed as a workplace mediator, but later investigated, and reported
on, the plaintiff’s complaints. I will start with my findings on some general
background matters.
Background
6
The plaintiff, who is married, was born on 15 May 1954. She qualified as a dental
nurse after leaving school but spent much of her working life self-employed in
businesses run with her husband. In July 2002, she successfully applied for a position
as a retail-sales assistant with Legibook. There was no formal contract of employment
or applicable job description. The advertisement to which she responded stated that
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she would be primarily responsible for book sales and customer service. Other
responsibilities would include managing returns of unsold stock, administering the
co-operative’s membership database and otherwise assisting the manager alongside
whom she would work.
7
Her position was permanent part time and although the hours of work varied during
the course of the year, particularly during the peak periods at the beginning of each
semester, the plaintiff ordinarily worked Mondays, Tuesdays and Thursdays from
8.30 am to 1.30 pm and Wednesdays from 12.30 pm to 5.30 pm. During the initial
interview, at which Mr Cowell was present, the board members told the plaintiff that
she was employed by the board to work side by side with the manager who would
run the business as directed by the board.
8
The business operated out of small, cramped quarters in the basement of the Law
Department building at Monash University. Legibook used one computer to operate a
financial management and accounting software system, Quicken, and a member’s
database program. The computer had some password controls. Although a generic
password known to all was used for initial access to the computer, Mr Cowell had his
own password for access to Quicken and the plaintiff used a personal password to
access the membership database files. In 2002, the board was keen to modernise the
office and create and update its membership as a computerised database. The board
specifically allocated the latter task to the plaintiff.
9
Both Mr Cowell and the plaintiff served customers, originally using a manual till.
Later, Legibook installed point-of-sale tills, networked with a new computer. Usually,
Mr Cowell would reconcile the day’s takings and either he or the plaintiff would
attend to the banking.
10
Over the first eight months of her employment, the plaintiff spent a significant
proportion of her time at the computer creating the new database of 12,000 members.
11
Stock mostly arrived at a loading bay at the far end of the law building and was
transported to the bookroom by a trolley. It was stored on shelving and stacked on
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available floor space. Legibook transacted most of its business at the start of each
semester when students acquired their textbook and lecture notes for the subjects they
were about to study. Following the initial lectures in any particular subject, students
attended the bookroom to purchase what they needed or were recommended; hence
the episodic nature of the bookselling. To assist, Legibook employed additional casual
staff at this time. For the employees, the initial weeks of each semester were more
stressful than the remainder of the working year.
Evidence and credibility
12
Mostly, there was not a great deal of conflict in the evidence, particularly between the
plaintiff and Mr Somers. Mr Somers had a habit of contemporaneous note taking and
often had no recollection beyond that recorded in his notes or emails. I found each of
Mr Somers and Mr Jensen to be truthful witnesses who mostly resisted any
temptation to reconstruct a recollection of events when memory or note taking may
have failed them.
13
There was direct conflict between the evidence of the plaintiff and Mr Cowell. I
preferred the evidence of the plaintiff to that of Mr Cowell whenever there was
conflict between them that could not be resolved by reference to other evidence for
the following reasons.
14
The physical environment at Legibook was far removed from that of the courtroom in
which the protagonists recounted the relevant events. I watched and listened carefully
to the evidence of each of the plaintiff and Mr Cowell, fully expecting that the manner
in which each of them would interact with counsel would not provide direct guidance
about their interactions with each other in the workplace. In some instances, it was the
fact of what occurred between the plaintiff and Mr Cowell that was significant. In
other instances, what was done or what was said was, of itself, relatively innocuous
and its significance arose from the tone and body language of the speaker or the
perception of an event that was experienced by one party or intended by the other.
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15
Because the gravamen of many of the plaintiff’s complaints about Mr Cowell’s
conduct lay more in the demeanour used, the vocal tone employed and the body
language that accompanied the stated words or activity, than in the words or
activities themselves, the evidence given in court was not necessarily determinative,
and there were a number of other important considerations.
16
The affect of the plaintiff, which was described by psychiatrists reporting on their
mental status examinations, was evident during the course of the plaintiff’s evidence.
This was a matter that I considered in my evaluation of her evidence from the witness
box. The psychiatric assessment of the plaintiff was that she suffered ‘a breakdown’ in
July 2007. I am satisfied that she presented differently in the workplace befo re that
breakdown. Mr Somers described her as having a ‘bubbly personality’, and a capacity
to converse enthusiastically across a range of topics, not limited to issues at work. The
plaintiff’s husband also described the plaintiff, prior to July 2007, as bubbly and lively,
caring, and readily able to relate to, and converse with, family, friends and
acquaintances alike.
17
The change in the plaintiff’s presentation since July 2007 was relevant to considering
both her presentation in court and the defendant’s evidence of his perceptions of her
conduct in the bookroom. Secondly, her capacity to confidently present her
recollection of events in the stressful environment of a court room was affected by her
injury. Third, I was satisfied that she has recounted the circumstances that occurred at
work on many occasions out of court, including, first when informing Mr Somers of
her concerns at the time, second when recounting events to lawyers, third, when
answering the inquiries of medical treaters and examiners.
18
I did not find her recall in the witness box to be complete . I have made some
allowance for the plaintiff’s present disability, which has affected her since 2007. I
carefully evaluated various out of court statements; as such statements although
admitted into evidence were not always adopted as true from the witness box. Mostly,
contemporaneous emails and letters were adopted by witnesses as were some other
documents that provided histories. Various statements and affidavits that were used
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to instruct experts were tendered without objection. These documents are evidence of
the facts they record. The area of contention lay in statements recorded in medical
reports that were mostly read to the court by agreement. Commonly, the plaintiff
accepted that she discussed her work circumstances with doctors and others without
any present recall of what she said. She did not adopt the histories recorded by
doctors as complete, and could not dispute inconsistencies.
19
I was invited by the defendant to accept that the recorded histories accurately
reflected what the plaintiff told the author at the time of examination or consultation.
This submission was directed at inconsistencies and incompleteness in the recorded
histories. The singular example was the absence of any reference to the book throwing
incident in all of the medical histories, supporting a submission that I will discuss in
due course that the plaintiff was not a credible witness and that the evidence of Mr
Cowell is to be preferred.
20
In the absence of oral evidence from the authors, I decline this invitation, in its
absolute sense, for two reasons. First, authors of medical reports balance a number of
considerations when recording histories, ranging from their interest in peripheral
detail to time pressures. They receive earlier reports that usually contain histories that
may, or may not, be copied, at least in part. The reliability of the note taker cannot be
assumed and the words of the plaintiff cannot, with confidence, be fully identified
when an author has not been cross-examined about the circumstances of the
consultation and the compilation of the report. Second, the plaintiff is also affected by
various considerations when giving a history. Was the history elicited by leading
questions, limiting the scope of revelation of all detail? Was the plaintiff’s recall
affected by any of her medical or psychiatric conditions? Was the plaintiff medicated?
In the present case, it is clear that the plaintiff experienced unacceptable side effects
from depression medication and changed prescription several times. It is unsurprising
that the plaintiff no longer recalled all of the detail that is recorded by others. I am
satisfied that the plaintiff was a truthful witness endeavouring to do her best to
recount the minutiae of events over a five year period.
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21
Mostly there is no reason not to accept detail given in histories that was unchallenged
or to conclude, from the failure of the plaintiff to give evidence in court, of some
particular detail, that it did not occur. When evidence of a previous representation by
the plaintiff giving that detail has been admitted, s 60 of the Evidence Act (Vic) 2008 is
enlivened, having the effect that a history taken by a doctor and recorded in a medical
report is evidence of the facts so recorded.1 I have had regard to that source of
evidence in making my findings. 2 I am satisfied that, mostly, the medical, and other
histories in evidence support the plaintiff. Where they do not, inferences that are not
adverse to the plaintiff’s credit are open.
22
I am satisfied that, unlike the plaintiff and Mr Somers, when Mr Cowell could not
recall matters he was more likely to reconstruct events in his favour. Mr Cowell did so
on two occasions of particular significance, which when weighed with the matters
generally noted, caused me to reject his evidence, although at times in the witness box
he appeared confident and consistent in his recounting of events. I reject his denial
that the book throwing incident occurred, for reasons that I will explain in context
when dealing with the evidence of that incident. I also reject his version of the events
on 23 and 24 July 2007. I will first deal with matters as they occurred between the
plaintiff and the board.
Events from the defendant’s perspective
General observations
23
First, I make some general findings. I find that from the outset the board engendered
the plaintiff’s belief that she was Mr Cowell’s colleague, an employee of equal worth,
entitled to be treated with proper respect and dignity. It did so because it genuinely
held that view until at least July 2007. The job advertisement stated the assistant
would work side by side with the manager, which was confirmed in the interview for
the position. The board told the plaintiff that in the two employee bookroom, the
board would give directions primarily to the manager on how Legibook was to be
1
2
Guthrie v Spence [2009] NSWCA 369, at [75].
Compare State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors [1999]
HCA 3; (1999) 73 ALJR 306, at [63], [94], [139].
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run. The plaintiff would have primary responsibility for upgrading the membership
database. Legibook had a very old computer and very old systems, a legacy from the
previous long standing manager, and the board was going to modernise. Both the
plaintiff and Mr Cowell were to be responsible for implementing a better modernised
service to co-operative members.
24
I am satisfied that the plaintiff, while believing that to the defendant she and Mr
Cowell were colleagues of equal worth, also always understood that Mr Cowell was
the manager and she was the assistant. She never aspired to be the de facto manager. I
accept that in self-employment she had worked seven days a week for a long time and
had previously engaged in managerial and administrative roles. In contrast to her role
in the family business, the plaintiff intended, and tried, to go to Legibook, do her job
to the best of her ability and then go home and forget about it. In that context, she
accepted that the board was open to suggestions from her about the operation of the
bookroom. The differing notations of this status – was Mr Cowell a manager or a
colleague – made by medical practitioners taking histories, of which much was made
at trial, is in this sense explicable.
25
The plaintiff was invited to make suggestions to the board about matters concerning
workplace contracts, practices, and processes in the operation of the business of the
bookroom, to attend board meetings, an annual dinner of the co-operative, and social
dinners with the directors. Each was an occasion for the processes and operations of
the bookroom to be discussed, and the plaintiff was never discouraged from
participating in such discussions. Mr Cowell did not appreciate that the board had
extended that invitation to the plaintiff as I will explain. As time went on, Legibook
and its directors demonstrated to the plaintiff in various ways that she was regarded
as a valuable employee who contributed to the running of Legibook and a colleague
of Mr Cowell, of equal worth.
26
The defendant invited me to find that the plaintiff stepped above her role as an
assistant and meddled in Mr Cowell’s role as manager, which entitled him to respond
with instruction. The inference to be drawn was that any stress that followed on this
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conflict came as a result of the plaintiff’s personality and attitude and was not
occasioned either by Mr Cowell’s conduct or the workplace maintained by the
defendant. I do not accept that this is an accurate characterisation of what occurred . I
am satisfied that there was discord between the board’s approach, valuing
constructive suggestion from the plaintiff, and Mr Cowell’s more authoritarian
managerial style. For the plaintiff, this discord was unsettling and confusing,
productive of workplace stress. The form and nature of Mr Cowell’s reaction to that
stress was inappropriate, as I will explain. That discord did not entitle Mr Cowell to
be sarcastic, belittling, rude and hostile in his attitude to the plaintiff. I consider the
circumstances that developed followed from the board’s failure to have proper
position descriptions and workplace policies in place and to properly monitor
relations between Mr Cowell and the plaintiff. Such monitoring was likely to have
revealed to the board that relations between its two employees were not as they
would have liked. It was not until after the first pressure period in the bookroom, the
opening weeks of the first semester of 2003, that the board first learned of conflict
between Mr Cowell and the plaintiff.
The plaintiff’s complaints and Legibook’s response
27
On 19 March 2003, the plaintiff telephoned Mr Somers and informed him of what he
described to other board members as 'conflict’ that she was experiencing with
Mr Cowell. She told Mr Somers that Mr Cowell’s conduct was very strange, that she
had concerns about it, and that on one occasion Mr Cowell threw a book at her. On
another occasion he threw a calculator. She described him as moody. She considered
that he was suspicious that she was trying to move into a managerial role in the
bookshop. Mr Cowell appeared to treat Legibook as his personal toy, but he made
mistakes in its operation such as forgetting to pay her on time. She helped cover up
these mistakes by not complaining. Mr Cowell neither acknowledged her assistance
nor apologised for his mistakes. The plaintiff told Mr Somers that temporary staff had
informed her they were surprised by comments that Mr Cowell had made to her. She
told Mr Somers that she enjoyed her job and wanted to continue to work at Legibook.
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28
Mr Somers promptly scheduled a meeting of the board.
29
The minutes of a confidential board meeting on 25 March 2003 record Mr Somers
relating the plaintiff’s concerns to members of the board, adding that he was awaiting
written particulars from the plaintiff. Significantly, the board minuted that
Mr Cowell’s behaviour could cause damage to the plaintiff, which is evident from the
observation recorded in the minutes that ‘the board and co-operative may be
vicariously liable for Kris’ behaviour’ and this ‘would include Workcover claims’.
30
The minutes record that the board was keen to be seen to be doing something about
the plaintiff’s complaint and discussed implementing written position descriptions.
The board had rightly identified their own lack of clarity in identifying the respective
roles of their employees as a factor in the plaintiff’s complaint. The board resolved
that violent behaviour in any form was not acceptable and if it was in fact taking place
the board should act to ensure that it did not continue. It resolved that three board
members, Mr Somers, Mr Wong and Mr Fowles, meet with the plaintiff to discuss the
substantive issues before a mediation between the plaintiff and Mr Cowell to be
conducted on 17 April 2003. No such mediation was arranged.
31
On 28 March 2003, in response to Mr Somers’ invitation to particularise her concerns
in writing, the plaintiff wrote to him raising three distinct issues. First, she submitted
a list of 17 topics which can broadly be described as employment or industrial
relations issues that she suggested might be discussed at board level. Second, she
raised five issues, described as ‘food for thought’ about improving the organisation
and future operation of Legibook’s business. Third, she addressed her concerns about
Mr Cowell.
32
The plaintiff stated that she had been working under very strained conditions for the
past months, that Mr Cowell was a person who provided information to her on a need
to know basis or not at all, and that she did not wish to feel threatened or
uncomfortable in her workplace. In particular, the letter stated:
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I do not wish to be continually subjected to sarcasm, hostility, rudeness, and
violent behaviour, threat of termination or lack of consultation within the
workplace.
The plaintiff concluded the letter by stating that she enjoyed her work and felt most
problems could be solved or managed to create a harmonious workplace. She added a
handwritten note to her letter that ‘things are much better with Kris at the moment, so
none of this is urgent’. This was a reference to the passing of the stressful busy
opening weeks of first semester.
33
Mr Somers promptly sought comment from board members to the plaintiff’s letter.
Mr Somers observed that 11 of the 17 items raised on the first issue related to
employment contracts. As the drafting of employment contracts had lapsed, he
proposed to revive it and have draft contracts available for board consideration.
Mr Somers observed that the remaining employment issues were appropriate for
discussion at board level.
34
During the trial it was suggested to the plaintiff that she had a tendency to
inappropriately interfere in matters that were not within the role of a retail sales
assistant, but there is no evidence of this attitude on the part of board members at any
time before July 2007. If it were the case, as Legibook maintained at trial, that the
plaintiff was exceeding the limits of her position, the board at no time encouraged the
plaintiff to a different view of her role as an assistant, such as that taken by
Mr Cowell. Not one member of the board commented that the plaintiff went beyond
her role in making suggestions to the board about employment and operational
issues. To the contrary, I am satisfied that the operation of the bookshop under its
former long serving manager was thought to be somewhat stagnant and the board
was not only open to, but encouraged, suggestions from its two permanent staff about
improvement of services.
35
Board members agreed with Mr Somers’ observation that ‘suggestions that staff at
Legibook are subject to workplace sarcasm, hostility, rudeness and violent behaviour,
threat of termination are unacceptable’. In particular, ‘violent behaviour’ needs
immediate clarification and, if warranted, some action. The board recognised that an
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appropriate initial response on its part was for written policies covering ‘these
matters’ to be put up in the office at Legibook. Mr Somers also proposed that, subject
to the board’s comments, he speak with the plaintiff acknowledging her letter,
clarifying her reference to violent behaviour and advising her of the steps the board
was taking.
36
One director, Mr Fowles, who gave evidence, agreed with the approach suggested by
Mr Somers noting that, ‘sarcasm, hostility, and rudeness’ might be difficult to
objectively establish but the alleged threat of termination and violent behaviour
should be clarified and investigated as quickly as possible. Another director,
Mr Esnault, who also gave evidence, agreed that the alleged threat of termination and
violence should be clarified and if seriously alleged by the plaintiff, her account
should be recorded. Yet another director, Mr Wong expressed concern that the
plaintiff is ‘continually subject to sarcasm, hostility, rudeness and violent behaviour’,
because she does not have to put up with any of that conduct. Mr Wong suggested
that the plaintiff should ‘highlight specific instances when she has felt bullied in
writing’.
37
From the start, the board recognised that the allegation was of bullying behaviour by
Mr Cowell, including occupational violence, that it needed to be investigated, that it
warranted a response, and that it could cause an injury to the plaintiff compensable as
a Workcover claim. In its initial response, the board did not contemplate that its
reaction in the circumstances was to be determined by the plaintiff’s choices.
38
On Thursday 3 April 2003, Mr Somers spoke with the plaintiff. He informed her about
the board’s response and process adopted and sought further details about the
reference to ‘violent behaviour’. The plaintiff confirmed that she was referring to the
book throwing incident which she had mentioned in their 19 March conversation.
Mr Somers recorded her response as being that she had asked Mr Cowell a question at
a time when he was stressed. The question concerned a book and he picked up a book
and threw it at her in a manner that required that she move out of the way to prevent
it striking her. The plaintiff told Mr Somers that it did not alarm her but did surprise
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her and that there had not been any other similar incidents. The plaintiff described
Mr Cowell as swinging into a bad mood and getting ‘crotchety’ when he is under
pressure. The plaintiff said that she felt she was able to work with it.
39
The plaintiff explained that the reference to ‘threat of termination’ was to an incident
that occurred in the first four weeks of her employment at Legibook, when Mr Cowell
apparently said words to the effect that ‘if you want to keep this job you must learn
the stock’.
40
The plaintiff made it clear that Mr Cowell’s behaviour was associated with the heavy
trading period at the beginning of the semester and that since matters had quietened
down Mr Cowell had been much better to work with. Mr Somers expressed his
expectation that by Easter the board would have put in place, on the shop floor,
written policies dealing with workplace conduct, harassment, etc. Mr Somers told the
plaintiff that any repetition of the book throwing incident would be likely to trigger a
formal response from the board whether or not she required it. Mr Somers asked what
the plaintiff expected, stating that the board could take some sort of disciplinary
measure or just take her comments on notice. The plaintiff responded: ‘Sit on it at this
stage and take the comments on notice’.
41
When asked, the plaintiff agreed that her expectations were being met and that she
felt more comfortable at Legibook. She told Mr Somers that a couple of weeks earlier
she had suggested to Mr Cowell that he could not keep running her down ‘like this all
the time’ and while he seemed surprised that she had spoken up, he had since that
time been courteous and easier to work with. Mr Somers asked the plaintiff to keep
the conversations confidential. I find that Mr Somers was somewhat relieved by the
plaintiff’s attitude, which did not require difficult decisions or immediate actions.
42
Mr Somers’ observations on his conversation with the plaintiff were accepted and
adopted by the board. I am satisfied that Mr Somers accurately recorded the plaintiff’s
contemporaneous complaint. Mr Somers firstly reported that the plaintiff did not
want specific disciplinary measures taken in relation to the book throwing incident as
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it was not something she felt was threatening. Second, Mr Cowell’s conduct had
improved recently after she had spoken to him, albeit briefly. Third, the incident of
greatest concern had been an isolated occurrence. Significantly, Mr Somers observed
that the lack of direction from the board to Mr Cowell seemed to have led to some
‘rather arbitrary and brusque work practices in his dealings with her’. Mr Somers
suggested that the position description process, employment contracts, a detailed
reporting structure and workplace policy implementation should be completed and
would be sufficient to address and control these concerns. He suggested that
Mr Cowell would modify his conduct appropriately if the board, of its own initiative,
made clear to him that appropriate workplace conduct in conformity with the board’s
written policies would form part of the board’s employee assessment process.
43
In the context of these observations, Mr Somers recommended that Mr Cowell’s
alleged conduct did not warrant any formal warning or further investigation but the
board should take the action that had already been proposed to address the plaintiff’s
complaints and should maintain an ongoing dialogue with both staff members
individually at regular intervals. Mr Somers concluded by reminding directors to look
‘both to our legal obligations as an employer and the necessity to provide a functional
workplace that accommodates all staff’. Mr Esnault, Mr Wong and Mr Fowles each
acknowledged and agreed with Mr Somers’ report and his recommendations to the
board.
44
The board failed to follow through on its recommendations and Mr Cowell remained
ignorant of its general and its specific concerns, a matter to which I will return in due
course.
45
Both Mr Cowell and the plaintiff were then invited to attend the next board meeting
on 16 April 2003.
46
The issue arose as to whether both Mr Cowell and the plaintiff should attend future
board meetings. Mr Somers was of the view that it would be preferable that both staff
should attend when staff attendance was appropriate. One purpose was to show
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Mr Cowell what the board was apparently not prepared to directly state to him; that
the board valued the plaintiff’s contribution and that Mr Cowell should not engage in
conduct that marginalised her.
47
I am satisfied that the board continued, during 2003, to desire a co-operative and
collegiate working environment between its two employees in the operation of the
business. I am satisfied that, following her complaint in April 2003, the board
encouraged the plaintiff to constructively contribute ideas and suggestions about the
operation of the business. As a result, although both the plaintiff and the board
recognised that Mr Cowell was the manager and the plaintiff was the sales assistant,
the plaintiff reasonably perceived, as the board intended, that she and Mr Cowell
were colleagues.
48
Despite its resolutions, the board never settled position descriptions for the two
employee positions or workplace behaviour policies. Although the board did not
consider a formal response appropriate, no informal investigation or inquiry was
conducted. Neither did the board or any of its members engage in any informal
contact or dialogue with Mr Cowell for the purpose of communicating the board’s
expectation of behavioural standards to apply in the workplace. It was not suggested
that it was impossible to do so without prejudicing the confidentiality of the plaintiff’s
complaint. There was no evidence that it ever occurred to any member of the board
that an informal chat with Mr Cowell about the board’s expectations in terms of the
relations between employees and the issues that generally arose from the plaintiff’s
complaint might have been a positive step to take.
49
Possibly, the board’s inaction is explained, but not excused, by Legibook’s
circumstances. Its directors were volunteers, some of whom were students and others
were ex-students who had embarked on legal careers. The organisation is a ‘not for
profit’ co-operative. However, I am satisfied that the board specifically contemplated
a risk that further or continuing conduct by Mr Cowell towards the plaintiff of the
type she described might breach the board’s legal obligations as an employer. The
board contemplated that if it failed to provide a functional workplace that carried the
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risk of damage and ‘workcover claims’ it would breach its obligation to provide a safe
workplace for its employees. In evidence, Mr Somers explained his perception of this
risk of damage:
What did you mean by that comment then, back in 2003? 3 ---That we need to
ensure that Kris's conduct isn't causing Wendy any damage.
And if it was? ---We'd have to deal with it.
Did you have any type of damage in mind?---Um – I don't recall, but physical
or mental damage are the two that are the obvious ones.
So you accept that as of this date, you were at least on notice about the
possibility of there being some mental damage, in your words, to one of your
employees? ---Yes.
And that if in fact conduct continued, that it was a very real possibility that this
could occur?---Um I'm not sure I agree with that.
All right, but you agreed that it was a possibility?---Correct.
You anticipated the possibility of it?---Correct.
I am satisfied that in this context the board contemplated more than an isolated
incident of occupational violence such as the alleged book throwing incident. It had in
mind more generic bullying conduct.
50
While referring to a need for investigation, the contemporaneous documents do not
dismiss the plaintiff’s complaint as unlikely, or question her veracity. At trial, the
defendant’s witnesses offered no plausible or compelling excuse for their failure to
act. The defendant pointed to the expressed desire of the plaintiff that her allegations
be taken on notice. The need for fairness to both employees by investigating the
situation seems to have been surpassed by acceptance of the plaintiff’s ‘choice’ to
accept the board’s conduct as appropriate. On any view, it was the easy outcome. But
that does not explain why they failed to follow through either with the process of job
position descriptions, employment contracts, workplace behaviour policies, employee
review and regular monitoring of the circumstances in the workplace or with an
informal response.
3
The transcript records the year as 2005, but the context, as understood by all, was to 2003.
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51
Despite the Easter deadline, in August 2003 the employment contracts were yet to be
formalised although some progress had been made towards job position descriptions.
At that time, while comforting the plaintiff that the imminent employment contracts
would reinforce the workplace obligations incumbent upon Mr Cowell, Mr Somers
again invited the plaintiff to comment on whether she was satisfied with the way the
board was addressing her earlier complaint. The plaintiff replied that she was happy
with the process and felt that her concerns had been met. She was referring to
employment contracts, clear job descriptions, and bullying/harassment policies. In
reality, the process with which the plaintiff was happy had again stalled and there
had not been, nor would there be, any communication between the board and
Mr Cowell that did, or could have, communicated to Mr Cowell the board‘s concerns,
as expressed to the plaintiff, that in its view any conduct that might constitute
bullying or occupational violence was unacceptable.
52
On 26 May 2004, the board resolved to convene annual ‘staff chats’ with each staff
member on separate occasions in May or June each year commencing in 2005. The
defendant’s board papers show that the staff contracts and a draft discrimination and
harassment policy were on the agenda in September 2004. There was no evidence of
any staff chats initiated by the board, save that the plaintiff stated that sometimes
Mr Esnault or Mr Somers would check in and ask how things were going. The
plaintiff would say ‘nothings really changed’. The directors would say they were
working on the contracts and would ask if everything was ok at the store. They did
not ask the plaintiff how she was feeling or if she was well and she didn’t volunteer
information to them on those occasions.
53
In April 2005, the plaintiff informed the board that tensions had re-emerged between
Mr Cowell and the plaintiff during the busy period at the beginning of semester. The
plaintiff informed Mr Somers that she had sought to address some of these problems
directly with Mr Cowell, describing him as not the easiest to talk to when under
pressure. Mr Cowell agreed with her desire to discuss her concerns at a private
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meeting. That meeting took place over dinner at a restaurant on 21 April 2005,
attended by Messrs Somers and Esnault.
54
The plaintiff told the directors that Mr Cowell mismanaged the ordering of texts and
students and lecturers were irate. She told them that the ordering was completely in
disarray and she was sad about how the beginning of semester had gone. She
informed them one casual employee left in tears after one day’s work.
55
The plaintiff said Mr Cowell admitted his mismanagement put staff under a lot of
pressure. That pressure put Mr Cowell in a bad mood that caused him to be
aggressive. He was nasty to her, to the temporary staff, to students and to lecturers
who inquired why stock was not available for their students. Mr Cowell told the
plaintiff to say in response to these inquiries that stock was coming in soon, and not
say texts were out of stock, as that response might draw the attention of lecturers to
his mismanagement, which created a risk that the directors would learn of it.
Mr Cowell expressed the pressure he was experiencing from the lack of stock by nasty
comments to the casual staff like ‘you're not working quick enough’, and ‘you have to
work out where these books are’. The plaintiff stressed that the angry, and aggressive,
manner in which she and the causal staff were spoken to was her particular concern.
The response that he required that she give to inquiries as to the availability of stock
made her feel like she was lying, and that students would think she was incompetent.
The plaintiff was upset and stressed by the atmosphere. She saw a casual staff
member cry because of the manner in which Mr Cowell spoke to her.
56
The board members told the plaintiff Legibook would implement policies to make
things work better. They said they understood she was very unhappy but that this
should not happen again as the board would put the contracts into place that would
clarify the employees’ roles. The plaintiff could not recall whether the board acted
after this meeting, but putting contracts in place and workplace policies in the
bookroom did not occur and why it did not remains unexplained.
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57
On 24 July 2007, during the busy period at the start of second semester, Mr Somers
received two phone calls. The first was from the plaintiff at approximately 12.45 pm
and the second was from Mr Cowell at approximately 1.10 pm. Mr Somers learned
that there had been major conflict between the plaintiff and Mr Cowell. The plaintiff
had left the work site in a distressed state complaining of workplace bullying and
Mr Cowell was accepting that he had allowed a situation to get out of control and had
responded inappropriately. The events of this day precipitated for the plaintiff a
breakdown exposing symptoms of depression and anxiety. About two months later,
Mr Cowell resigned as manager of the bookshop.
58
Apart from the failure to implement contracts, job descriptions and policies, there was
other evidence of dilatoriness by the board. The task of ordering new bags for packing
purchases for customers was taken from the plaintiff and Mr Cowell by a director, but
the board would then take 12 months to deal with that issue. The plaintiff could have
resolved that matter in a few weeks. The plaintiff perceived that although the board
were quick to say what would be done, they were slow to act, and patience was
required.
59
Before setting out my findings about the events in July to October of 2007, I will set
out my findings about what occurred between the plaintiff and Mr Cowell from 2002
to 2007.
What occurred between the plaintiff and Mr Cowell.
General observations
60
What is relevant when examining the impact of Mr Cowell’s behaviours is that there
developed a significant inconsistency between the plaintiff’s perception of the board’s
view of her worth to Legibook and her perception of Mr Cowell’s view of the same
matter. I have expressed my findings about the former. For evidence about the latter,
I now turn to the private dealings between the plaintiff and Mr Cowell. I am satisfied
that this inconsistency in perceptions, which was not of the plaintiff’s making, not
only contributed to the stress she experienced in the workplace, but magnified the
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stress that the plaintiff experienced. Mr Cowell’s conduct, when viewed in isolation as
individual events, can appear innocuous, but that perspective is inappropriate.
61
The plaintiff alleges that Mr Cowell created an intimidating atmosphere that he knew
she found oppressive. Mr Cowell knew that the plaintiff felt intimidated and
uncomfortable in his presence, but he didn’t care. Motive is irrelevant. Mr Cowell had
a particular attitude, flowing from his personality. It is probable that Mr Cowell either
positively disliked the plaintiff or simply did not care for her personal idiosyncrasies.
In the crowded, cramped bookroom, which was mostly a private space for the two of
them, Mr Cowell felt no compunction to treat the plaintiff with the level of respect
that is reasonably expected and commonly afforded between two colleagues working
together in such a space. It is out of personality conflict of this s ort in that confined
and isolated space, which cannot be fully analysed in a courtroom, that the repeating
pattern of Mr Cowell’s conduct towards the plaintiff became unreasonable.
62
I am satisfied that Mr Cowell’s conduct towards the plaintiff was initially
disrespectful, arrogant, and uncaring. Mr Cowell saw no need to be polite to the
plaintiff, but he did see a need to be controlling and to assert that he was in charge. I
accept the plaintiff’s evidence of receiving his anger and other bad moods . It was
evident that he has some need to manage these emotions. I think it probable that
Mr Cowell reacts poorly to stress and it will appear that a number of the critical
incidents occurred at times when he was under stress. I am satisfied that Mr Cowell is
well able to be even tempered and pleasantly disposed to others and commonly is. He
could do so in the presence of his employers. He did so in the witness box. There was
insufficient evidence for a finding that he is a person who is even tempered and
pleasantly disposed to others in all circumstances, as there was no evidence generally
of his character. I am satisfied that it was in the crucible of stressful times in the close
cramped bookroom that a need arose for Mr Cowell to manage his anger and his
moods, but he failed to do so appropriately.
63
Some general observations of the plaintiff’s character are also appropriate. The
plaintiff was perceived by Mr Cowell as being too voluble, chatty, or loquacious. She
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did not so appear in the witness box, but she has suffered a significant psychiatric
injury for the past five and a half years and is not the person she was. I accept that the
plaintiff was voluble, chatty, or loquacious at work. It was her natural character, well
intentioned and friendly, traits that had been reinforced by her years of employment
in caring occupations and retail service when self-employed. In the early days of her
employment this characteristic of her personality was evident. She asked questions,
made conversation and gave suggestions about how the shop should be managed.
This was a reflection of not just her personality but also her perception of what her
employer expected.
64
For his part, Mr Cowell didn’t care much for conversation with the plaintiff. He liked,
when not busy serving customers, to work in a room filled by talk radio. Mr Cowell
preferred to listen to 774 ABC local radio than to the plaintiff’s conversations. The
plaintiff said that she felt ignored from the beginning and I accept that a pattern
developed in their relations where Mr Cowell largely ignored the plaintiff. When he
did communicate with her, he did so in a manner she found discourteous and
unpleasant. I do not think that Mr Cowell lacked the social skills to be courteous and
pleasant to the plaintiff in the bookroom. What he lacked was the control that he
thought he was entitled to exercise over her conduct and performance at work. I am
satisfied Mr Cowell never embraced the notion that in the small and confined
workspace, operating the business of a co-operative, he and the plaintiff were
colleagues – equals – as the board perceived them to be.
65
The plaintiff is an intelligent and competent person, well able to readily adapt to the
simple business processes and procedures that were required to operate the Legibook
business. At trial something was sought to be demonstrated by a comparison of
Mr Cowell’s experience in managing larger retail bookstores in the United Kingdom
with the plaintiff’s want of experience in bookselling. The evidence did not d isclose
any respect in which Mr Cowell’s experience in the UK positively assisted the
development of Legibook or any respect in which the plaintiff’s experience in the
retail nursery industry, without bookselling experience, was, in any way, detrimental
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to Legibook. On the other hand, Mr Cowell’s experience was in much larger
workplaces where he had risen to be a manager of up to 50 employees. His
management experience appeared to be in a workplace relations setting that was far
removed from what he found at Legibook and his response to the plaintiff
undoubtedly drew on that experience. Mr Cowell was authoritarian and instructional.
He was the manager, she was the assistant. He neither needed to pay heed to her
suggestions nor explain his disinclination to give them any consideration let alone
implementation.
66
I have already noted that the defendant contended for a defence from these
circumstances. The personal interaction between the plaintiff and Mr Cowell was
merely personality conflict that arose from the plaintiff’s insistence that, although
Mr Cowell was ‘the manager’, they were colleagues. The plaintiff’s injury was caused
by the plaintiff’s failure or refusal to acknowledge the hierarchical stru cture in the
workplace. Mr Cowell perceived his role as controlling and instructional. He
managed the business, not just its assets, stock and procedures, but also its employees.
Mr Cowell was properly entitled to insist on acceptance of his role as the organising
force in the business and his decisions without question. The conflict that arose when
these different attitudes combined with the different natures and personalities of each
of them led to the plaintiff’s injury. I will, in due course, say a little more about this
contention.
67
One significant feature of the plaintiff’s character is that she likes things done
properly and naturally looks for more efficient or better ways of completing tasks,
perhaps something of a perfectionist or a little obsessive. This feature of the plaintiff’s
personality grated on Mr Cowell and, given that he had no capacity to enjoy casual
conversation with the plaintiff, was a significant part of their social interaction. What
resulted was that Mr Cowell’s private interaction with the plaintiff was not polite or
respectful and that became a pattern.
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68
Having made these general observations by way of introduction to the evidence of
specific incidents, I turn to the evidence of the plaintiff and Mr Cowell of such
matters.
Specific incidents
69
A couple of months after starting employment at Legibook, an incident occurred that
the plaintiff identifies as the start of Mr Cowell’s bullying behaviour. Mr Cowell
required that she memorise the booklists. In any particular semester, the law school
taught certain core and elective subjects and students purchased their required books
for their subjects at the start of the semester. It was not the task itself that was the
issue, although it was unclear whether memorising the booklists was ever any more
than ‘busywork’ allocated to an employee in a controlling way. Rather, it was the fact
of the task and the way the task was given to her. Mr Cowell said he would test the
plaintiff and would sack her if she didn’t demonstrate that she knew the booklists.
The plaintiff described the surprise imposition of this testing process under a threat of
dismissal as very stressful. Mr Cowell raised his voice and went red in the face when
he told her of the task – she described him as ‘nasty’ to her - and the plaintiff felt
incompetent without understanding why.
70
The plaintiff responded by taking the booklists home and studying it in her own time.
Her husband was moved to inquire about this activity, surprised at what she was
doing and why. I accept his evidence that she was quite surprised and considerably
upset by the threat to sack her. Mr Swan said it appeared that she had been ‘sort of
put down rather harshly’.
71
Mr Cowell’s evidence was that, in a quiet time in about November 2002, he politely
said:
This is an ideal opportunity to learn, you know, see if we can get you learning
exactly where everything is because, and these were my words, that in March,
when the semester started, you would be really struggling if you don't know
exactly where to lay your hands on each book because there'd be 100 people
waiting and all you've got to do is just grab all the books and bring them up
and serve them as quickly as possible.
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Asked what she made of the exercise he had set her, Mr Cowell said ‘Fine. I think she
picked up a lot out of the exercise ... she seemed to know where things were a lot
better than I thought before’.
72
Setting the task was not denied, but Mr Cowell put a different complexion on it.
Mr Cowell commenced employment with Legibook in July 2002 and had not yet
experienced a first semester rush in the bookshop. There was some reference to his
experience in bookshops in the UK that also sold academic titles but I am not
persuaded that that experience prompted the setting of the task. Mr Cowell
reconstructed this evidence, and I prefer the plaintiff’s account of the way in which
the incident occurred as the probable explanation of what passed between them.
73
What Mr Cowell’s version of this event reveals, in my view, is his attitude. He
thought the plaintiff needed an ‘opportunity to learn’ and he wanted to ‘see if we can
get you learning exactly where everything is’ and ‘she picked up a lot out of the
exercise’ and was ‘a lot better than I thought before’. Mr Cowell’s reconstructed
version shows his lack of respect and authoritarian attitude towards the plaintiff, but
what he actually did reveals much more. Mr Cowell employed a threat of dismissal.
He knew he did not have the right to dismiss his assistant. That he made that threat
implies that he did not care to work with the plaintiff. While he did, he intended to
assert control and power over her. It would be about 6 months later, and following
their first stressful first semester book rush, when the plaintiff learned that Mr Cowell
did not have the right to have made that threat. The assumption of that power of
dismissal by Mr Cowell thus affected the plaintiff for a significant time.
74
Before 2002 passed, there was a second incident. Again, for reasons that I will explain,
I accept the plaintiff’s version of this incident, although it is not found wholly within
her evidence from the witness box. In short, Mr Cowell threw a legal text book at the
plaintiff, who had to duck to avoid being struck on the head by it.
75
I have already set out how Mr Somers recorded the plaintiff’s description of the book
throwing incident in March 2003. In evidence, the plaintiff said:
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Can you explain the circumstances of that to his Honour?---I do not know. I this is something I've really blocked in my memory and even my psychologist
or psychiatrist hasn't been able to get this out. Um, all I remember is a book
being thrown and I ducked and I was horrified at the thought of someone
throwing something at me in the workplace ‘cos it had never happened before.
I'd never experienced this sort of, um, intimidation and bullying and
harassment.
In the book throwing incident were you having a conversation with him?--With - with the book throwing?
When he threw the book at you?---I can't remember. I really can't remember. I
--You saw the book coming?---I just saw the book coming and I ducked, and I
was just horrified. I can't even remember what it was over. There's just been so
many incidences.
… and if you hadn't have ducked, where was it - - -?---At my head.
- - - directed?---At my head.
you don't recall seeing him - seeing it come out of his hand I take it?---No. I
wasn't expecting it.
So why do you say it was thrown at you? What were the circumstances that
- - -?---Because he was - I was talking towards the counter and he was at the
counter and he just threw it directly at me. We were sort of straight in line with
each other.
How far away from him were?---Probably about 15 feet.
Did you have a conversation with him, why did you do that?---Oh, I would
have. There was a lot of times where I would say to him that's inappropriate
behaviour, I really don't like it. I was always a really strong woman. Sorry.
Sorry, I just missed what you said then, you're always a very?---I was always a
really very strong woman, and I thought that I would be able to handle him
without having to take it any further. I really like my job there and I thought I
would be able to handle someone who was abusive and bullying and I'd never
really experienced it before, but I still felt that I would be strong enough to
work in the situation and just go home and not have to worry about the place
when I got home. And I didn't want to have to leave the job because I loved the
job and I loved the campus and I loved the other people that I'd made friends
with there, and I didn't see why I had to be pushed out by a bully.
76
The absence of any mention of the book throwing incident of 2002 to medical
witnesses after 2007 is a matter of some significance. The defendant suggested that the
event did not occur at all, as Mr Cowell said in evidence, and that the absence of
reference to it in the recorded histories confirms Mr Cowell’s version of the event, but
I do not accept this suggestion. Significantly, the plaintiff said she had blocked this
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incident out of her memory, which may contribute to an explanation for her not
having mentioned it to doctors. In addition to the need to express care in dealing with
what is recorded by others who have not given evidence as being the plaintiff’s
explanation of events, in this case it must be borne in mind that the plaintiff was told
by the defendant before she ever saw any of these medical witnesses that her
complaint about her unsatisfactory working relationship with Mr Cowell had been
validated and she reasonably perceived that he had been dismissed. I will come to
those events in due course. One might infer that once told that the manager had been
dismissed by the employer for bullying, a medical witness might not be that
interested in recording the minutiae of a long ongoing pattern of behaviour. Thus a
single incident, from 2002, but the only incident of occupational violence, passes
unrecorded in her histories.
77
However, ample contemporaneous reference to the incident in 2003 precludes an
inference that it never occurred, from the failure of medical witnesses to record the
book throwing incident, as Mr Cowell contends. In particular, I accept Mr Swan’s
evidence that the plaintiff told him of the book throwing incident when it happened.
Mr Swan said that she told him that Mr Cowell was frustrated and threw a book at
her. She had to duck or the book would have hit her. He encouraged his wife to report
the incident to her employers because it was an assault. Mr Swan also volunteered to
speak directly with Mr Cowell. The incident was mentioned in the complaint to the
board in March 2003 and was also mentioned by the plaintiff to the expert
psychologists, Ms Mellington and Dr Wyatt.
78
Finally, I am satisfied that Mr Cowell’s denial of this incident was a false denial,
which is one reason why I generally prefer the evidence of the plaintiff.
When
initially opening the defence, counsel stated that ‘the bullying etcetera is denied’,
without detail about what Mr Cowell would say. That detail came in crossexamination of the plaintiff and her husband, by the defendant’s very experienced
senior counsel:
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Well if he says there's a discussion by you about where is X and he said in
effect, not throwing at you but tossing across, here's X?---That would be
unacceptable anyway.
Yes, but you're not saying it didn't occur in that fashion are you?---No, he
threw the book directly at me.
You're not saying it did not occur as a consequence of you asking the
whereabouts of the book that came towards you, are you?---I don't know why
the book came to me.
That's right, so you can't say it didn't occur that way?---Well he threw the book
at me.
So that if my learned [friend] said to me, ‘Where's the defendant's court book’,
and I threw it to land in front of her, that would be quite inappropriate in your
view?---No.
No?---That's not what happened.
But you don't have any memory about whether you did or did not have any
discussion about it, you didn't see him throw it?---But I know the book came at
my head, and I ducked - - Well that's what you say?--- - - - and I ducked.
The like suggestion was put to the plaintiff’s husband:
There was no question that it was a question by her about where is such and
such a book and instead of bringing it across and putting it down he tossed it
in her direction?---I - I very much doubt that was the case.
You very much doubt but you can't say that was not the case because you don't
recall what she told you, is that so?---No,4 because he threw it 15 metres or 15
feet from one side of the room to the other.
79
Then, counsel opened that Mr Cowell’s evidence about the alleged book throwing
incident would be that there was no such event, and the suggestion that the book had
been tossed in response to the plaintiff’s request fell away. Mr Cowell’s evidence was:
Now, did you at any stage ever aim deliberately a book that you threw at her
head?---No.
Was there ever a book thrown by you in her general direction?---No.
Did she ever have any discussion with you about any book being launched at
or near her?---No.
When is the first that you became aware that Mrs Swan alleged that you had
thrown a book at or in her general direction?---Probably when I was contacted
4
The transcript incorrectly records ‘Oh’ instead of No (at 441:23).
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by the lawyers prior to this case late last year, I think, is the first time I'd heard
of it.
80
When cross-examined, Mr Cowell maintained that there was never an occasion when
a book was airborne or was thrown to the plaintiff after she asked for it. Mr Cowell
would not say the plaintiff was lying, or had made up the allegation, simply that it
never happened. He never threw or tossed a book.
81
There was other evidence about the incident. The defendant’s counsel suggested the
‘tossing’ may have occurred between their respective desks. Another suggestion that
better correlated with the distances suggested by witnesses was that the plaintiff was
at the serving counter and Mr Cowell was at his desk. The plaintiff was crossexamined about her reaction to the incident, having said in evidence that she was
frightened and alarmed by what happened and that she did not know why she did
not immediately complain about it, eventually stating that she ‘was very distressed’. I
am satisfied that until March 2003, she was under the impression that Mr Cowell
could sack her and, being newly employed and otherwise enjoying her job, she didn’t
want to make a fuss. The plaintiff stated to Mr Somers, in March 2003, that the
incident did not frighten her. I accept her explanation that in the March 2003
conversation she had other reasons not to emphasise that incident, including her
belief that Mr Cowell could fire her and the fact that she did not want to be seen to be
causing trouble when she had just started the position. I also accept Mr Swan’s
evidence that his wife told him a book was thrown at her when it happened. I do not
accept that the plaintiff and her husband discussed out of court the evidence that they
would give about this incident, although plainly the incident had been discussed
between them in the past.
82
The proper perspective on the book throwing incident is not that it marked a pattern
of occupational violence, because it was an isolated incident in that sense. However, it
formed part of a pattern of aggressively asserted control over the workplace
environment by Mr Cowell. Following on the threat to sack the plaintiff if she failed to
memorise the booklists, the book throwing incident is demonstrative of Mr Cowell’s
use of his anger and his mood to control and dominate the atmosphere at the
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bookroom and in this sense a pattern emerged. The pattern was not characterised by
actual violence but by a propensity towards anger and violence.
83
Not long after the book throwing incident, the plaintiff arrived at the bookroom to
discover a damaged calculator lying in pieces on the floor. Mr Cowell was not then
present. The evidence of Mr Cowell and the plaintiff was in conflict over the
calculator and I prefer the plaintiff’s version of this event. Asked what had happened
when he later arrived at work, Mr Cowell said ‘I threw it at the wardrobe, I was mad’.
The plaintiff perceived the incident as a display of unnecessary and inexplicable
violence towards an object. Mr Cowell admitted as much. Mr Swan said his wife came
home one evening and said Kris had smashed this calculator at work today and she
was frightened by the discovery of another act of violence by him. Mr Cowell did not
dispute that there was an incident involving a calculator. He described being
frustrated using the calculator as it had a sticking key and he threw it in the bin.
Mr Cowell disputed that the calculator lay broken on the floor or that plaintiff saw it
there.
84
I accept that there was a third outlet of violent expression of mood that the plaintiff
regularly witnessed during her employment at Legibook. Mr Cowell, when frustrated
or angry, had a habit of slamming the receiver of the phone into its cradle and
throwing his work down on his desk. The plaintiff described his actions as very
aggressive. These intemperate, and unnecessary, displays may not have been directed
specifically at the plaintiff, but often occurred in her presence, creating a stressful
anticipation of conflict, or further or other unpleasant conduct from Mr Cowell that
might be directed specifically at her.
85
Such behaviour intimidated the plaintiff, increasing her anxiety and causing her to
moderate her own behaviour. When these acts occurred she went into her ‘shell’,
staying ‘quiet’ and ‘out of his road’ so that he wouldn’t be further aggravated. This
reaction was recorded by Mr Somers, early in her employment at Legibook, in an
email to directors that recorded that Mrs Swan asked Mr Cowell about a book at ‘a
bad time’, meaning at a time he was stressed, and he threw the book at her. The
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workplace environment revolved around Mr Cowell’s mood. He used his mood and
demeanour to demonstrate his control over the bookroom as the plaintiff describes:
His moods would swing a lot. So I got to learn over the five years when to be
quiet, when to have a normal discussion, when to not question, when to just do
my work, or just leave and go and buy a cup of coffee… and just try to calm
myself down again so that I could just - and then I would just concentrate on
my work.
The plaintiff anticipated Mr Cowell’s behaviour:
Well I always knew when he was going to have a bad day because he would
come in with a very red face and he would be very assertive right from the
very beginning of the day. So those days I tried to not speak too much and
stay fairly quiet and just go about my job and get my work done and then leave
and go home. I didn't want to inflame any situations.
86
I am satisfied that each of these incidents of violence occurred at a time when the
plaintiff believed that Mr Cowell had the power to dismiss her and that the effect of
them was to intimidate the plaintiff. From that time, Mr Cowell was able to, and did,
bully, intimidate and harass the plaintiff with his tone of voice, his moods, his sarcasm
and his rudeness, with overt displays of violence, but not actual violence to the
plaintiff as initially occurred. Dr Michael Epstein, a psychiatrist who examined the
plaintiff on at least four occasions and whose evidence I accept, explained the
significance of intermittent reinforcement in a slightly different context:
There's a concept in psychology of intermittent reinforcement which is that if
you randomly do something to, for example, a laboratory rat, the rat keeps
anticipating that that will be happening even though it's not happening,
because it's intermittent reinforcement. So you never quite know when it will
happen again. And so, in my experience, having dealt with a lot of people
who've been subject to alleged workplace bullying, they reach the point of
anticipating that the bullying occur, even though it doesn't actually occur.
The plaintiff, despite thinking that she was coping with the stress created by
Mr Cowell’s control of her workplace environment, was suffering significant levels of
stress anticipating that voice tones, moods, rudeness, sarcasm, nitpicking and other
behaviours would lead to actual violence.
87
I accept the plaintiff’s evidence that their interaction from 2003 to 2007 was typified by
exchanges and responses like the following, each in isolation a small matter of no
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great moment, but evidence of the pattern that developed. First, there are examples of
how Mr Cowell engaged with and spoke to the plaintiff.
(a)
On an occasion when Mr Cowell rearranged the furniture, the plaintiff was
annoyed and upset because it made her feel ignored. That feeling arose because
she had suggested that particular rearrangement at some earlier time, and the
suggestion was refused without reason. Subsequently when the plaintiff wasn’t
there, Mr Cowell moved the furniture. The plaintiff felt put down that he’d
done it in a way that showed he didn’t give her any credit whatsoever for any
ideas or suggestions. The plaintiff felt encouraged by the board to make
constructive suggestions about such matters.
(b)
The arrangement of the book stock in the bookroom on the shelves was a
source of conflict. There were disputes over the location of stock, particularly
how stock was sorted, and about labelling. Books were placed on the shelves
with their spines facing the wall. The plaintiff accepted that Mr Cowell had the
last word about such matters, but it was his manner of expressing it that
dominated and stressed her. Not only did Mr Cowell tell the plaintiff he didn’t
like her questioning his decisions but he would tell her so with a raised voice
and a red face. He did not conversationally explain his reasons. The plaintiff
could not understand why he would want to exercise power over her in this
way. When she raised the books with spines towards the wall, Mr Cowell
sneered, ‘I like it that way, that’s how we should stock the shelves … That’s the
way it’s going to be.’ When cross-examined, Mr Cowell denied deliberately
arranging books with the spine facing inwards, but later he said that when he
did arrange the books in that manner, it was to ensure the books would not be
lopsided, because some had much thicker spines than others. This reasoning
was never provided to the plaintiff, Mr Cowell simply snapped, “Because I
want it that way”.
(c)
With no explanation for Mr Cowell’s preferences, the plaintiff became
uncertain about the ‘correct’ way to do things. The disrespect shown to the
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plaintiff in innocuous everyday interactions was another method of exerting
control. The plaintiff described getting ‘teary’, unable to understand how
something so insignificant could become such a major issue. The plaintiff’s
suggestions that stock might be arranged on the shelves in a different
configuration drew the rebuke, ‘For fuck’s sake, will you put them where I
want them’. I was not satisfied that Mr Cowell was exasperated by the
plaintiff’s comments. He was expressing his intolerance of her insubordination.
There was a deal of evidence about the arrangement of stock on the shelves . I
am not persuaded that his rejection of the plaintiff’s suggestions as to how it
should be arranged was, of itself, inappropriate. It was the manner in which
Mr Cowell delivered his instruction, not the instruction itself, that was
contributing to a harmful environment for the plaintiff.
(d)
Mr Cowell was regularly unnecessarily sarcastic towards her in conversation.
An example concerned eating bananas. Whenever she ate a banana, Mr Cowell
said, ‘do you have to eat that in here’. He didn't like the smell of bananas,
which he expressed as ‘that smells good, doesn’t it.’ So she would make sure
that even the peel was put in a bin outside of the bookroom to avoid arguing
over it. Another example concerned ‘post-it’ notes. The plaintiff liked to use
them, particularly to leave messages, which she posted on his desk in the order
of receipt. Mr Cowell, when he saw them, sneered ‘you’ve left me messages,
haven’t you. I see all these post-it notes are sitting here’. He stopped
purchasing ‘post-it’ notes for the bookroom, saying that he didn’t like them or
the way the plaintiff used them. The plaintiff told Mr Cowell that she would
still like to use them for her own purposes, even if he didn’t like them used on
his desk to leave notes. Mr Cowell indicated that she should get money out of
petty cash to buy her own, refusing to order them on her behalf. Although such
behaviours are obvious evidence of personality conflict, their significance is
their place in the wider pattern of Mr Cowell’s treatment of, and pursuit of
control over, the plaintiff.
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(e)
Mr Cowell made offensive remarks in the plaintiff’s presence. Examples that
emerged from the evidence included observations that vilified staff of Asian
appearance employed by the bank – they’re all stupid - or dark-skinned
students employed in the bookstore as casuals, whom he reduced to tears.
Mr Swan recounted that the plaintiff told him Mr Cowell appeared to get on
well with male casuals but ‘seemed to have an issue with’ female casuals, but
there were no specific particulars given in evidence. The plaintiff said
Mr Cowell asked her to train temporary staff that he did not like and it
appears, from histories given to professionals, that the plaintiff was mostly
asked to train and work with female casuals, particularly those who were not
Anglo Australians.
(f)
Mr Cowell used offensive language both in conversation with the plaintiff and
in her presence. Although it was not usual or even regular for Mr Cowell to
swear directly at the plaintiff, he did so in the following ways, usually as an
expression of anger or a bad mood; ‘What the fuck did you do that for’, ‘For
fuck’s sake, go and put them where I tell you to put them’ or ‘Shit, I didn't
want it like that’. Much more regularly, Mr Cowell swore in the plaintiff’s
presence, ‘For fuck’s sake, I want [this or that]’, ‘Oh, for fuck's sake this bloody
program just doesn't work properly’ or ‘this fucking system is … ’
(g)
There were numerous examples of rude, demeaning, hostile or sarcastic
statements from Mr Cowell. I accept that he regularly spoke to the plaintiff
using a loud voice, an angry tone, often accompanied by a red face or other
expression and demeanour consistent with such a mood.
(h)
There was also conflict over dealing with customers, usually associated either
with book requests that were out of stock or refunds. I am not satisfied that
Mr Cowell’s attitude to refund requests is relevant, except in the sense that it
provided occasions when the plaintiff saw him speak rudely or demeaningly to
students or casuals, invoking a stress that she too might be about to receive a
sharp word or an angry reaction. I accept that it was Mr Cowell’s habit to
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intervene in the plaintiff’s conversations with students, both in person and over
the phone. Mr Cowell justified his interruptions as arising from a need to
correct the plaintiff who was giving out misinformation about the availability
of stock or the like. The plaintiff rejected that characterisation. Misinformation
usually followed on from Mr Cowell’s inability or refusal to keep the plaintiff
informed of basic issues, for example that the text book being sought by
students had arrived on the previous Friday in her absence. More significantly,
the plaintiff complained that Mr Cowell was, when he interrupted a
conversation that she was conducting with another person, disrespectful and
demeaning in his tone and in the manner in which he presented the correcting
information. In this way, he belittled and humiliated her in front of other
people. Rather than say helpfully that the stock had just come in, Mr Cowell
interrupted conversations not just with corrections about the stock availability
but also with the suggestion that she ought to have known that fact, carrying
the implication for all listening that only stupid or ignorant persons would be
so unaware or that the student was being misled. The plaintiff was made to feel
that she didn’t know her job, that others would consider her incompetent,
when she knew that she was competent. I accept that the plaintiff felt belittled,
stressed and hurt in these circumstances, which regularly occurred. I am
satisfied that Mr Cowell either intended that she feel that way, hoping she
might seek alternative employment, or just didn’t care how she reacted to the
way that he treated her.
(i)
Mr Cowell was nit picking of the plaintiff’s work, by an approach of constant
observation and correction about insignificant or irrelevant matters. The
plaintiff gave evidence of Mr Cowell’s close observation of her in the book
shop. She described his frequent interruption and ‘correction’ of her during
telephone conversations and discussions with customers in the book shop, and
his requests that she cease doing a certain thing at the time she was performing
that act. Mr Cowell, for example, curtly requested that she not rearrange the
books while the plaintiff was in the act of moving the books, ‘Don't touch that
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book. I've got that there for a reason’. He also told her not to use a certain coat
hanger while she was hanging her coat, ‘Re-hang your coat because I use that
wooden coat hanger’. Use and cleaning up of tea cups was also fraught.
Mr Cowell disapproved of how the plaintiff answered the phone. She would
say ‘Legibook, Wendy speaking’, and he preferred her to answer simply,
‘Legibook’. Mr Cowell expressed his disapproval to the plaintiff about the way
she answered the phone over a period of time, building to a heated exchange
when he said to her, ‘Why do you always have to fucking well answer the
phone via your name? You don't need to do that. There's only two of us
working here’. These examples make out the plaintiff’s concern that Mr Cowell
was listening and watching her closely. Cumulatively, these corrective and
disrespectful interactions led the plaintiff feel that she was constantly being
watched by Mr Cowell, whom she described as being ‘ready to attack at any
stage’:
[E]very move I made within the store I could feel him watching me and
I knew that he was watching me when I would change books on the
bookshelf and he would say, "Don't touch that book. I've got that there
for a reason." Um, if he hadn't been watching me he wouldn't have
known I'd even moved the book, um, and I started to feel his eyes on
me all the time and I felt terribly enclosed and insecure in that space.
(j)
The plaintiff did not readily submit to such nitpicking. It does not matter that
Mr Cowell ceased instructing the plaintiff to answer the phone by introducing
who was speaking. I am satisfied that other form of nitpicking followed on, in
an episodic rather than a continuous way. The plaintiff agreed with the crossexaminer that she raised the phone answering issue with Mr Somers, yet
continued to answer in her own way. As the plaintiff explained:
… I felt that Paul Somers had everything in hand, and he had instructed
me that he was going to make sure that Kris didn't make my life hard at
work, and would put the policies and procedures into place and keep a
check on the workplace so that I didn't have to be bullied and badgered
by such trivial matters. Because he found it acceptable the way I
answered the phone.
And you thought it was bullying and badgering?---When it was
continual, yes.
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Yes, so it would only be continual when you'd be doing it the way he
didn't want you to, of course?---Yes.
Yes, so if you chose your way and he suggested another, that was
bullying for him to insist you do it his way?---If I found that it was
unreasonable and he continued unreasonably so, I would then take it to
the directors.
I do not accept that such conduct, speaking more generally that just the phone
answering, can reasonably be characterised as proper and appropriate
management by Mr Cowell of his employee, as the defendant contended.
(k)
Mr Cowell’s
discouraging
and
disapproving
tone
permeated
other
conversations he had with the plaintiff. He was unsympathetic towards her
when she experienced a prolapsed disc in 2006 that required 6 weeks off work.
Mrs Swan, feeling that she was letting the book shop and Mr Cowell down,
followed her rehabilitation program closely in order to return to work quickly,
but gradually. Mr Cowell didn’t see why she had to return part time; if she was
ready to come back to work, she should do so on a full time basis. The plaintiff
was made to feel that she should not have bothered. Mr Cowell’s statement
undermined her efforts to recover, and was made to her at a time when she
was still unwell. I accept that the plaintiff felt hurt in these circumstances, and
again I am satisfied that Mr Cowell either intended that she feel that way,
hoping she might seek alternative employment, or just didn’t care how she
reacted to the way that he treated her.
88
Next, there are examples of how Mr Cowell controlled the plaintiff’s work space.
(a)
I accept the plaintiff’s evidence that Mr Cowell’s response to any suggestion
that she made to change any aspect of the workplace was automatic. He would
say no. On occasions he would adopt her suggestion later as his own. The
plaintiff made many suggestions - that was one of Mr Cowell’s objections to
her - because he thought she wanted to be the manager, to do his job. When
asked, Mr Cowell could not bring to mind a single suggestion from the plaintiff
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that he had adopted, only recalling that the board had imposed on him the
plaintiff’s suggestion that the Legibook logo should be printed on carry bags.
(b)
I am satisfied that the plaintiff’s requests for vision of the service counter from
where she sat or for a warning of when customers entered the bookroom when
she was sitting at her desk were not unreasonable. His refusal to install a bell
was really an instance of his refusal to accept any suggestion that she made. As
a result it was necessary for her to twist around from the computer workstation
to check for customers. I am satisfied that the plaintiff’s vision from her desk
was obscured by a bookshelf that Mr Cowell placed in front of it. Although the
precise height of the bookshelf was debated in evidence, I accept that, from
what appears in photographs and from the plaintiff’s descriptions, the
bookshelf of itself did not obscure vision of the counter but it could be, and
was, stacked with stock on its top that obscured the plaintiff’s vision. The effect
was to corral the plaintiff into a confined rear office space.
(c)
The plaintiff updated the membership database, and had a personal password
giving her access to this file. Mr Cowell cracked her password and entered the
database when the plaintiff was not at work. He explained that he did this
because, in the plaintiff’s absence, a director had requested information from
the membership list. He told the plaintiff that he had logged into the list as
soon as he next saw her, but when she asked him why he had done it, he said
smugly, ‘Oh, because I just knew what it [the password] was going to be.’ In
cross-examination, he denied fabricating the directors’ request for information.
Although it would have been reasonable to ring the plaintiff at home and
request the password, if the information was urgently needed, I am satisfied
that the issue between them was not about access to information on the
database. It was an attempt to show the plaintiff that, being able to predict and
use her password, Mr Cowell was able to invade and control the plaintiff’s
work space. Perhaps, as the plaintiff stated, she believed that more sinister
events might occur using her password without her knowledge, but I am
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satisfied that Mr Cowell had no such plans. He wanted only to demonstrate his
abilities and his control. I do not accept his denial that he wanted to cause her
distress in these circumstances.
89
There are examples from the evidence of how Mr Cowell controlled the plaintiff’s
work.
(a)
Mr Cowell would not explain his instructions. As the plaintiff explained in
evidence:
[H]e just said, ‘Because I want it that way’. That was always his
reasoning when I asked him why. He hated me asking questions so it
got to a stage over the years where I struggled to even ask him a
question because he'd say, ‘Why do you keep asking me questions?’
And at first when I started working there it was because ‘I need to
know how this place works. I need to know why we do things the way
that we do and the only way I'm going to be able to learn that is if I ask
you a question because there's only two of us here’. And he would say,
‘Well, I hate you asking me questions all the time’.
And what tone did he use when he said that?---Very aggressive.
(b)
Towards the end of 2006, when the book store was quiet, Mr Cowell refused to
allow the plaintiff to assist with the usual tasks of unpacking deliveries,
organising the display of stock, checking orders, and answering the phone.
This left the plaintiff with little to do. There was an element of competition in
the way Mr Cowell approached tasks during this time. For example, he
‘jumped’ to answer the phone, preventing the plaintiff from answering first.
When the plaintiff offered to assist with unpacking a delivery, Mr Cowell did
not want her help as he was ‘quicker’. With no tasks allocated to her, and the
underlying suggestion that she could not perform them as well as him, the
plaintiff described feeling unwanted:
How did that make you feel?---Unwanted and sad - - -he didn't want
me working in there, that he didn't feel I could do the job properly, that
he felt he could work better than I could. That didn't really worry me, it
wasn't a competition. I just wanted to work. I don't like being at work
not working.
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(c)
Mr Cowell gave the plaintiff meaningless tasks, for example, attending
personally at the bank to arrange for a refund of $3 to the account.
(d)
Mr Cowell was angry that the plaintiff was allowed compassionate leave when
her mother-in-law passed away because he was refused compassionate leave to
take time off during school holidays to look after his children. This arose at the
time of the plaintiff’s mother-in-law’s passing and funeral. Mr Cowell refused
the plaintiff’s request to be paid compassionate leave, and also her request that
he ask the directors if compassionate leave applied to funerals. Mr Cowell
controlled the plaintiff’s receipt of her wages, by submitting her timesheet and
organising the cheque that needed to be countersigned by a director. The
plaintiff described being abused about being paid overtime when Mr Cowell
was not paid overtime, despite Legibook paying Mr Cowell a bonus. She also
described occasions when he failed to organise a countersignature on pay day
so she was not paid until the following week. I do not accept Mr Cowell’s
statement, denying late payment of wages, that on one occasion he found a
director on his day off and personally delivered the signed cheque to her at
home.
90
The impact of each of these incidents varied of course. As the plaintiff explained,
using the episodes of the stacking of the books with the spine facing inwards:
My stress levels would go up. Sometimes I would have to leave the store and
go and get a coffee so that I didn't, um, I'd get teary about it thinking I just can't
understand why such a - a little insignificant turning of a book became a major
issue in a store. Um, I didn't know why he wanted to have power over how the
shelves were actually stacked.
91
Overall, the plaintiff described Mr Cowell’s conduct as causing her to feel fearful,
stressed, teary, anxious, hurt, upset, belittled, demeaned, incompetent, ignored, and
unwanted. I accept that it is probable that she experienced these reactions.
92
The evidence suggests that the core of this behaviour was a conservative, untrained,
management style, an unwillingness to accept the plaintiff as a colleague - as the
board had encouraged her to believe that she was - and, probably, a basic dislike of
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the plaintiff as a person. That dislike probably stemmed from the matters that I have
already noted. It was not hatred, but his attitude was more than discourteous and
disrespectful, distinct from personality conflict, which is not uncommon in a
workplace. Mr Cowell and the plaintiff were not required to like each other. In his
dealings with her, Mr Cowell either sought to make the plaintiff feel that he would
prefer that she left Legibook, or didn’t care whether she was comfortable working
with him, and that it would be better for her if she found other employment. I am
satisfied that Mr Cowell, although he did not regularly say so, would have preferred,
almost from the outset, that the plaintiff find alternate employment. If she did not do
so, then he was disposed to dominate and intimidate the plaintiff, because he could. I
have reached this conclusion on the evidence and from my assessment of Mr Cowell
as a witness. I can not say whether the way he treated the plaintiff and some of the
casual employees at Legibook was likely to have been typical of his dealings generally
with persons with whom he came in contact in his life.
93
The plaintiff did not want to antagonise Mr Cowell, particularly as she was
encouraged by the board to believe that a solution was not far off in the form of the
position descriptions, employment contracts, and workplace behaviour policies to
clarify the board’s expectations of the proper standards of interpersonal interaction in
the bookroom.
94
In some cases, histories recorded by doctors suggest that bullying behaviour occurred
on a daily basis. The parties debated the frequency of its occurrence at trial. I do not
accept that the plaintiff ever intended to imply that such conduct occurred every day
of the five years that she worked for Legibook. I am satisfied that such conduct was
episodic, and that the episodes were associated with times of increased pressure in the
activities of the bookroom, notably at the beginning of semesters. During these
episodes, bullying behaviour from the categories described above occurred, and
probably on a daily basis for a while. Although Mr Cowell’s bullying behaviour was
intermittent, he was not ever pleasant to the plaintiff, or ever affirming of her worth,
between episodes.
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95
For her part, the plaintiff mistakenly believed that she could cope with Mr Cowell’s
conduct. She believed that she was, and remained, a strong person. I am satisfied that
as her coping mechanism for workplace stress was being eroded by Mr Cowell’s
behaviour. She either did not recognise the signs of a looming breakdown or was in
denial. Most importantly, the plaintiff effectively reported to her employer in March
2003 that the environment was toxic to her well being and received their reassurance
that they were acting to improve her circumstances. The plaintiff also mistakenly
believed that she did not need to continue to cope with Mr Cowell’s conduct for an
indeterminate period, and it was the board itself that engendered that belief. Yet from
2003 to 2007, the board had failed to take the steps which it had itself identified as
needed to avoid the plaintiff working in an environment where she was exposed to
the risk of a psychiatric injury.
The breakdown
96
Matters came to a head in July 2007. This was a time of increased work pressure in the
bookroom, being the start of second semester. The stock of trust faculty lecture notes
was not available at the start of semester and student expectations about their
imminent availability were high. The stock, which consisted of more than 200 copies
of the lecture notes, arrived on Friday 20 July when the plaintiff was not at work.
Mr Cowell decided to place the stock on a pallet, at the rear of the bookroom, across
from the point-of-sale tills. The usual place for trust faculty lecture notes was on the
upper shelf under the counter to the left of the till closest to the entry door.
97
On Monday 23 July 2007, when she arrived at work, the plaintiff was followed into
the bookroom by a student asking for the trust notes. As there were none under the
counter, the plaintiff told the student they were out of stock but stock was expected
and she would check when they might be coming in. Mr Cowell, sitting at his desk,
then joined into this conversation with the remark, which the plaintiff described as
delivered with sarcasm: ‘By the way, they’re not out of stock. You weren't here on
Friday. They came in on Friday. If you'd bothered to look you would know they were
there. You must've forgotten that you weren't here on Friday. Faculty notes have
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arrived and they're behind you.’ Mr Cowell knew the plaintiff had only just entered
the bookroom and had not had the chance to look around for the notes , which were
not in the usual place.
98
Mr Cowell later told Mr Jensen that it was a common fault of his to interject into her
conversations with others. The statement was a good example of a publicly belittling,
unnecessarily sarcastic, comment as had become commonplace in Mr Cowell’s
treatment of the plaintiff. The form of a polite respectful response is obvious.
Although yet again hurt and publically humiliated, the plaintiff located the stack on
the pallet, placed some notes under the counter in the usual place and, making light of
Mr Cowell’s comment with a joke to the student, completed the transaction. Later
Mr Cowell commented, perplexing the plaintiff, that she might have considered that
he was leaving that space for a delivery. The location of this stock became a
battleground.
99
The plaintiff considered that storing the notes on the back wall, when there would be
immediate high demand for the notes, would be inconvenient so she started putting,
and then replenishing, a supply of the notes underneath the counter. She gave
evidence of the following exchange occurring between them on the Tuesday morning,
with the tone of it rapidly escalating into an argument in which Mr Cowell was
shouting at her.
As the morning went on, um, Kris said, "I put them over there for a reason."
And I said, "Oh, I just thought it would be easier if we had them underneath
the - the counter so that you didn't have to walk backwards and forwards
every time a customer came in. I could just reach down, pick it up, scan it, sell
it and I could keep refreshing that during the morning." "I don't want it done
like that." And I he5 said, "You don't think of me. You never think of me." He
said, "I have a bad back and you never think of me." And I said, "But this is
thinking of you because if I put the faculty notes right next to the till under the
counter all you have to do is just pick one up and scan it." "Well, that's not
what - how I want it done." And I said, "Well, I'm going to need to do it that
way because I don't want to keep walking backwards and forwards and
wasting time. I want to serve the customers as quickly as possible. I know
we're going to be busy and inundated for about probably an hour with these
students coming in just before their lecture." So that's what I did and he got
particularly nasty and I said, "Well - - -
5
The transcript incorrectly records ‘I said’ instead of ‘he said’, Compare T179:18.
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What do you mean by that?---He said, "Well, I don't want you to do it that way.
I don't want you putting them under the counter." And I said, "Well, I'm
going to", because it was the first time I actually really stood up and said, "This
is so illogical. Why would I walk backwards and forwards all day long when I
could just reach under the counter?" I said, "You can serve your till walking
backwards and forwards if you wish. I'm putting them under the counter."
And as the morning went on he started putting them under the counter
because another order came in into the [loading bay] and when he brought
them back he started putting them under the counter, um, so anyway I waited
and I had been really upset and it was building and building and building at
this stage …
… it was about twelve o'clock, and there was no more students in the store,
and – because I would never, ever say anything in front of students or
customers in the store. That would be totally unprofessional. So I waited until
then, and I said – I walked over to him, and I said, "Kris, don't you ever say
that I don't think of you, I was only acting in what I thought was a normal
practice of just being normal, in a bookstore that it was ease of selling, this
particular product", and he said – and I said "And I do think of you in this
store. I don't know why you would say I never think of you", and he said,
"Well why don't you just get out – get out of Legibook, and go and find another
job, and just go away". So I was so upset I just turned, and I packed up my
things, and I went, and I went out in to the car park, and I was in tears, and I
was very upset, and I rang Paul Somers.
100
Cross-examining counsel suggested to the plaintiff that a time arrived when
Mr Cowell was reaching under the counter to the plaintiff’s supply of notes and he
told the plaintiff that he found it difficult to have to reach down around her legs. The
plaintiff, who appeared surprised by this suggestion, immediately rejected it. The
cross-examiner suggested that most certainly in conversation Mr Cowell said it was
inappropriate to be reaching around behind her body and, also, that he was having
difficulty with his back. The plaintiff understood the point of leaving the notes on the
pallet was for Mr Cowell to avoid bending over, because that was what he had said to
her earlier.
101
Mr Cowell’s evidence was that his concern, as he expressed it to the plaintiff, was that
he wasn’t comfortable reaching around her legs, which was why it would be better to
leave a supply of stock on the pallet for his access. In cross-examination, it became
clear that Mr Cowell accepted that the plaintiff had been locating a stock supply of the
notes under the counter for her own convenience because he stopped complaining
about that. There was always stock on the pallet. Mr Cowell always had a choice
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whether to source stock for a sale from the pallet or from under the counter because
the supply on the pallet was never exhausted.
102
Mr Cowell’s evidence was that the ‘argument’ occurred after the plaintiff returned
from the bank, having stewed about the events of the morning and become agitated.
He also referred to reconciling, and possibly banking, the day’s takings himself at a
later point after the plaintiff left. When the plaintiff was cross-examined about the
chronology of events on that day, including as recorded in the plaintiff’s diary, the
proposition that she had gone to the bank was not put to her. Following an overnight
adjournment, Mr Cowell told his counsel he had reflected on the timing of the
‘argument’ and he put it at 10 minutes before the bookroom closed when the
reconciliation had not been done and the plaintiff could not have done the day’s
banking.
103
When cross-examined, Mr Cowell agreed it was reasonable for the plaintiff to have
questioned what had occurred over the trust notes. Although he agreed that he lost
his self control, Mr Cowell maintained that he was agitated, not angry, because she
was agitated. They were each shouting. An agitated, shouting man who is not
exercising self-control may be perceived, reasonably, as angry. Mr Cowell was
challenged about his evidence about the banking and he suggested that the plaintiff
had not banked that day’s takings, but shortly prior to closing for the day, she had
gone to the bank with only the previous day’s takings. Mr Cowell was reconstructing
his evidence. I do not accept that Mr Cowell’s recollections of the day’s events was
accurate, reliable, or probable.
104
I am satisfied that Mr Cowell’s evidence about this day was enhanced by
reconstruction for other reasons. His original explanation was unconvincing. The
evidence demonstrated that there was always a supply of the notes remaining on the
pallet at the rear of the shop. There was no need for Mr Cowell to reach behind or
around the plaintiff’s legs because at all times he could retri eve a copy of the notes
from his preferred location. Mr Cowell’s primary concern had appeared to be the
strain on his back from bending and squatting. The suggestion that the action of
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obtaining a copy of the notes involved uncomfortably reaching around the plaintiff’s
body found no contemporaneous expression. I am satisfied that Mr Cowell made up
the issue of his discomfort in having to reach around the plaintiff’s body to enhance
his justification for not permitting the notes to be stacked under the counter in the
usual place when it became clear that the ‘back problem’ justification was, at best,
unconvincing. His concern could not reasonably have been about his access to a
supply of the notes because the supply on the pallet at the back was never exhausted.
He never needed to take notes from under the counter and I am not satisfied that
when he did he was either experiencing discomfort in his back or discomfort from
reaching around the plaintiff. Mr Cowell was being aggressive, and controlling,
towards the plaintiff. He was, yet again, bullying her.
105
Mr Cowell’s evidence about key statements made in their conversation on 24 July
2007 was also reconstructed to place him in a more favourable light. I do not accept
that, in his angry state, he said ‘If you can't work with me at Legibook why don't you
go and seek another job’. I prefer the plaintiff’s evidence. It is supported by
Mr Somers, who recorded contemporaneous diary notes of his conversations with the
plaintiff and Mr Cowell within an hour of this altercation. Mr Somers had no
independent recollection of this conversation beyond his note and the relevant part of
the note reads:
-
did you say “go home and look for another job”
she said “I’ll have you up on bullying”
if you don’t like it, go away
I sent her home b/c both voices raised & not productive.
Mr Cowell agreed with the cross-examiner that the plaintiff said she’ll have him up on
bullying as her response to his statement ‘if you don’t like working for me, why don’t
you find anther job’. Mr Cowell denied making the next recorded statement. That was
the only part of the note that he disputed. I do not accept this denial. I find that
Mr Somers knew that the situation between the two of them had blown up. He
understood the history of their relationship, its significance for Legibook and the need
to carefully record what he was told. His contemporaneous note represents the best
independent evidence of what was said by each of the participants in this altercation.
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Even allowing for the fact that their retelling of an emotionally charged event might
not be perfect, it is probable that the exchange between them was substantially as
Mr Somers recorded it and I so find.
106
Further, Mr Cowell’s substantive recollection of the incident was that he behaved
badly. He recalled that she was not happy with the way he had spoken to her and said
so. She said she was sick and tired of him, and it escalated from there. Asked about
the argument that resulted in the plaintiff leaving the premises, Mr Cowell said:
Yes, the substance was that she wasn’t happy, and that I criticised her, and she
didn’t deserve the criticism, and that it was wrong of me to doubt that she
didn’t have the best interests of what was going on.
In cross-examination, he accepted that this assessment only addressed the earlier
stages of the exchange, not her allegation that he was a bully and his response to that
allegation.
107
Mr Cowell responded to the plaintiff’s reasonable chastisement of him for the way he
had told her to get out in terms that made plain that he didn’t want to work with her
at all, that he had had enough of her, and that she should find another job. She then
told him he was a bully. Significantly, Mr Cowell did not deny that characterisation.
His response to her suggestion that he bullied her was if she didn’t like it, she should
go away. That was, for the plaintiff, both a validating admission of her perceptions
and a statement that his bullying would not end unless she left Legibook. Being an
assertive woman, she responded that when she left Legibook, it would be on her own
terms.
108
I find that on 23 and 24 July 2007 Mr Cowell continued his pattern of verbally
harassing and intimidating the plaintiff with his authoritarian and controlling attitude
during the incident sparked by the location of the trust lecture notes. However, the
plaintiff’s capacity to continue absorbing the stress of his conduct, was then rapidly
evaporating. When she stood up for herself, Mr Cowell expressed his real feelings
when, rather than deny that he was a bully, he told her to go and find another job
elsewhere and not come back to Legibook. Although she was assertive to his face, in
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denying his right to treat her this way, it was from this point, and probably as a result
of his admission of her perceptions, that the plaintiff’s capacity to cope with the way
that she had been and was continuing to be treated by Mr Cowell deserted her.
109
Distressed and intimidated, she retreated to the car park and telephoned Mr Somers
at 12.45 pm. Mr Somers noted that the plaintiff told her that Mr Cowell regards
Legibook as ‘his’, that he was a control freak who was horrible to work with. She had
put up with his inexcusable behaviour for five years and was finding it increasingly
difficult to work there. He had just told her to go home and to look for another job.
She told Mr Somers she had been bullied.
110
At 1.10 pm Mr Cowell called Mr Somers. Mr Somers’ note of this conversation records
that Mr Cowell said he was not in the best mood. The plaintiff had said to him ‘I’ll
have you up on bullying’. Mr Cowell disputed that he said to Mr Somers that he said
to the plaintiff ‘If you don’t like it go away’ but I accept Mr Somers’ contemporaneous
note as accurate. He recorded that Mr Cowell told him ‘I sent her home because we
both had our voices raised and it was not productive’. Mr Somers recalled that
Mr Cowell accepted that because he was in charge and had let the situation get out of
control it was his fault. He agreed to apologise to the plaintiff to say that if he upset
her by what he had said today he was sorry.
111
By 3.00 pm that day, Mr Somers had informed the board of this further allegation by
the plaintiff of workplace bullying by Mr Cowell. I am satisfied that Mr Somers
accepted that Mr Cowell had been bullying the plaintiff. The board was informed that
the plaintiff was prepared to return to work the following day and that she wanted to
keep working at Legibook. Although Mr Cowell disagreed with the plaintiff’s version
of events, he accepted that he had allowed a situation to get out of control and had
responded inappropriately. Unsurprisingly, Mr Somers had immediately recognised
the need for the board to expedite the stalled completion of employment contracts, a
process which had been commenced over 4 years earlier in April 2003, to reduce the
potential for conflict. Mr Somers now recognised a need to involve an external
workplace seminar or counsellor to address appropriate workplace conduct and a
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need for immediate close monitoring of the feelings and conduct of both members of
staff. Mr Somers reminded directors that ‘We have legal obligations to provide a safe
workplace for employees, both physically and mentally’, and that possibly a
discloseable event for insurance purposes had occurred. An obligation both legal and
moral to formally respond to the plaintiff’s allegation was noted.
112
The following day, at the suggestion of her husband, the plaintiff provided Mr Somers
with a copy of the Monash University policy on the prevention of bullying and
occupational violence at the university. Meanwhile, the board formally engaged
Russell Kennedy solicitors, the firm where Mr Somers worked as a solicitor. Mr Paul
Ronfeldt suggested that they engage a workplace consultant, Mr Michael Jensen.
113
On the evening of 25 July 2007, Mr Somers told the plaintiff to take a few days off and
return to work the following Monday when a mediator would be available to work
separately with each of them.
114
When the plaintiff returned to Legibook the following Monday, Mr Cowell apologised
to her. She described the apology as unsatisfactory. She was sitting at her desk while
he sat at the computer terminal with his back to her. He said ‘I’m sorry if I let
everything get out of hand. I’m sorry if I caused you any distress’. He was typing on
the computer as he delivered this apology, which the plaintiff found to be insincere
and upsetting. It was followed by almost complete non-communication between them
for the rest of the day. Even the radio was off. Mr Cowell had written notes on a
whiteboard so that the plaintiff did not have to ask him any questions. The plaintiff
found this situation increasingly distressing.
115
By the Thursday morning, when she was scheduled to meet with Mr Jensen, she was
unable to get out of bed because she was too distraught. Her husband assisted in
arrangements made for her to meet Mr Jensen at a coffee shop in a shopping mall.
116
Michael Jensen had qualified as a solicitor and practised for two years before forming,
with a clinical psychologist, a private consultancy firm specialising in workplace
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issues. Mr Jensen had a degree in psychology but was not qualified as a clinical
psychologist.
117
He believed that he had been engaged directly by Legibook to mediate this situation
between the plaintiff and Mr Cowell. Mr Somers briefed Mr Jensen with background
and he then met with each of Mr Cowell and the plaintiff. He concluded that a
mediation process would be inappropriate for reasons that included his concern for
the plaintiff’s health and his view that Mr Cowell did not have the appropriate
attitude for a successful mediation.
118
By this stage Mr Somers had a dysfunctional workplace. The plaintiff informed
Mr Somers that she could not handle working in a stony silence as Mr Cowell
pretended that nothing had happened. When Mr Jensen reported back to Mr Somers
and Mr Ronfeldt, his instructions were changed. Mr Jensen stated that it was not his
practice to conduct such mediations, or preliminary investigations concerning their
suitability, on a confidential basis. He did not treat his changed instructions as
warranting confidentiality either. Mr Jensen and Mr Somers, with Mr Ronfeldt,
developed a project for Mr Jensen to report about what had occurred in the
workplace. Each of Mr Cowell and the plaintiff would receive, independently,
professional counselling from Mr Jensen’s business partner, Mr Peter Veenhuisen.
119
Mr Jensen reported on 3 August 2007. His report set out the allegations that had been
made by the plaintiff and the response received from Mr Cowell, with Mr Jensen’s
assessments
of
these
allegations
and
responses.
Mr Jensen’s
advice
and
recommendations in his report are of no assistance to the court and have been
ignored. Mr Jensen’s accuracy as a note taker was not challenged. Mr Cowell mostly
accepted that he had responded as Mr Jensen had recorded. He took issue with
Mr Jensen’s statement that he referred to the plaintiff as being ‘like a teenager’.
Mr Cowell maintained that he did not use those words but had suggested that the
plaintiff had a propensity to ask him rather than look for herself. Mr Jensen used the
phrase ‘He also added that managing her is like dealing with a child’ and Mr Cowell
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conceded that he had used words to that effect, perhaps wrongly trying a crude
analogy.
120
I prefer Mr Jensen’s evidence to that of Mr Cowell. On the basis of my findings as
already stated, I am satisfied that Mr Cowell did regard dealing with the plaintiff as
like dealing with a child or a teenager. In many respects his attitude towards the
plaintiff, as she recounts it, was consistent with Mr Cowell holding that opinion. In his
detailed response to Mr Jensen about what happened on 23 and 24 July, Mr Cowell
made no mention of being concerned about bending around the plaintiff’s legs or
behind her, as he suggested in the witness box was his concern. I am satisfied that
Mr Cowell was reconstructing this concern.
121
Mr Jensen told the plaintiff the substance of his recommendations to Legibook. She
understood that Mr Jensen was very concerned for her health and thought that
Mr Cowell was unfit for any workplace and should be sacked and that the plaintiff
should never work together with Mr Cowell again.
122
On 6 August 2007, the plaintiff consulted her general practitioner who referred her to
a clinical psychologist.
123
On 17 August 2007, the plaintiff met with Mr Somers and Mr Esnault at the office of
Russell Kennedy solicitors when Mr Somers explained, yet again, that the board
intended to resolve the situation by bringing in employment contracts, workplace
policies, counselling for each employee and a system of separate split shifts so that
they would not work together. On 30 August 2007, the defendant wrote to each of the
plaintiff and Mr Cowell explaining their proposal and confirming the observations
and recommendations that had been made by Mr Jensen. The defendant sought
written consent to participate in the proposed psychological assessment.
124
In its letter to Mr Cowell, the defendant confirmed that it had accepted the
observations and recommendations that had been made to it by Mr Jensen stating:
Mike Jensen has found that your conduct towards Wendy Swan constituted
workplace bullying, particularly where you:
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(1)
displayed anger towards Wendy;
(2)
made comments that made her feel unwelcome or demeaned; and
(3)
made other comments or displayed other forms of conduct that
suggested to Wendy that you have a low regard for her.
The board hopes to see the restoration of a safe, productive and positive
working relationship between you and Wendy Swan. In order to enable you to
achieve this, the board has determined with Mike’s assistance a process that
involves the provision of a range of professional support to both you and
Wendy Swan.
Later in the same letter the board stated:
In the event that the board is not assured that the preliminary evaluation report
demonstrates that there are well founded prospects that the relationship
between you and Wendy Swan can be restored to being a safe, productive and
positive working relationship, or if you engage in any further conduct that
constitutes workplace bullying, the board will have no alternative but to
terminate your employment.
125
In a letter to Mr Veenhuisen of the same date, the board engaged him to undertake a
psychological evaluation of each of Mr Cowell and the plaintiff and it stated that:
Mrs Swan has recently complained of Mr Cowell’s treatment of her, suggesting
that he has bullied and victimised her. An investigation by the board, with the
assistance of Mike Jensen, has determined that Mr Cowell’s behaviour has been
inappropriate and requires immediate modification.
126
On 3 September 2007, the plaintiff provided her written consent to participating in the
process while also accepting the board’s offer to provide free confidential counselling
with a counsellor of her own choice. Mr Cowell appeared to be prevaricating about
consenting to the process and the board on 13 September 2007 restated its
determination that his conduct towards the plaintiff was inappropriate and
constituted workplace bullying. In reality, as Mr Cowell explained in the witness box,
shortly after receiving the letter of 30 August 2007 he decided to seek alternative
employment. Although he resigned his position, the plaintiff believed that he was
dismissed.
Expert psychology evidence
127
The plaintiff called two witnesses to give opinion evidence. The first was Toni
Mellington, a clinical psychologist specialising in workplace psychology and health
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psychology. The second expert called was Dr Anne Wyatt. I accept the evidence of
each of these witnesses.
Evidence of Ms Mellington
128
Ms Mellington gave evidence of possessing particular experience with workplace
bullying including specialist academic training and academic writing and some
conference presentations on the subject. She had prepared reports and given evidence
in court on prior occasions. Her expertise was not challenged.
129
Ms Mellington’s opinions were expressed on the basis of assumptions drawn from an
interview with the plaintiff conducted over Skype and documentation provided by
the plaintiff’s solicitors. Ms Mellington accepted that the relevance of her opinions
was dependent upon acceptance of her assumptions, on which she was extensively
cross-examined. Ms Mellington administered a ‘Workplace Bullying Inventory’,
which she had developed, and from which she concluded that the plaintiff reported
being exposed to a variety of behaviours that could be considered to form a repeated
pattern of unreasonable behaviour that creates a risk to health and safety. She
considered that the book throwing incident and the calculator incident were examples
of occupational violence. In the inventory testing, the plaintiff identified the following
behaviours, which produced a ‘very severe’ impact upon her:

Using put downs, insults or sarcasm to regularly humiliate me.

Being repeatedly shouted at or screamed at.

Being spoken to in rude, foul or offensive language.

Physical assault.

Being deliberately left out of my workplace activities.

Excessive scrutiny of my work and whereabouts.

Intimidation and being threatened.

Request for help or advice being constantly ignored.

Having my views and opinions constantly put down.
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
Repeated reminders of errors or mistakes.

Given very little work to do.

Threats of transfer or the sack.

Information or equipment that I need to do the job being hidden / destroyed /
deleted.
130
Ms Mellington further assumed that the plaintiff had been diagnosed by her treating
medical practitioner Dr Judith Risely with an anxiety disorder with depression,
secondary
to
sustained
workplace
bullying.
Ms Mellington
reviewed
the
comprehensive history provided by the plaintiff’s treating psychologist, Ms PerrettAbrahams and found it consistent with that provided by the plaintiff to her. She noted
that Ms Perrett-Abrahams’ diagnosis was of ‘a chronic adjustment disorder with
chronic depression and chronic anxiety’ and that the plaintiff had suffered the injury
following prolonged subjection to workplace bullying, abuse, and harassment. She
noted that Ms Perrett-Abrahams’ psychological testing indicated that the plaintiff has
sustained severe depression and moderate to high anxiety. Ms Mellington also noted
two psychiatric assessments. Dr Michael Epstein had concluded that the plaintiff had
experienced ‘a breakdown in her capacity for coping arising from workplace
harassment, manifest by the development of a chronic adjustment disorder with
anxious and depressed mood’. Dr Paul Kornan considered that ‘her symptoms clearly
indicate the more significant situation of her having, in fact, not just an adjustment
disorder, but of her generalised anxiety symptoms and also features of a major
depressive disorder’. Each of these practitioners confirmed these opinions in evidence
at trial.
131
In the plaintiff’s self-assessment by the Workplace Bullying Inventory, such
behaviours were rated as ‘very severe’ impact. When cross-examined, Ms Mellington
was unable to recall or give examples that specifically illustrated the behaviours that
she assumed. I am satisfied that the identified assumed behaviours have been
substantially established on the evidence and that the opinions expresse d by
Ms Mellington are relevant and admissible. I am satisfied that Ms Mellington treated
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the plaintiff’s impact ratings as subjective information. Ms Mellington suggested that
Mr Cowell’s behaviours might be described as a ‘managerial control tactic’.
132
Ms Mellington correctly assumed, from documentation provided to her, that the
board had acknowledged the complaint of inappropriate behaviour in the workplace
but had inappropriately failed to investigate and follow up on such complaints with
appropriate intervention. While reporting such behaviour to the employer was an
appropriate action for the plaintiff to have taken, research shows that response to be
the most unsuccessful action for resolving bullying. Inappropriate organisational
responses can in fact further harm an employee. In this case, it appears that the
defendant appropriately identified a need to intervene, and need for policies,
procedures, induction check lists and position description, but inappropriately these
interventions were not forthcoming. Drawing on research that demonstrated that poor
workplace organisation creates positive motivation for supervisory bullying,
Ms Mellington suggested that the defendant’s response to the plaintiff’s concerns
were insufficient, not timely, and inappropriate. The board’s response could be
considered a contributing factor to enabling harmful behaviour to continue .
133
In Ms Mellington’s opinion, the referral of the complaints to Mr Jensen in 2007 was an
appropriate action to be taken by the board. However, in her opinion, this
intervention was unreasonably late and ought to have been initiated in 2003.
Ms Mellington explained that early intervention by the employer is essential for a
workplace bullying target to avoid injury because the mutual relationship between
bullying and psychological distress can indicate a vicious cycle where bullying and
distress reinforce their own negative effects. The medical evidence supported this
observation. She concluded that the documentation suggested that the board was
aware not only of the plaintiff’s concern but also of the risks and had ample
opportunity for earlier intervention. Inaction by an employer, as here occurred, can
result in poor workplace organisation which in turn creates positive motivation for
supervisory bullying. Further, it appeared to Ms Mellington, and I accept that this is
so, that the repercussions of the board failing to follow through on their committed
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action was interpreted by the plaintiff as a lack of support and inaction, which her
treating practitioners concluded contributed to her ill-health.
134
Ms Mellington suggested that psychological research showed that the steps that a
reasonable employer could take to prevent and manage reported or observed negative
workplace behaviour included:

developing
written
policies
on
workplace
bullying
for
proactive
implementation;

clear statements to all employees that the organisation does not tolerate
workplace bullying;

providing clear descriptions of the types of behaviour that constitute
workplace bullying;

appointing an appropriately trained contact person to facilitate information
and support to employees;

implementing the defined procedures for handling complaints;

mandatory training of managers concerning such behaviour;

training of employees in relation to workplace bullying, their rights and
responsibility and the opportunities for assistance;

encouraging a culture that empowers witnesses to workplace bullying to speak
out and support colleagues in investigations; and

procedures and processes for review and evaluation of behaviours in the
workplace and the organisational response.
135
Ms Mellington added that research showed that bullying victims often do not
recognise what is going wrong with them and they are unable to identify precisely
why they are feeling bad and their health is deteriorating. Commonly, a victim will
internalise what is going on and believe he or she has caused the behaviour to which
he or she is exposed. The common responses of victims are that they just want the
behaviour to stop and that they just want to do their jobs.
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136
Ms Mellington was critical of the board’s invitation to the plaintiff to indicate to the
board what choice she wanted the board to make, particularly where that choice was
offered in a communication about the board’s proposed response that never
eventuated. The likely psychological consequences was that the plaintiff wou ld
minimise her complaint and be less ready or willing to report issues in the future.
Evidence of Dr Wyatt
137
Dr Anne Wyatt, a psychologist, practises as a specialist consultant in occupational
health and safety with particular expertise and special interest in psychological safety
at work and workplace bullying. Her considerable professional experience and
academic qualifications and writings were not challenged. She has considerable
experience in providing expert opinions in relation to workplace litigation.
138
The assumed basis for Dr Wyatt’s opinions was drawn from documents and reports
provided by the plaintiff’s solicitors, which are in evidence, and a two hour telephone
interview with the plaintiff. Dr Wyatt noted that Legibook did not appear to have any
relevant workplace policies, although the Monash University bullying policy
provided a model which could have been adopted. There was no evidence of any
occupational health and safety audits or inspections being carried out at the
bookroom. The plaintiff had no proper position description, which was significant
because ‘role ambiguity’ between Mr Cowell and the plaintiff appeared to increase
tensions between them when clear job descriptions, including reporting lines, could
have provided much needed clarification.
139
Dr Wyatt assumed that Mr Cowell’s ongoing behaviour was characterised by the
following conduct:

Regularly threatening her with the sack when he did not have the power to do
this.

Throwing a book at the plaintiff intending to hit her.

Not keeping her informed and waiting for her to make mistakes so he could
correct them.
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
Not completing his designated tasks, such as a reconciliation, and in doing so
preventing her from doing her work.

Butting into her conversations with inappropriate comments.

Making instructional comments in front of big queues of students.

Behaving unreasonably towards foreign females.

Throwing the phone down a lot.

Pulling down or not putting up signs.

Vetoing the plaintiff’s suggestions and then adopting them as his own several
months later.

Rearranging the furniture without consultation.

Dismissing the plaintiff’s occupational health and safety concerns about trip
hazards, the trolley and other issues.

Arranging the plaintiff’s desk to preclude her view of customers entering the
store and requiring her to twist and turn.
140
Dr Wyatt also noted that other persons such as students, lecturers and banking staff,
who observed Mr Cowell’s behaviour, would talk about it when he was not present.
141
Dr Wyatt was cross-examined on her notes at some length about the basis from which
these assumptions about Mr Cowell’s behaviour were drawn. Other assumptions
made by Dr Wyatt, particularly concerning the defendant’s response to the plaintiff’s
complaints, were not controversial, evident from the documentation with which she
was briefed. Notwithstanding that Dr Wyatt was unable to recall specific or detailed
examples of the conduct summarised on which her conclusion was founded and that
not all examples have been proved by the evidence precisely as she described them, I
am satisfied, on the basis of the findings I have made, that the plaintiff has sufficiently
established the assumed facts upon which Dr Wyatt’s opinions are expressed so as to
render them relevant to, and admissible on, the issues to be determined in this
proceeding.
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142
Dr Wyatt’s opinion was that the plaintiff was exposed to an unacceptable risk of
psychological injury due to the unresolved, repeated bullying and violence that she
experienced at work between August 2002 and August 2007. Mr Cowell’s behaviour
was, in the witness’ opinion, repeated, unreasonable, and directed towards the
plaintiff. It created a risk to the plaintiff’s health and safety and thus constituted
workplace bullying.
143
Dr Wyatt considered that the defendant failed to manage the hazard presented by
Mr Cowell’s unacceptable behaviours because it failed to properly investigate the
complaints made in 2003. In her view, had satisfactory work processes been in place
and procedures and practices then implemented to prevent or manage bullying and
violence at work, the plaintiff would not have been as severely injured as she was.
144
Dr Wyatt considered that the situation revealed by the plaintiff’s complaint in 2003
was not one of mere conflict or interpersonal disagreement. Severe bullying and
violence had taken place; the gravity of which the plaintiff had clearly raised and she
should not have been expected to continue to work in such an unsafe situation. In
Dr Wyatt’s opinion, a formal warning was then warranted.
145
Further, the defendant should have implemented a fully documented occupational
health and safety risk management program with the following features:

Policy development/enforcement and implementation (including about
workplace bullying).

Provision of adequate supervision, training and information.

Risk identification, assessment and control.

Consultation with employee/performance appraisal.

Encouragement of hazard and incident reporting.

Response to incident reporting.

Grievance reporting.

Disciplinary procedures.
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146

Implementation of hazard controls.

Ensuring safe return to work procedures were implemented.

Monitoring and evaluation.
For Dr Wyatt, it was significant that Mr Cowell, as the perpetrator, was not called to
account by the employer. I agree. In Dr Wyatt’s opinion, had the defendant
implemented an appropriate organisational policy, the risk assessment would have
identified hazardous behaviour and its potential to cause considerable harm to the
plaintiff. I am satisfied that the defendant nonetheless had recognised the risk that the
plaintiff might be harmed. Dr Wyatt considered that reasonable steps could have been
taken to prevent the plaintiff’s injury and had she been adequately supervised in
terms of the safety of her system of work from the outset, it is likely that she would
not have sustained injury. In expressing this opinion, Dr Wyatt drew on a Worksafe
Victoria publication in February 2003. 6 Dr Wyatt considered that Mr Somers, as the
plaintiff’s supervisor to whom she reported her concerns from 2003 onwards, failed to
properly manage the problem until it was too late. She suggested that Mr Somers may
not have had the appropriate training that would have equipped him to b etter
manage the situation. There was no evidence of any relevant training undertaken by
Mr Somers or of his experience in the management of employees in a work place.
147
Dr Wyatt identified the following circumstances as critical:
(a)
The plaintiff was never given a position description for her job. A position
description would have given her a chance to point out how unreasonable and
intimidatory the directions given to her by Mr Cowell were. The failure of the
board to implement employment contracts and workplace policy caused the
plaintiff to perceive that her complaints had fallen on deaf ears.
(b)
Although it is well known that early reporting of hazards and timely and
adequate follow-up decreases the risk of injury, the plaintiff recognised that the
6
‘Guidance Note. Prevention of Bullying and Violence at Work’, a publication that was readily available
and which would have been easily comprehended by the board.
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grievance procedure began with her report to Mr Somers in 2003 but the
defendant failed to conduct an early investigation and timely follow-up or set
up and implement formal documented policies and systems.
(c)
In August 2007, the situation was far beyond remedy by counselling or
mediation. Disciplinary action was called for and the plaintiff should not have
been expected to continue to work with Mr Cowell when he had targeted her
with severe workplace bullying over a long period of time.
(d)
The circumstances of the plaintiff’s return to work program were unhelpful. (I
will come to this in due course.)
148
Once the board had the plaintiff’s initial report of Mr Cowell’s conduct in 2003, the
likely continuance of the bullying hazard, if unchecked, was foreseeable. The plaintiff
was working in an unsafe environment and the board failed to prevent her exposure
to multiple workplace hazards.
149
The plaintiff’s failure to more regularly report her ongoing concerns to the board
throughout her employment were explicable. She did not consider that it was in her
best interests to do so because she enjoyed every aspect of her job except working
with Mr Cowell when he behaved unreasonably. She did not want to lose her job.
Secondly, it appeared that the plaintiff stayed for so long in the job because she had
never had problems in a workplace before and thought that she could cope. Dr Wyatt
considered that the plaintiff, for some time, truly believed that she could work around
the unacceptable behaviours that were perpetrated on her because every other aspect
of her job gave her great satisfaction. Dr Wyatt’s experience was that fear of job loss,
job satisfaction and status often compel people to stay in appalling work situations.
Liability findings
Mr Cowell’s conduct
150
The Worksafe Victoria Guidance Note, to which I have already referred, provides a
definition of workplace bullying in these terms:
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Workplace bullying is repeated, unreasonable behaviour directed toward an
employee, or group of employees, that creates a risk to health and safety.
Within this definition ‘unreasonable behaviour’ means behaviour that a
reasonable person, having regard to all the circumstances, would expect to
victimise, humiliate, undermine or threaten; ‘behaviour’ includes actions of
individuals or a group, and may involve using a system of work as a means of
victimising, humiliating, undermining or threatening; ‘risk to health and
safety’ includes risk to the mental or physical health of the employee.
This definition recognises the relationship between conduct and the risk to health and
safety. In the present circumstances I am concerned with that relationship in the
context of risk of a psychiatric or psychological injury.
151
In Mount Isa Mines Ltd v Pusey,7 Windeyer J observed that, ‘It is however today a
known medical fact that severe emotional distress can be the starting point of a lasting
disorder of mind or body, some form of psychoneurosis or a psychosomatic illness.
For that, if it be the result of a tortious act, damages may be had’. As Sheller JA
observed in O’Leary v Oolong Aboriginal Corporation Inc,8 cases in the ensuing four
decades since Mount Isa Mines Ltd v Pusey ‘demonstrate judicial recognition that the
medical profession’s view of the aetiology of such disorders has been accepted by the
lay world’.
152
The definition provided in the guidance note emphasises relevant features of that
aetiology. An established pattern of behaviour is significant, as its persistent nature
creates the foreseeable risk to health. The subject behaviours, under the rubric of
bullying, have the characteristic of victimising, humiliating, undermining or
threatening the victim and the definition requires that a reasonable person would
expect the relevant behaviour in all of the circumstances to have that effect. The
essential characteristics of behaviour that may create a risk to the mental or physical
health of an employee are that it is both repeated and unreasonable.
153
On the basis of the findings that I have expressed above, I am satisfied that Mr Cowell
engaged in an established pattern of workplace bullying as so described. He did so,
particularly in the period from August 2002 to April 2003. I am satisfied that his
7
8
(1970) 125 CLR 383, 394-395.
[2004] NSWCA 7 [124].
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behaviour during that period, as I have found it, would be expected by a reasonable
person to humiliate, intimidate, undermine or threaten the plaintiff. The incidents of
occupational violence were, from 2003, intermittently reinforced with an expectation
that such violence might be repeated, engendered by other conduct that did not
involve an immediate apprehension of physical violence throughout the period of the
plaintiff’s employment by the defendant until August 2007. Although the pattern of
Mr Cowell’s behaviour was episodic and, after 2003, not characterised by explicit
incidents of occupational violence, his conduct characterised the work environment as
one in which the plaintiff was subject to stress and emotional distress, humiliation and
belittling conduct, intimidation and aggressive managerial direction. In a restricted
and confined workplace environment, such behaviours imposed substantial, and
significant, emotional stress and distress on the plaintiff. I find that Mr Cowell’s
conduct in the workplace threatened to, and did, damage the mental health and
wellbeing of the plaintiff throughout the course of her employment by the defendant.
Did the defendant breach a duty of care?
The applicable principles
154
On the pleadings, the plaintiff put her claim as a direct liability of the defendant to her
for an unsafe place and system of work and a failure to efficiently supervise her work.
The defendant admits that it was at all material times under a duty to the plaintiff to
take reasonable care for her safety by providing a safe place of work and a proper and
safe system with efficient supervision. 9 This admission does not address the important
issue in this case which is, in the context of a claim for work related psychiatric injury,
the content of an employer’s duty of care. Rather, the admitted duty is so broad as to
be devoid of meaningful content. As the High Court stated in Kuhl v Zurich Financial
Services Australia Ltd10 :
Different classes of care may give rise to different problems in determining the
nature or scope of a duty of care. In many cases a duty formulated as being one
to take "reasonable care" may suffice for the finding of duty in that particular
case. Cases that involve the duty of a solicitor to his or her client to exercise
professional skill in accordance with the retainer, the duty of a motorist
9
10
See generally Czartyrko v Edith Cowan University (2005) 214 ALR 349, (2005) 79 ALJR 839.
[2011] HCA 11, [22]
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towards other users of the road, or the duty owed by an occupier of land to an
entrant with respect to the condition of the premises, ordinarily involve no real
controversy over the scope and content of the duty of care; these are
considered at the "high level of abstraction" spoken of by Glass JA in Shirt v
Wyong Shire Council. But where the relationship falls outside of a recognised
relationship giving rise to a duty of care, or the circumstances of the case are
such that the alleged negligent act or omission has little to do with that aspect
of a recognised relationship which gives rise to a duty of care, a duty
formulated at too high a level of abstraction may leave unanswered the critical
questions respecting the content of the term "reasonable" and hence the content
of the duty of care. These are matters essential for the determination of this
case, for without them the issue of breach cannot be decided. The appropriate
level of specificity when formulating the scope and content of the duty will
necessarily depend on the circumstances of the case. 11 [Citations omitted]
155
In the leading decision Koehler v Cerebos (Australia) Ltd,12 the High Court rejected the
proposition that reasonable foreseeability alone was the determinant of the content of
the duty of care in a psychiatric injury case. As observed in Kuhl, the scope and
content of the duty necessarily depend on the circumstances of the case. Psychiatric
injury in the workplace can be suffered in at least two distinct scenarios, bullying and
employee behaviour circumstances, and also overwork or workload circumstances.
The authorities discussing workplace psychiatric injuries should be read with this
distinction in mind. Koehler was not a bullying case. In that case the plaintiff had told
her supervisor on many occasions that she could not cope with the volume of her
work. Although she suggested ways to solve the problem, she did not tell her
employer that her health was being affected. The employer did not adopt her
suggestion that she was unable to maintain her performance of the workload and she
was diagnosed with a psycho-physical disorder.
156
In Hegarty v Queensland Ambulance Service13 Keane JA (as his Honour then was)
referred to Koehler in the following terms:
In the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in the
recent decision of the High Court in Koehler v Cerebos (Australia) Ltd (2005) 222
CLR 44 esp at 53–55 [19]–[25] it was said that a stable appreciation of the
content of the employer's duty to take reasonable care is essential; and that it is
erroneous to proceed on the assumption that "the relevant duty of care [is]
sufficiently stated as a duty to take all reasonable steps to provide a safe system
of work without examining what limits there might be on the kind of steps
11
12
13
[2011] HCA 11; (2011) 243 CLR 361 [22].
[2005] 222 CLR 44.
[2007] QCA 366.
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required of an employer." Further, "litigious hindsight" must not prevent or
obscure recognition that there are good reasons, apart from expense to the
employer, why the law's insistence that an employer must take reasonable care
for the safety of employees at work does not extend to absolute and
unremitting solicitude for an employee's mental health even in the most
stressful of occupations. A statement of what reasonable care involves in a
particular situation which does not recognise these considerations is a travesty
of that standard. 14
157
In Hardy v Mikropul Australia Pty Ltd,15 J Forrest J drew the following further factors
from the High Court’s analysis in Koehler as relevant in determining the content and
scope of an employer’s duty of care:
(a)
the contract of employment;
(b)
the nature and extent of the employee’s work;
(c)
any signs from the employee concerned (for example, in the form of express
warnings or the implicit warning that may come from frequent or prolonged
absences that are uncharacteristic); and
(d)
an assumption that the employee taking on the employment is capable of doing
the job.
Forrest J too was not concerned with workplace bullying. The plaintiff in that case
sought damages for a depressive illness associated with alcoholism and drug
addiction that he contended were caused by being exposed to a drinking and drug
culture with his fellow employees in, and about, his employment.
158
In Taylor v Haileybury,16 Beach J agreed with Forrest J’s analysis of Koehler in Hardy.
The plaintiff in Taylor claimed damages as a result of a psychiatric breakdown caused
by overwork in the course of his employment as a school teacher.
159
Before me, the defendant contended that the following observations of the plurality in
Koehler, that were influential in the reasoning of Beach J in Taylor, were equally
persuasive in the present circumstances:
14
15
16
At [47].
[2010] VSC 42 (3 March 2010).
[2013] VSC 58 (22 February 2013).
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160
[33]
In Tame v New South Wales, the Court held that ‘normal fortitude’ was
not a precondition to liability for negligently inflicting psychiatric
injury. That concept is not now to be reintroduced into the field of
liability as between employer and employee. The central inquiry
remains whether, in all the circumstances, the risk of a plaintiff (in this
case the appellant) sustaining a recognisable psychiatric illness was
reasonably foreseeable, in the sense that the risk was not far fetched or
fanciful.
[34]
It may be right to say that it is now a matter of general knowledge that
some recognisable psychiatric illnesses may be triggered by stress. It is,
however, a further and much larger step to take to say that all
employers must now recognise that all employees are at risk of
psychiatric injury from stress at work. Yet it is that proposition, or one
very like it, which must lie behind the Commissioner’s conclusion that
it required no particular expertise to foresee the risk of psychiatric
injury to the appellant.
[35]
The duty which an employer owes is owed to each employee. The
relevant duty of care is engaged if psychiatric injury to the particular
employee is reasonably foreseeable. That is why, in Hatton, the relevant
question was rightly found to be whether this kind of harm to this
particular employee was reasonably foreseeable. And, as pointed out
in that case, that invites attention to the nature and extent of the work
being done by the particular employee and signs given by the employee
concerned.17
In the context of Koehler what was significant was that although the employee had
made many complaints to her superiors, none of those complaints suggested that her
attempts to perform her duties would put her health at risk. She did not suggest any
vulnerability to psychiatric injury or that the work was putting her at risk of such an
injury. Her complaints may have been understood as suggesting an industrial
relations problem, but they did not suggest danger to her psychiatric health. Legibook
contended that these considerations were here apposite.
161
In Taylor, Beach J drew from the decision in Hegarty a number of observations with
which he agreed:18
17
18
(a)
First, in a negligent infliction of psychiatric injury case, the risk of injury
may be less apparent than in cases of physical injury.
(b)
Secondly, whether a risk is perceptible at all may in the end depend
upon the vagaries and ambiguities of human expression and
comprehension.
Koehler (2005) 222 CLR 44, 56-58 [33]-[35].
Taylor at [116].
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162
(c)
Thirdly, whether a response to a perceived risk is reasonably necessary
to ameliorate that risk is also likely to be attended with a greater degree
of uncertainty; the taking of steps likely to reduce the risk of injury to
mental health may be more debatable in terms of their likely efficacy
than the mechanical alteration of the physical environment in which an
employee works.
(d)
Fourthly, the private and personal nature of psychological illness, and
the consequential difficulties which attend the discharge of an
employer’s duty in this respect, must be acknowledged as important
considerations.
(e)
Fifthly, the dignity of employees, and their entitlement to be free of
harassment and intimidation, are also relevant to the content of the
duty that might be asserted by a plaintiff.
(f)
Sixthly, issues of some complexity arise in relation to when and how
intervention by an employer to prevent mental illness should occur,
and the likelihood that such intervention would be successful in
ameliorating an employee’s problems.
In the result in Taylor, Beach J identified a number of hallmarks of ‘litigious hindsight’
but the decision in that case turned on a careful examination of the terms and
conditions of employment. The court concluded that while the plaintiff’s workload
was undoubtedly heavy, it was the job that he chose to do at the time he commenced
his employment with the defendant and without the benefit of hindsight there was no
reason for the defendant to suspect that the workload it required of the plaintiff
placed him at any risk of psychiatric injury.
163
Although the general principles that are identified in these decisions are plainly those
that must be applied in determining the content of the defendant’s duty of care in the
circumstances, there are material distinctions between stressful situations that are a
consequence of accepted working conditions or work overload and those that are a
consequence of unreasonable behaviour in the form of workplace bullying by a work
colleague. The plaintiff did not choose to work with a bully, or work in stressful
conditions arising other than from the nature and extent of the tasks that she agreed to
perform. The plaintiff’s complaints to the board were not about the onerous nature of
the tasks. Her complaints suggested, and were understood as suggesting, her
psychiatric health may have been at risk albeit that the complaints might also be
suggesting an industrial relations type problem.
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164
Returning to the propositions drawn from Hegarty, here the risk of injury was
apparent and was seen by the defendant in 2003. This case does not turn on any
vagaries or ambiguities of human expression and comprehension. The board minutes
and the email and other communications by Mr Somers demonstrate a plain
anticipation of a risk of psychiatric injury to the plaintiff from Mr Cowell’s conduct, as
the plaintiff described it. The third point lacks traction in these circumstances because
when the appropriate response of an employer to the plaintiff’s complaint is identified
by expert opinion, it is plain that to a significant degree the defendant recognised in
2003 what it needed to do. There is no need to debate whether what it thought it
needed to do was sufficient because it did nothing at all.
165
The other considerations identified, although generally important, must be evaluated
in the context of the plaintiff’s complaint to the board. Bearing in mind the expert
opinion before the court, in my view these considerations reinforce the culpability of
the defendant’s failures to act promptly and decisively in 2003 and to have done in
2003 what it recognised as an appropriate response in 2007.
166
The defendant contended that the plaintiff’s complaints did not indicate either
explicitly or implicitly any particular vulnerability on her part to Mr Cowell’s conduct
or any vulnerability to stress other that what is an inevitable concomitant of everyday
life including working life. The defendant contended that the plaintiff coped with
Mr Cowell’s behaviours and never complained of distress or of any symptoms that
might, even implicitly, forewarn of possible psychiatric injury. Further, the defendant
contended that it would have been inappropriate, arguably a breach of duty in itself,
for Mr Somers, or any other member of the board, to have spoken with Mr Cowell
about the issues when the plaintiff had asked them not to do so.
167
I do not accept that characterisation of the plaintiff’s response in 2003. First, she
plainly stated she did not wish to feel threatened or uncomfortable in her workplace
and the board members, between themselves, referred to her complaint as one of
being bullied. This was not everyday workplace stress that had been consented to by
the employee in taking the position. Second, the risk of psychiatric injury from
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bullying behaviour is well understood. That consequence is not far fetched or fanciful.
In fact, it was appreciated by the board. Third, all the plaintiff was invited to do was
to make a choice between a formal warning to Mr Cowell and doing nothing. In the
context of an express indication that other steps would be taken by the board , while
the plaintiff may have agreed in those circumstances that Mr Cowell not receive
formal warning, she did not agree, as the defendant submitted, that it was
inappropriate to have spoken with Mr Cowell about the board’s expectations, in
general terms, about workplace bullying issues or appropriate workplace behaviour
in the bookroom. Moreover, her ‘choice’ was plainly made in the context of a
representation by the board about the action that it proposed, and later failed, to take.
Finally, the employer is under an affirmative obligation to actively conside r
amelioration of a risk of injury and cannot abrogate that responsibility to its
employee.
168
As my findings demonstrate, no question of foreseeability, objectively assessed , of a
risk of a psychiatric injury to the plaintiff from conduct of the type complained of
arises in this case. Mr Somers was told in writing that the plaintiff considered she was
working under very strained conditions because she was being continually subjected
to sarcasm, hostility, rudeness and violent behaviour, threat of termination or lack of
consultation within the workplace. Mr Somers immediately appreciated that such an
environment within Legibook could cause a psychological or psychiatric injury to the
plaintiff and the board’s awareness of that risk is plainly evident in minutes of its
meetings and in written communications between directors from 25 March 2003. The
duty of care to take reasonable care for the plaintiff’s mental health in the context of a
risk that she might be injured by workplace bullying was engaged by this time.
Findings about breach of duty
169
In New South Wales v Fahy19 Gummow and Hayne JJ emphasised that what an
employer, acting reasonably, must do by way of care for an employee is an is sue
which ‘requires looking forward to identify what a reasonable employer would have
19
[2007] HCA 20 [57].
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done, not backward to identify what would have avoided the injury’. While
recognising the need for circumspection in the evaluation of a reasonable employer’s
response to the plaintiff’s complaint in March 2003 by reference to the general
observations from Hegarty that I have set out above, I am satisfied that the defendant
did not exercise the standard of care reasonably expected of an employer in the
circumstances.
170
Although UK cases must be approached with care, the decision of the Court of
Appeal,20 in four appeals heard together, involving workplace induced psychiatric
injury is instructive, particularly on the question of breach and the response of a
reasonable employer. All of the appeals concerned stress from working conditions,
but the appeal in Jones also raised issues of stress through harassment by another
employee. It was a case where the job itself made unreasonable demands upon a
junior employee, and the management response to her complaints was itself
unreasonable.
171
In general observations applying on each appeal, after reviewing the authorities,
Hale LJ (as her Ladyship then was) delivering the judgment of the court, identified,
inter alia, the following practical propositions relevant to breach. 21
(a)
The employer is only in breach of duty if he has failed to take the steps which
are reasonable in the circumstances, bearing in mind the magnitude of the risk
of harm occurring, the gravity of the harm which may occur, the costs and
practicability of preventing it, and the justifications for running the risk.
(b)
The size and scope of the employer's operation, its resources, and the demands
it faces are relevant in deciding what is reasonable; these include the interests
of other employees and the need to treat them fairly, for example, in any
redistribution of duties.
20
21
Hatton v Sutherland, Barber v Somerset County Council, Jones v Sandwell Metropolitan Borough Council,
Bishop v Baker Refractories Ltd [2002] EWCA Civ 76, [2002] ICR 613.
Ibid, [2002] ICR 613, 632 [43].
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(c)
An employer can only reasonably be expected to take steps that are likely to do
some good: the court is likely to need expert evidence on this.
(d)
An employer who offers a confidential advice service, with referral to
appropriate counselling or treatment services, is unlikely to be found in breach
of duty.
(e)
If the only reasonable and effective step would have been to dismiss or demote
the employee, the employer will not be in breach of duty in allowing a willing
employee to continue in the job.
(f)
In all cases, therefore, it is necessary to identify the steps that the employer
both could and should have taken before finding him in breach of his duty of
care.
Although this list of considerations is of some value, I would not myself commit to
fourth and fifth propositions as applicable in Victoria, but neither consideration is
relevant to the present case.
172
In the Jones appeal, although there was no specific medical event that might have
alerted her employers to the risk of the breakdown that occurred, the employers did
know that excessive demands were being placed upon Mrs Jones. They also knew that
she was complaining of unreasonable behaviour by her immediate manager. These
complaints were taken sufficiently seriously for extra help to be arranged, not once
but twice, but it was not actually provided. She made two written formal complaints
that problems at work were causing harm to her health. The question was not
whether the conduct had in fact caused harm to her health before her breakdown.
Rather, was it foreseeable that the (conduct complained of) carried that risk for it to be
a breach of duty for the employers to continue placing unreasonable demands upon
Mrs Jones and not to follow through their own decision that something should be
done about it.
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173
The court concluded that the evidence before the judge was sufficient to entitle him to
reach the conclusion that it was. Hale LJ relevantly stated:22
Once it is concluded that the combination of the way in which she was being
treated and her formal complaints about it made injury to her health
foreseeable, it is not difficult to identify what might have been done to prevent
the injury which in fact occurred. The judge was entitled to conclude that
failure to do this caused her breakdown.
174
Apposite to the present circumstances is the finding of breach in Jones based on the
failure of the employer to follow through their own decision that something should be
done. In the Barber appeal, Hale LJ suggests23 , obiter, that the employer may have
breached a duty of care, if engaged, by failing to make further inquiries had
Mr Barber, at the relevant time, not simply told his employer that he was not coping
well, but made a more explicit reference to his health explaining the symptoms he was
experiencing.
175
In expressing my findings as to breach, I draw generally on what I have set out above
including the evidence of the witnesses Mellington and Wyatt. Three particularly
significant matters occurred in March 2003.
(a)
The board resolved that the plaintiff ‘did not have to put up with this conduct’
and that Mr Cowell should not have engaged in conduct that ‘marginalised the
plaintiff’.
(b)
The board recognised the want of position descriptions, employment contracts,
and behaviour policies was an omission by it requiring rectification.
(c)
Although the board failed to further investigate the complaint, and failed to
rectify its identified omission, it also failed to give any direction to Mr Cowell
about his dealings with the plaintiff. Its inaction came despite recognising that
because of its omission to give direction prior to April 2003, Mr Cowell had
developed some ‘rather arbitrary and brusque work practices’ in his dealings
with the plaintiff. One member of the board, Mr Fowles, considered that
22
23
Ibid, 637 [67].
Ibid, 635 [59]. In Barber, the Appeal succeeded because there was no duty of care engaged.
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counselling of Mr Cowell was warranted and he wrongly believed that
Mr Somers had actually done so.
176
I am satisfied that the behaviour of the defendant from March 2003 through until
August 2007 fell short of the expected standard of an employer in the following
respects:
(a)
The defendant failed to properly define the relations between it and its
employees and its employees inter se and articulate its expectations concerning
conduct in the workplace between employees, by job descriptions, employment
contracts and workplace behaviour policies.
(b)
It was immediately clear to the defendant in March 2003 that a want of written
position descriptions, written employment contracts and workplace behaviour
policies was contributing to the conflict between their two employees. The
defendant’s ongoing failure to put proper job descriptions, employment
contracts and workplace behaviour policies in place was never explained. That
inexcusable and unjustified conduct breached its duty of care to the plaintiff.
(c)
Further, the defendant’s failure to take those steps was exacerbated by its
repeated misrepresentations to the plaintiff that employment contracts, written
job descriptions and workplace behaviour policies were imminent.
(d)
The board failed in 2003 to introduce defined procedures for complaints of
inappropriate behaviour in the bookroom, or to appropriately train its
employees and its own members to deal appropriately with such behaviour
and complaints when it was occurring.
(e)
It was inappropriate for the defendant, purporting to act as a reasonable
employer, to rely on choices made by its employee as to the employer’s proper
response to the employee’s complaint especially when such choices were, at
least, induced by those misrepresentations. Seeking assurances from the
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plaintiff that she was happy with the board’s handling of her complaint in the
circumstances constituted an inappropriate response.
(f)
In considering the plaintiff’s complaint in March 2003, the board recognised
that it had given no direction to Mr Cowell as to his dealings with the plaintiff
and that this seemed to have led to Mr Cowell developing some rather
arbitrary and brusque work practices in his dealing with her.
(g)
The board recognised that Mr Cowell was keen to make a good impression
upon it and that appropriate workplace conduct should form part of an
employee
assessment
concerning
Mr Cowell.
Although
conceptually
appropriate, the board was negligent in failing to follow through with any
employee assessment that included consideration of appropriate workplace
conduct.
(h)
When determining in 2003 that a formal warning to Mr Cowell was not
appropriate, the board failed to give any consideration to informal responses,
for example, a direct personal communication with Mr Cowell that was not put
in the context of any complaint from the plaintiff, about the nature of
workplace conduct, including the way its employees related to each other that
the board expected at Legibook.
(i)
A reasonable employer ought to have directly investigated what was occurring
in the bookroom and intervened appropriately to deal with what had occurred.
Dr Wyatt considered that April 2003 was the appropriate occasion for
intervention by engaging a workplace mediator or conciliator like Mr Jensen.
(j)
The defendant had no formal system enabling employees to seek the assistance
of the employer when bullying conduct occurred. This was evidence d in a
number of respects. There was no complaints mechanism or system. Although
Mr Somers liaised with employees on behalf of the board, the system was ad
hoc. Further, there was no evidence that Mr Somers had any relevant training
or experience and the board’s response to the complaints in 2003 and 2005
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supports the conclusion that he did not. Apart from the failure to conduct any
formal investigation of the plaintiff’s complaint, there was, in 2003 and 2005, no
informal investigation either. Similarly, the board gave no informal warning
and there was no discussion, even at a general level, with Mr Cowell.
Consequently, the board never made a simple clear statement to Mr Cowell
that it would not tolerate behaviour in the bookroom of a character that could
constitute workplace bullying. Mr Cowell never knew of the board’s attitude to
conduct as described by the plaintiff, irrespective of any issue about whether
such conduct had occurred, or might again occur.
(k)
The board did not arrange for, or conduct for itself, any risk assessment, either
generally or of the circumstances raised by the complaints in 2003 and 2005.
The board failed to assess the risks that it identified in March 2003 could result
in Workcover claims by the plaintiff. The board did not properly monitor, on
an ongoing basis, the behaviour of its employees inter se. Its expressed
intentions to ‘chat regularly’ with its employees resulted at best in occasional
conduct mostly initiated by the plaintiff. This failure follows on its failure to
implement any policy or process. In the relevant sense, that risk of injury to the
plaintiff that the board identified was uncontrolled by it.
(l)
A further consequence following on the absence of any policy or process
concerning workplace conduct and behaviours was that Legibook’s response to
the plaintiff’s complaints was inadequate, and its want of a complaint and
grievance process permitted its inadequate response to fail all together, to slip
away without appropriate resolution. Although the defendant submitted that
the periods of no complaint, or of apparent calm in the workplace between
complaints, were significant, I do not agree. To the extent that the submission
was put to the existence of a duty, I have rejected it. The periods of apparent
functionality in the bookroom did not eradicate or alleviate the risks that had
been foreseen. When considering breach, a reasonable employer looking
forward to identify what it should have done to avoid injury, having identified
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a risk, could not simply assume that a continuing absence of complaint, or
renewed complaint, meant that the risk had abated. In this regard, the
defendant is purporting to rely on aspects of its breach of duty - a want of risk
assessment, follow-up procedures, and monitoring - to infer that the foreseen
risk had resolved and its failure to take such actions was not in breach of its
duty. I reject this contention. The absence of overt continuing behaviour, or
complaint about behaviour, is not evidence that the risk of harm to the
plaintiff’s mental health identified in March 2003 had abated, or could
reasonably be considered by a prudent employer to have abated.
(m)
A further aspect of the lack of proper policy and process was that Legibook had
no safe return to work procedure. The plaintiff’s return to work process was
not competently handled and will be further discussed below.
177
I am satisfied that the defendant failed to take reasonable care for the safety of the
plaintiff, specifically in terms of her mental health, in these particular respects.
Brown v Maurice Blackburn Cashman
178
Since judgment was reserved at the conclusion of the trial, the Court of Appeal has, in
Brown v Maurice Blackburn Cashman, 24 upheld the decision of a County Court judge
rejecting a workplace bullying claim against an employer. The solicitor plaintiff’s
central allegation was that after she returned from maternity leave she was
systematically undermined, harassed and bullied by a fellow employee solicitor in a
law firm. It was alleged this conduct occurred or continued despite the plaintiff’s
complaints and requests for intervention made to the defendant’s managing partner.
The case involved an allegation of vicarious liability for acts of the employee and of
direct liability for an unsafe system of work. The Court of Appeal referred to the
definition of bullying, which I have set out above and which the trial judge had used,
in evaluating the sequence of events, complaints and responses.
24
[2013] VSCA 122 (22 May 2013).
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179
The circumstances of Brown invoked the concept of workplace stress that was
injurious to health in both categories, that is, from the performance of agreed duties
and from the alleged bullying conduct or behaviour of a fellow employee. Concerning
the former, the court noted that the plaintiff’s agreement to act as the managing
partner of the Family Law Department ran contrary to the contention that the
employer ought reasonably to have appreciated that the performance of her duties
posed a risk to her psychiatric health. The court’s analysis,25 in accordance with the
observations of the plurality in Koehler, of the trial judge’s findings concerning the
nature and extent of the work being done by Brown and the signs given by Brown led
the employer to conclude that the plaintiff’s complaints related to work management
issues between two solicitors. It was only when Brown warned her employer that
workplace stress was causing health issues, that a relevant duty of care was engaged.
180
The trial judge correctly assessed these complaints having regard to all the
circumstances of the case including in particular the context and objective meaning of
the acts complained of. Osborn JA stated:
Whilst I accept that MBC’s duty of care to its employees was informed by its
understanding of the potential link between work stress and the risk of
psychiatric injury, MBC’s knowledge of WorkSafe Victoria’s guidance note on
Prevention of Bullying and the managing partner’s knowledge of Law Institute
Journal articles identifying an obligation on legal practices to protect
employees from the risk of psychiatric injury in cases of perceived harassment,
none of these generalised background matters could be substituted for an
examination of the facts in the case as a basis for postulating a duty of care. 26
181
The plaintiff’s case was said to be founded on objective allegations of bullying. The
court rejected the attack on the trial judge’s findings that there was no systematic
harassment or repeated unreasonable behaviour and found no error in the individual
findings made by the trial judge concerning harassment. Osborn JA, in Legibook’s
submission pertinently for this case, stated:
Insofar as it may be true that in a given case a series of inappropriate
behaviours may collectively amount to bullying, when individually they
would not, the facts as found by his Honour simply did not establish a basis for
such a case. The appellant failed to prove materially inappropriate behaviours
25
26
Ibid, [168].
Ibid, [173]
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on the part of [the employee]. At best she established instances of robust
expression of frustration concerning workload made to a departmental head.
The appellant did not prove ‘repeated unreasonable behaviour’ directed
towards her which created a risk to health in accordance with the definition of
bullying adopted for the purposes of the case. 27
182
The consequence was that the notion of cumulative harassment did not assist Brown
in establishing that the risk of psychiatric injury was foreseeable prior to the date of
her warning by reason of the conduct of the employee towards her. The findings of
fact that no bullying occurred could not generate a reasonably foreseeable risk of
psychiatric injury to Brown and that the informed response, that her employer well
understood and which Brown claimed was appropriate in cases of bul lying, was
simply not called for.
183
This finding was significant since the critical task on the enquiry about breach of duty
was to identify the reasonable person’s response to foresight of the risk of occurrence
of injury of the type which the plaintiff allegedly suffered. The consequence of the
finding that there was no reasonable foreseeability of risk until the warning was that,
because the employer responded appropriately to Brown’s complaint promptly
following Brown’s warning, there was no breach of the duty of care once engaged.
184
Invited to make further submissions, the defendant contended that the circumstances
of the present case were analogous with Brown and the interactions between the
plaintiff and Mr Cowell were instances of robust expression of frustration and not
repeated unreasonable behaviour directed towards the plaintiff which created a risk
to her health. The absence of specific reference to any current or prospective impact of
the conduct complained of on the plaintiff’s health in her complaints in 2003 and 2005
precluded any finding that the duty of care was engaged before July 2007 follo wing
the plaintiff’s call to Mr Somers.
185
I reject this submission. Brown does not stand for the proposition that the defendant’s
duty is not engaged until the bullying conduct is actually affecting the plaintiff’s
health. The duty is engaged when a reasonably foreseeable risk of psychiatric injury to
27
Ibid, [187]–[188].
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the plaintiff is identified. The analysis of complaint about workload or work practices
and foreseeability of the relevant risk is an analysis of the evidence in each case, and
the facts of Brown are, in this respect, markedly different from the present case.
186
As I have found, when considering the plaintiff’s complaint in March 2003, the
defendant foresaw risk of occurrence of injury of the type which the plaintiff later
suffered. That risk was not far fetched or fanciful. It drew a proposed response that,
even though there was no follow through, demonstrates that the defendant’s duty of
care was engaged from March 2003. The defendant submitted, and I agree, that Brown
identified a critical task of a trial judge to be to identify the reasonable person’s
response to foresight of the risk of occurrence of injury of the type suffered.
Causation
187
The opinion evidence from the psychologists emphasised the importance of early
intervention to avoid or limit the damage and injury that flowed from sustained
workplace stress and its resultant impact on the plaintiff. I accept that evidence.
Further, I accept that the plaintiff herself did not recognise at the time that injury was
being done to her, that she was sustaining damage. Although she recognised that she
was experiencing some symptoms and was making a conscious decision to cope with
her circumstances, it was only in hindsight that she identified that she was sustaining
an injury. I accept that a plaintiff can suffer a breakdown through the cumulative
effect of bullying and harassing conduct and that this is what occurred here. The
plaintiff’s illness was manifest when she broke down in late July 2007.
188
The overwhelming views of the medical experts were consistent with her history. All
of the medical experts accepted that the bullying and harassment the plaintiff
suffered, when employed at Legibook, was a significant contributing factor to her
illness. The sustained exposure of the plaintiff in the workplace to the conduct of
Mr Cowell caused her injury and her present symptoms.
189
The defendant raised a particular issue concerning the plaintiff’s predisposition to
psychological injury, which I will discuss when dealing with the medical evidence.
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Legibook did not persuade me that any factor other than Legibook’s tort caused the
plaintiff’s psychiatric injury. The evidence could not establish at all, let alone with any
precision, what the plaintiff’s pre-existing constitutional factors were and what her
future would likely be. A reduction in the damages compensating the plaintiff for her
pain and suffering due to any contribution from her natural personality or the preexisting constitutional factors is not required.
190
I am satisfied that had the defendant acted prudently and appropriately in 2003, it is
likely that the plaintiff would not have suffered any, or any significant, psychological
injury and that the defendant’s negligence, as I have found it, was a cause of her
injury, loss and damage. The defendant’s conduct operated as a cause of the plaintiff’s
injury because she was unnecessarily and unreasonably exposed to stress factors in
her employment that cumulatively broke her mental health. Had the defendant
intervened as a reasonably prudent employer would have done, that exposure to
damaging stress factors would have been eliminated or alleviated, in severity,
duration, or repetition.
The quantum evidence
The course of treatment and assessment of the plaintiff’s injury
191
On the issue of the plaintiff’s injury and its consequences, I received evidence from
the plaintiff, her husband, her general practitioner, Dr Judith Risely, her treating
psychologist, Ms Diane Perrett-Abrahams, and two forensic psychiatrists, Dr Michael
Epstein and Dr Paul Kornan. I accept the evidence of each of these witnesses. The
defendant called evidence from a further forensic psychiatrist, Dr Alan Jager. I will, in
due course, explain my reason for not accepting the evidence of Dr Jager. In addition,
the plaintiff tendered reports from Dr Jeremy Banky, a dermatologist, Dr Peter Hayes,
a dentist, Dr Paul Hermann, an osteopath, Dr Michael Jelinek, a cardiologist, Professor
Paul Nestel, a physician, Dr Peter Selvaratnam, a specialist musculoskeletal
physiotherapist, Mr Michael Silverstein, an ear, nose and throat specialist, Dr Michael
Stubbs, a dental specialist, Dr Helen Sutcliffe, an occupational physician, Diana
Svendsen, a physiotherapist, and Myriam Westcott, an audiologist. Medical reports
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were obtained on behalf of the defendant from Dr Timothy Entwistle, a psychiatrist,
Professor Ivor Jones, a psychiatrist, Dr David Weissman, a psychiatrist, Dr Rod
Farnbach, a psychiatrist, Associate Professor Jack Gerschman, an oral medicine
specialist, Mr Robert Wilks, a clinical psychologist, Mr Garry Sherman, an ear, nose
and throat specialist, and Dr Angas Hamer, a cardiologist. All of these reports have
been considered.
192
The plaintiff, who was born in 1954, has been married for 37 years. She has two
children and one grandchild. On leaving school she trained as a dental nurse. After
her second child was born she worked for more than 20 years with her husband
operating four businesses in horticulture. Her husband had been in the police force.
After educating their children, the plaintiff and her husband tired of the unrelenting
pressure of self-employment and wound down their businesses. The plaintiff was
working as a receptionist in aged care when she applied for the job at Legibook.
193
Prior to July 2007, she had never been treated for any psychiatric injury or
psychological condition, blood pressure, eczema, neck or jaw pain, tooth grinding or
tinnitus and had not suffered any symptoms of such conditions. She was active,
interested in physical fitness, a keen gardener, and an enthusiastic supporter of the
Essendon Football Club. Her husband described her as having been bubbly, loving,
caring, and comfortable in the company of friends, family and acquaintances prior to
July 2007. She carried most of the duties of homemaker and parent during the years of
self-employment.
194
Dr Judith Risely had been the plaintiff’s general practitioner for many years. On 6
August 2007, she consulted Dr Risely following her breakdown, complaining of
stomach pain, butterflies and palpations. Dr Risely had last seen the plaintiff on 21
June 2007 when she came in for a check-up. Then, her blood pressure was at the upper
end of a normal range and her cholesterol was slightly raised. Otherwise, she was in
good health. On 6 August 2007, she displayed anxiety symptoms and complained that
she had been under a significant amount of stress at her workplace, having been
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bullied by a manager over a period of time. On that occasion, the plaintiff did not
want to take time off work or make a Workcover claim.
195
Dr Risely advised her to see a counsellor, it being her opinion that the stress was
making her unwell. She also advised that a Workcover claim was appropriate. The
plaintiff told Dr Risely on 5 September 2007 that a mediation process at work had
failed. Dr Risely certified her as unfit for work and has certified her as unfit for work
since that time. Dr Risely referred the plaintiff, still feeling very anxious and reporting
flashbacks, to Ms Perrett-Abrahams for psychological counselling. In September 2007,
the plaintiff was seen by Dr Entwistle on behalf of Workcover in the context of a
possible return to work. Dr Entwistle noted that the plaintiff’s emotional state
deteriorated and she became increasingly distressed and anxious as the interview
progressed. She described symptoms of anxiety, emotional lability and sleep
disturbance. Her memory and concentration were affected. Dr Entwistle diagnosed an
adjustment disorder with anxiety, commenting that there was no suggestion that she
suffers from any non-work related stressors and had no past or family psychiatric
history. Her current emotional state and a perception that the defendant was not fully
supportive of her were barriers to an immediate return to work.
196
By November 2007, the plaintiff reported to Dr Risely that she was feeling okay and a
return to work was arranged. The defendant retained Keith Farfor & Associates
whose employee, Ms Laurel Sengstok, developed a return to work plan.
197
However, I am satisfied that the defendant significantly mismanaged the plaintiff’s
return to work. Although the plaintiff believed that Mr Cowell had been dismissed,
she discovered that he retained authority to sign cheques. This discovery infected her
beliefs with an uncertainty about whether Mr Cowell might return. She had not been
informed about the new manager. The new manager had no idea as to how the
bookshop should operate and expected the plaintiff’s guidance. The bookroom was in
disarray; the banking had not been done since Mr Cowell had left, stock had been
bought and sold without reference to invoices or use of the computer system, access to
the computer was blocked by changed password, folders of reference material which
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the plaintiff described as her tools of work were absent. Ms Sengstok had arranged to
meet the plaintiff for five minutes. She arrived late and their meeting became a
confrontation over two issues. Ms Sengstok accused the plaintiff’s psychologist,
Ms Perrett-Abrahams, of illegal practices. She also demanded that the plaintiff read
and sign an acknowledgment of an eight page workplace behaviour policy. After
Ms Sengstok left, the new manager broke down in tears over problems in his personal
life before excusing himself and leaving the workplace. Having been confronted with
these conditions, the plaintiff found she was unable to continue with her return to
work plan. The consequence was that the plaintiff departed the bookroom stressed,
anxious, and upset. That day was her last day of work for Legibook and she has not
worked since.
198
In January 2008, Dr Entwistle recorded the history of the plaintiff’s unfortunate return
to work on 22 November 2007. On his examination at that time he concluded that
from a psychiatric perspective she had a current work capacity. This finding supports
the views of the plaintiff’s treating practitioners. It underscores the effect of the
mismanagement of the opportunity for the plaintiff to return to work.
199
In March 2008, Ms Perrett-Abrahams reported to the Accident Compensation
Conciliation Service that the plaintiff suffers from chronic adjustment disorder
including associated depression and anxiety, arising from a maladaptive response to
the ongoing stress of her workplace. No pre-existing pathology was indicated and the
patient’s condition was consistent with the stated cause. Ms Perrett-Abrahams
considered that her condition had been exacerbated by the unsuccessful return to
work and that the plaintiff had no current work capacity, although her future
prognosis was positive if an appropriate return to work plan could be developed.
200
Also in March 2008, Dr Risely reported to the Accident Compensation Conciliation
Service that the plaintiff was suffering from an anxiety disorder with symptoms
including tearfulness, nightmares, flashbacks, palpations, nausea, and diarrhoea,
preoccupation with her workplace, intrusive thoughts, and sleep disturbance.
Although her condition improved with counselling, her symptoms had intensified
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when her return to work in November 2007 was not successful. Dr Risely believed
that the plaintiff could return to her pre-injury duties if provided with a supportive
workplace.
201
In August 2008, Ms Perrett-Abrahams reported that although the plaintiff had been
assessed as fit to return to work, the replacement workplace consultant had not been
able to develop a suitable return to work plan with the defendant during that time
and the plaintiff had lost faith in her employer, believing that it did not want her to
return to Legibook. In addition, Workcover declined to authorise retraining.
Ms Perrett-Abrahams considered that the plaintiff’s continuing stress and her
condition was being exacerbated by these factors. That same month, Dr Risely
recorded that the plaintiff has physical symptoms such as nausea, abdominal pains
and palpations. The plaintiff was preoccupied with the issues arising from her work,
had decreased concentration, bouts of tearfulness and insomnia.
202
In October 2008, the plaintiff lodged claim forms for impairment benefits and, on 30
October 2008, received a letter from Legibook that confirmed her suspicion. She was
informed that on 14 April 2008, the board had determined that the permanent role of
assistant was redundant, although temporary staff would be hired from time to time
to assist the manager as needed. In that context, Legibook asserted that an
opportunity for a return to work was allowed, but these limitations explain why a
successful return to work could not be achieved. The plaintiff’s employment was
terminated on the basis that her position was redundant effective from 21 October
2008.
203
In November 2008, the plaintiff was examined by Professor Ivor Jones for the
defendant. Professor Jones observed that the plaintiff was inordinately preoccupied
with work related problems and showed pressure of talk with restlessness and
tearfulness. There was a prevailing depression of affect, accompanied by significant
emotional lability, which included strong feelings of resentment and anger about her
perceived treatment at her place of work. Her concentration was poor and he
diagnosed adjustment order with anxiety and depression. Noting the different views
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between Dr Entwistle and Ms Perrett-Abrahams about the plaintiff’s capacity to work,
Professor Jones commented that he agreed with her own doctor and her treating
psychologist. He recommended that she continue under the care of her psycho logist,
suggesting it was unlikely that she will be successfully rehabilitated at her former
place of work. Professor Jones opined that the contributing factor to the plaintiff’s
condition has been the chronic relationship problems with her co-worker at her place
of work. There was no evidence that the injury was an aggravation or occurrence of a
pre-existing injury. She did not have a current work capacity but with rehabilitative
training might be able to work elsewhere. He diagnosed an adjustment disorder with
depression and anxiety and found no reason for the emergence of her symptoms other
than from her experiences at her workplace as she saw them.
204
In December 2008, the defendant obtained another psychiatric opinion, this time fro m
Dr David Weissman. On examination of her mental state, Dr Weissman found the
quality of her affect was labile and emotional. Although initially relaxed and smiling ,
she became very tearful and distressed, flat, depressed, and anxious when discussing
her work related stress and the matters that had since transpired. The content of her
thinking revealed moderate, mixed depressive and anxiety themes, frustration and
grievances regarding her treatment in the workplace and subsequently by the insurer.
She reported problems with her concentration and her memory and demonstrated a
lowered self-esteem and confidence with negative depressive cognitions about herself.
Dr Weissman found no obvious pre-existing or unrelated psychiatric condition or
impairment. He concluded that the plaintiff was suffering from chronic adjustment
disorder with anxious and depressed mood, with features of traumatisation, of
moderate severity, directly due to the injury, a reference to the events of July 2007. He
agreed with other assessments that she did not have a present capacity for work but
he thought her psychiatric prognosis was fair. Although she had been very
traumatised and distressed by her experiences and remained prone to anxiety and
depression in the future, she had a number of ego strengths. She was described as
being determined, thorough and possessing a desperate desire to return to the work
force.
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205
In 2009, the plaintiff undertook a TAFE course in business and office administration
(medical). She also undertook a course to qualify as a medical receptionist but found
the work experience placement of four days at Epworth Hospital and two days at
Cabrini Hospital very difficult and challenging.
206
Approximately six months later, the defendant arranged for the plaintiff to be
examined by yet another psychiatrist, Dr Farnbach. Dr Farnbach noted that the
plaintiff had no previous psychiatric or psychological disorders or treatment, with the
exception of mild obsessive compulsive disorder, which is of no importance in her
life. Personality factors noted included that she has been confident in general and in
her work, quiet but sociable, with good friendships, good relationships with her
family, good energy and normal emotional resilience. She has been assertive.
Dr Farnbach diagnosed a major depressive disorder of moderate severity and with
anxiety. He considered the events at work to be a sufficient cause of her depression
and found no other cause operating in her life at the time that her illness began. The
plaintiff needed to continue with psychological treatment. Noting the plaintiff’s
difficulty with side effects from antidepressant medication, Dr Farnbach considered
that her condition had not been adequately treated, recommending she should
continue cognitive behaviour therapy in combination with appropriate medication.
He did not think it likely that she would be indefinitely disabled to the extent of
having no work capacity.
207
The plaintiff had developed other reactions to her condition. A report from the
plaintiff’s dentist, Dr Peter Hayes, noted that in July 2009 the plaintiff presented with
symptoms of temporomandibular joint pain and dysfunction syndrome, which had
not been reported in the previous 35 years of her attendance at the practice.
208
In October 2009, Associate Professor Gerschman reported to the defendant that as a
result of her stress and anxiety from workplace bullying, the plaintiff had developed
bruxism (teeth grinding), temporomandibular joint pain, pain behind the eyes,
bilateral headaches, squelching in the right ear and severe pain on chewing and
eating. Professor Gerschman concluded that the plaintiff’s pre-existing, albeit
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asymptomatic, nocturnal bruxism was aggravated or exacerbated by a combination of
mixed anxiety and depressive symptoms arising from her work related stress injury
and from the SSRI and related antidepressants that she was taking for this condition.
Her prognosis was poor, given that her conditions would continue while her
psychiatric conditions persisted and the use of those antidepressants continued.
209
In October 2009, Ms Perrett-Abrahams provided a further assessment of the plaintiff’s
psychological condition. At that time she was presenting with symptoms of chronic
anxiety and depression, reporting significant sleep dysfunction, constant fatigue,
persuasive feelings of grief and loss over the loss of her employment and was feeling
isolated and socially withdrawn. She reported an impoverished memory and poor
concentration. Ms Perrett-Abrahams affirmed her earlier diagnosis of chronic
adjustment disorder that included associated depression and anxiety. Psychological
testing supported her diagnosis. Ms Perrett-Abrahams reported that the plaintiff was
sensitive to pharmaceuticals and the use of Lexapro caused increased bruxism. Her
medication was changed to Effexor, which provided better mood elevation with a
reduction in jaw clamping and grinding. She was assessed as having no capacity to
return to her previous employment and that her capacity for any employment had
been compromised for the foreseeable future.
210
In December 2009, the defendant sought the opinion of a clinical psychologist,
Mr Robert Wilks. Mr Wilks, noting that the plaintiff described herself as always
having been ‘a perfectionist, methodical, who liked things to be done correctly’,
diagnosed her condition as adjustment disorder with mixed anxiety and depressed
mood. He stated that the underlying cause of that disorder is her personality, but the
direct cause has been, and remains, the events at her workplace and the subsequent
handling of her rehabilitation. Mr Wilks considered that the plaintiff was only
partially incapacitated for work and could be fit for part time receptionist or
administrative work in a supportive environment. Further, he suggested that, with
appropriate treatment and rehabilitation, the plaintiff would likely recover all of her
former work capacity.
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211
In 2009, the plaintiff was assessed with a psychiatric impairment of 20 p ercent by a
medical panel and was deemed to have a permanent injury that was unlikely to
improve in the foreseeable future.
212
The plaintiff had been referred to a specialist musculoskeletal physiotherapist,
Dr Peter Selvaratnam, for treatment of her bruxism and temporomandibular disorder
which was noted as including tinnitus. Dr Selvaratnam attributed these conditions to
the administration of Lexapro for her depression. He noted that she was experiencing
considerable difficulty with eating and a little difficulty with speaking, laughing, and
household activities.
213
In August 2010, Mr Michael Silverstein, an ear, nose and throat specialist, reported for
the plaintiff’s solicitors on the plaintiff’s tinnitus condition. He considered the nature
and the quality of the tinnitus that the plaintiff had sustained to be unusual and
possibly related to an anxiety state. The plaintiff’s long term prognosis was
unpredictable, because the combination of her psychological and physical condition
may cause the tinnitus to persist. There was also the possibility that if it got worse
there would be detrimental effects in terms of her social activities and perhaps her
enjoyment of life.
214
In August 2010, Dr Farnbach reassessed the plaintiff. He found the conditions leading
to his diagnosis of a major depressive disorder of moderate severity and anxiety to be
substantially the same and there were, in addition, physical problems associated with
her anxiety and the side effects of medication. He described these ill -effects as having
been quite severe, affecting her life. He observed symptoms that are typically found in
post-traumatic stress disorder sufficient to satisfy the diagnostic criteria for that
condition, except that the events which triggered her condition precluded that
diagnosis. In August 2010, Dr Farnbach’s diagnosis was major depressive disorder of
moderate severity, with post-traumatic features, and chronic anxiety. He noted that
this condition affects her general sense of wellbeing and her ability to enjoy her life,
and her daily living, recreational and social activities. Dr Farnbach considered that the
presence of the PTSD-type symptoms was sustaining her depression and making it
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treatment resistant and he made recommendations about appropriate psychological
treatment. He affirmed his view that her present psychiatric condition was entirely a
consequence of the situation and events that she experienced when working for the
defendant, with no other contributing causes. Dr Farnbach considered that the
plaintiff had some residual capacity to return to work on a part time basis in a low
stress situation.
215
In September 2010, an audiologist, Myriam Westcott, assessed the plaintiff’s bilateral
tinnitus to be the result of her bruxism and jaw clenching. She remarked that the
plaintiff had developed effective sound strategies to minimise her tinnitus awareness
in a quiet environment and depending on the effective management of her
psychological symptoms, might be able to achieve emotional acceptance of her
condition.
216
In November 2010, Dr Epstein re-examined the plaintiff concluding that the plaintiff
had developed a chronic adjustment disorder with anxious and depressed mood as a
consequence of work harassment. He noted that her capacity for coping appears to
have been significantly damaged. She also has had panic attacks and developed
temporomandibular joint dysfunction as frequently occurs in people who are highly
anxious. Her work capacity remains very limited as she could only work part time in
a very supportive working environment at her own pace. Dr Epstein commented that
the plaintiff’s quality of life had diminished, affecting her work capacity, her
relationships and her recreational enjoyment. Her prognosis for improvement was
limited as it was then more than three years since the events occurred and she
continued to be symptomatic. Dr Epstein reported again on 29 March 2011 in the same
terms.
217
In April 2011, Dr Michael Jelinek, a cardiologist, expressed the opinion that the
plaintiff’s blood pressure had gone up under the influence of major emotional stress
caused by workplace harassment, although her blood pressure was being effectively
treated. In his view, workplace stress had accelerated the development of high blood
pressure.
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218
In April 2011, Dr Helen Sutcliffe examined the plaintiff. An occupational physician,
Dr Sutcliffe concluded that the plaintiff has no current capacity for employment and
that it was unlikely that she will return to any employment, taking into consideration
the length and severity of her symptoms. Dr Sutcliffe suggested that the plaintiff
required assistance in the form of psychiatric treatment if she continued to suffer
symptoms of depression and anxiety.
219
In April 2011, Ms Perrett-Abrahams updated her psychological assessment. At this
time
Ms Perrett-Abrahams
commented
on
the
plaintiff’s
sensitivity
to
pharmaceuticals. Initially, the plaintiff was treated with Hypericum Forte but her
mood deteriorated in 2008, when Legibook made her redundant and non-prescriptive
medication was no longer effective. She was initially prescribed an antidepressant
medication, Lexapro, which proved inappropriate due to considerable side effects.
Her medication was changed to 150mg Effexor SR, an SSRI classification
antidepressant. Despite some initial side effects, this medication proved effective in
mood elevation but the plaintiff ultimately developed significant sensitivity to this
medication, developing substantial bruxism which causes headaches, tinnitus, ear
pain, eye pain, eating difficulties, numbness and tingling and itching to her fingers.
The plaintiff was then prescribed an array of medications to deal with these other
issues and it became necessary to withdraw and replace her antidepressant
medication. She also continued to suffer weight increase.
220
The plaintiff was then receiving fortnightly psychological treatment in the form of
cognitive behaviour therapy to address chronic insomnia, pain management, anxiety
and capacity to perform particular behaviours and positively influence the course of
events in life.
221
Ms Perrett-Abrahams’ diagnosis remained that the plaintiff suffers from an
exacerbation of chronic adjustment disorder with depression and anxiety and her
prognosis was for partial restoration only. Ms Perrett-Abrahams concluded that the
plaintiff’s condition had been exacerbated by the circumstances of the failed return to
work program and the refusal of Legibook to develop further return to work plans
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ending with the plaintiff’s position being made redundant. In her opinion, the
plaintiff was unable to work, with no capacity for work either then or into the
foreseeable future.
222
In May 2011, the plaintiff was seen by yet another forensic psychiatrist on behalf of
the defendant. Dr Jager diagnosed a chronic major depressive disorder in the plaintiff.
Dr Jager interviewed the plaintiff for approximately 30 minutes. He had been
provided with an affidavit by the plaintiff, an affidavit by Mr Somers, unidentified
psychologists’ reports and reports from Dr Epstein and Dr Farnbach, although he
made no reference to the reports of the other psychiatrists. He expressed the opinion
that constitutional factors are ‘highly likely to be perpetuating the claimant’s illness
and causing her current presentation and that they have superseded employment as
the primary cause of her depressive condition’. The author’s path of reasoning to this
conclusion is not evident from his report and appears to be based upon information
gleaned from the affidavits provided to him. Whatever the true basis for his opinion,
his report fails to disclose a transparent path of reasoning that states how ‘facts’ and
‘assumptions’ about the plaintiff relate to his opinion that constitutional factors in the
plaintiff had superseded employment as the primary cause of her depressive
condition.28 Having found a psychiatrist expressing an opinion that was less
favourable to the plaintiff, Dr Jager was the psychiatrist called to give oral evidence
for the defendant to which I will return.
223
On 17 May 2012, Dr Paul Kornan, a psychiatrist, examined the plaintiff at the request
of her solicitors. He observed anxiety and a depressive voice tone, and memory and
concentration problems. There was significant subjective distress, with marked
somatic problems, raised anxiety levels and depression. There was anhedonia. Her
behaviour showed a woman having difficulties coping. Dr Kornan diagnosed a
generalised anxiety disorder and a major depressive disorder. Her anxiety takes the
pathway of somatic type contributions to bruxism, tinnitus, blood pressure issues,
28
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 [129], see also Davie v Lord Provost, Magistrates and
Councillors of the City of Edinburgh 1953 SC 34 at 39–40, cited with approval by Heydon JA in Dasreef, at
[93].
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panic features, and skin rashes and itchiness. Dr Kornan noted the diagnoses of
others, of Adjustment Disorder, but was of the view that her symptoms clearly
indicate the more significant disorders. The consequence for the plaintiff was a major
loss of enjoyment of lifestyle and she was, in essence, an invalid in her own home. His
prognosis was not favourable as the plaintiff has developed chronic psychiatric illhealth, in which symptoms fuel further anxiety and depression. The plaintiff will
remain in chronic psychiatric ill-health in the long term and is unlikely to show
sustained improvement or recovery from her medication and treatments.
224
Dr Epstein also re-examined the plaintiff and reported again in May 2012. His
observations and opinion were largely unchanged. Although her panic attacks
appeared to have improved, they are still present as a feature of her Adjustment
Disorder with anxious and depressed mood. Essentially, the plaintiff suffered a
breakdown in her capacity for coping arising from the workplace harassment.
Dr Epstein commented that her temporomandibular joint dysfunction was a frequent
concomitant of anxiety. Her quality of life was very limited and her prognosis was
poor.
225
On 4 June 2012, Professor Paul Nestel, a consultant cardiac physician, reported that,
although it was unusual, it was highly likely that the plaintiff’s hypertension was
initiated by her work related stress. Her hypertension was adequately treated, but
there would be consequences for her cardiovascular health should hypertension recur
or her depression deepen or become resistant to treatment.
226
On 24 July 2012, Dr Alan Segal, a dermatologist, opined that the plaintiff had
developed a psychogenic pruritis with subsequent eczematous eruption on her arms,
caused by stress associated with her workplace and her psychological condition.
227
On 11 October 2012, Dr Helen Sutcliffe reported that the plaintiff’s complete lack of
capacity for her pre-injury employment as a result of the Adjustment Disorder would
continue into the foreseeable future, she had no capacity for other employment and
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thus had no capacity for suitable duties. Her total incapacitation for employment
would continue into the foreseeable future.
228
Ms Perrett-Abrahams also reported again, in September 2012, setting out again much
of the plaintiff’s history since July 2007. Her diagnosis remained unchanged as did her
prognosis of only partial restoration. On the basis of her psychological tests, she
confirmed that the plaintiff sustained a severe depression and a moderate to high
anxiety. Ms Perrett-Abrahams was cross-examined at length about her testing of the
plaintiff and the relation between her conclusions and the self-assessment of severity
of symptoms by the patient that underlies such tests. However, I do not accept the
cross-examiner’s thesis that the severity of the plaintiff’s condition was overstated by
Ms Perrett-Abrahams. I am satisfied that the witness took proper account of test
results. In any event, there was no inconsistency between her opinions and those of
the psychiatrists, Dr Epstein and Dr Kornan, whose evidence I also accept. Broadly
speaking, the medico-legal reports obtained for the defendant were not inconsistent
with Ms Perrett-Abrahams’ opinions. The qualification is that Ms Perrett-Abrahams
expressed a particular view that the plaintiff’s condition was exacerbated by a relapse
when her return to work program exposed her to a workplace in disarray that was
unsafe for her where she was inappropriately treated by the rehabilitation provider.
Ms Perrett-Abrahams was the plaintiff’s treating psychologist at this time and I accept
her opinion in this respect.
229
Ms Perrett-Abrahams summarised the impact of the plaintiff’s illness on her life .
Firstly, she referred to the stress related physical conditions that she developed;
temporomandibular joint dysfunction with bruxism and tinnitus requiring an oral
nocturnal splint and specific and specialised physiotherapy, chronic insomnia, pain,
anxiety, a disabling sensitivity to antidepressants, high blood pressure, and
debilitating rashes and skin irritations. Many of these conditions exacerbated her
stress injury condition and undermined gains made through psychological treatment.
Secondly Ms Perrett-Abrahams said:
Mrs Swan is compromised in her daily activities and has decompensated to the
extent that she finds it difficult to reconcile the woman she is today from the
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competent woman she used to be who was capable of managing and running a
business, and managing her home simultaneously. Today she finds herself
incapable of organising her home and finds days go by without her [being]
able to achieve goals or perform household tasks. She reported that without the
assistance of her husband and family, many tasks go undone. She reports
spending her days applying psychological techniques to distract from her skin
irritation, resting due to headaches derived from her bruxism and tinnitus. All
of her symptomology’s impact on her significant fatigue, which she struggles
with daily. She attends the gym several times a week which assists her with
socialisation and helps to address her social isolation and withdrawal.
230
On 31 January 2013, Dr Kornan reported again to the plaintiff’s solicitors about the
plaintiff. He confirmed his previous observations, diagnosis and prognosis, describing
her present condition as of a chronic nature, and of chronic, moderate intensity to, at
times, being moderately severe. The plaintiff was unable to have a meaningful pattern
to her life as she continued to be anxious and depressed, with her energy and
organisational abilities lost to her. Her condition remained unchanged from his prior
assessment and her prognosis was poor.
231
On 11 February 2013, Dr Farnbach reported again to the defendant’s solicitors.
Dr Farnbach recalled that he had changed his diagnosis from major depressive
disorder with anxiety, of moderate severity to major depressive disorder with anxiety
and with PTSD features of moderate severity. Explaining that his diagnosis was still
major depressive disorder with anxiety and with PTSD features of moderate severity,
Dr Farnbach commented:
Mrs Swan’s psychiatric condition has scarcely changed since I saw her one year
and three years ago. The difference is that she is now apathetic, which may be a
response to the antidepressant Pristiq. Her mood is always low, which she
described as ‘I know I feel sad’ and ‘I can’t be bothered’. She feels sad and she
wants to cry but ‘I can’t’. Her mood lifted briefly when her new grandchild
was born. Her capacity for pleasure, including the birth of a grandchild is low.
She has depression of sleep, appetite, energy, concentration and self-esteem.
She is no longer irritable, because she is apathetic. She ruminates daily, which
depresses her. She is anxious, with a restless and worrying mind, and somatic
symptoms. She has PTSD symptoms, resulting from having been extremely
anxious, and feeling helpless and trapped in the job. She has intrusive
distressing recollections, in the daytime, but no nightmares. She avoids
reminders of her experiences, her interests have become attenuated, she feels
less connected to other people and is less empathetic, and she cannot imagine
her future, although she expects to have normal longevity. She has heightened
arousal symptoms.
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Dr Farnbach concluded that the plaintiff would continue to be chronically depressed
and to suffer and to be incapable of working unless more intensive management by a
psychiatrist with specialist expertise in treating the PTSD component of her illness
was able to achieve some improvement.
232
In a further report dated 25 February 2013, Dr Epstein confirmed the content of his
earlier reports. He noted Dr Kornan’s opinion and commented ‘While I understand
his reasons for making those diagnoses, nevertheless I did not consider that her
symptoms met that level of seniority but was certainly in the same ballpark’. He
accepted that the plaintiff’s symptoms persist in part because of her continued
involvement in the Workcover process but also because of the extent of the damage
that was done in the workplace as far as her mental state was concerned. He
concluded that on prior occasions he had been unduly optimistic and stated ‘I think
her current work capacity is nil and will not improve in the future. Her quality of life
continues to be very limited. Her prognosis for improvement is slight. Her condition
is stable’.
233
On 27 March 2013, Dr Selvaratnam reported on the issues associated with the
plaintiff’s stress related physical conditions. His testing measured that the plaintiff’s
medical condition had an impact on a range of functional activities such as speaking,
taking a large bite, chewing hard food, chewing soft food, household activities,
drinking, laughing, chewing resistant food, yawning, kissing, eating a hard cookie,
eating meat, eating a raw carrot, eating French bread, eating nuts and eating an apple.
He considers that the plaintiff was unable to work and should never be in a stressful
work situation. He commented, however, that the plaintiff was a highly motivated
person who attends the gym and performs the exercises prescribed. However, he
anticipated that the plaintiff would experience ongoing symptoms over at least a
period of 10 years.
234
An updated report from Dr Risely on 22 March 2013 noted that the plaintiff’s therapy
at that time was Pristiq (an antidepressant) and supportive psychotherapy provided
by a psychologist. The plaintiff exercised daily and had been referred to a psychiatrist
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for opinion on further management. She wore an occlusive splint in her mouth and
had physiotherapy for her bruxism. She was undertaking bio feedback and taking
Atacand for her hypertension. She was using moisturisers and cortisone creams for
her eczema. Dr Risely opined that the injury and its consequent losses had had a
major impact on the plaintiff’s life. She had become socially isolated and lacked
confidence. She was very dependent on her family. She had gained weight. Dr Risely
considered the plaintiff to be totally unfit for work and unlikely to ever work again.
235
Ms Perrett-Abrahams, in an updated report dated 23 March 2013, noted that the
plaintiff had made gains in treatment which had been eroded by her burgeoning
physical injuries arising from her antidepressant medication. Her adjustment disorder
was described as chronic and severe and her injury had been onerous and deleterious
in the extreme. If recovery is achieved at all, it would take a substantial time. The
plaintiff remained compromised in most aspects of her life and is isolated, lonely and
disconnected. She had no current work capacity or any capacity for work in the
foreseeable future.
236
At trial, each of Drs Riseley, Perrett-Abrahams, Epstein, and Kornan were crossexamined on their reports by Legibook’s counsel. The mechanism for the plaintiff’s
injury was that her capacity for coping was damaged, and that damage could be
sustained either in a single traumatic incident or from long term exposure to patterns
of much less traumatic circumstances. Dr Epstein found the plaintiff to be a hard
working conscientious person who liked the job, who was pushing herself to keep
going and expected she would be able to manage, perhaps thinking she was ‘bulletproof’. In his opinion, the return to work was a disaster, not a case of a new injury, or
exacerbation, it was almost her worst fears, of going back into the same stressful work
place, one which had reminders of the experiences she had been having before she
went on leave. Dr Epstein was describing features of traumatisation.
237
There was, despite appropriate medication and treatment, no real change in the
plaintiff’s condition over the four years that Dr Epstein has seen her, which prompted
him to state that he had been unduly optimistic in his 2102 report, particularly about
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the plaintiff’s prospects of working again. Dr Epstein accepted that there was a
possibility of improvement in the plaintiff’s mental state after verdict, as a significant
stressor would be relieved, but the plaintiff would continue to struggle with day to
day matters. Dr Epstein rejected Dr Jager’s opinion about the role of obsessional
personality characteristics in the diagnosis. Dr Epstein saw no features of obsessive
ritualistic behaviour in the plaintiff or any relevance of such matters in a diagnosis.
238
Dr Jager was the only medical witness called to give oral evidence for the defendant.
Dr Jager identified from an affidavit in his briefing materials that the plaintiff ‘is
compulsive and trying to be perfect,’ as the basis for the constitutional factors that he
was considering when expressing his opinion. From the witness box, Dr Jager stated
that constitutional factors were ‘perpetuating the claimant’s illness and causing her
current presentation.’ Dr Jager was referring to his interest in why the plaintiff had
failed to recover her mental health. I did not take him to be continuing to suggest that
obsessional constitutional factors predisposed the plaintiff to developing a depressive
illness and were the primary cause of her illness. Dr Jager’s diagnosis of a causal link
between the workplace exposure and her condition causing her to cease work was
consistent with the opinions of other medical assessors. His evidence clarified that he
was unaware of these constitutional factors when examining the plaintiff, because his
practice is not to read briefing reports until after his examination, but Dr Jager did not
explain, as I followed him, why I should accept his opinion about the significance of
constitutional factors as more than speculation, or an ipse dixit. I prefer the majority
expert opinion that did not identify any relevant predisposing constitutional factors,
or any relevant role for such factors in the cause, or persistence, of her illness, and I
reject Dr Jager’s opinions where they are in conflict with the opinions of other
psychiatrists.
The plaintiff’s evidence
239
Before her illness, the plaintiff was an outgoing, physically and socially active person
with a good, close relationship with her husband and children. She had been a happy
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and confident person. She thought she was ‘sporty’. One of the defendant’s witnesses,
Mr Esnault, described the plaintiff as ‘very pleasant and quite confident’.
240
The plaintiff liked working with people and had always loved books. With multitudes
of students from different backgrounds frequenting Legibook, she particularly
enjoyed working there.
241
The plaintiff had been a very confident and efficient person capable of juggling a
number of issues at once without problem. This skill was evident not only in her
employment at Legibook but in her prior life, particularly in contributing to the family
business while raising her own family. Her evidence was that her enjoyment of life
had significantly diminished since her illness in the following ways:
(a)
She does not have any libido and personal relations with her husband were
quite strained. She does not enjoy being touched. She finds herself increasingly
isolated, preferring her own company. She does not enjoy the company of her
own children when they visit and she has more limited contact with her
friends, tending to give excuses to avoid social contact. Before her illness she
moved regularly in a number of different circles of friends.
(b)
Unable to concentrate, she no longer reads character fiction and cannot find the
time or the will to read magazines that previously engaged her, such as Better
Homes and Gardens. Gardening, previously a passion, no longer interested
her.
(c)
The plaintiff’s husband had taken over domestic activities, including cooking.
(d)
The plaintiff now struggles with sport and physical activity, struggling to get to
the gym, go for a walk or a swim, although she does so as part of her treatment
program. She has put on weight. Although she continues to go to football
matches, as she has done for many years, she has lost her passion for the game
and her regular attendance to support the Essendon Football Club is usually an
outing organised by her daughter to get her out of the house. Once an
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enthusiastic fan of musicals, she has not gone to the theatre for a couple of
years.
(e)
The plaintiff often loses concentration, gets disoriented and feels very lethargic
or tired all of the time. Because she has always been employed she experiences
difficulty getting up every day for want of a feeling of purpose. She
experiences disturbed sleep with anxious dreams. She also experiences
physical pain with muscle tightness in addition to the pain and headaches
associated with her bruxism and temporomandibular condition.
(f)
The plaintiff’s weight has increased and she feels frumpy and unfit. She
experiences various side effects because of her medications including
diarrhorrea, vomiting and headaches. She experienced ‘washouts’ when
transitioning from one antidepressant to another and has struggled
significantly since 2007 with the side effects of her medications. Her tinnitus is
with her all the time and can get quite severe.
(g)
The plaintiff gets stressed and anxious, especially when under any pressure.
She gets teary and goes to pieces whenever there is anything loud or abusive
around her. She gets headaches, she grinds and clenches her teeth and suffers
consequent muscular tension and headaches.
(h)
The plaintiff has limited activity outside of her home. Shopping trips leave her
exhausted and have reduced over time. When her son was married in Jakarta
she was able to attend the wedding and followed on with a short holiday in
Vietnam. Her husband described her capacity to join in the activities on that
trip as curtailed by her avoidance of loud noisy places and her lethargy. Her
activities were quite limited.
Quantum findings
242
I find that the plaintiff did not suffer from any pre-existing or unrelated psychiatric
condition or impairment. There were no non-work related stressors affecting the
plaintiff prior to July 2007 when the plaintiff sustained a psychiatric injury.
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243
There was little, if any, disagreement about the plaintiff’s psychiatric injury, or its
cause, across the range of medical opinion from treating practitioners to the forensic
professionals. She is suffering from a major depressive disorder and a generalised
anxiety disorder, with features of traumatisation. Her present condition is of a chronic
nature, and of chronic moderate intensity to moderate severity. The description of her
illness by the professionals varies a little, but these variations are not significant.
244
I accept the addition by a number of the medical witnesses of features of post
traumatic stress. Dr Riseley reported such symptoms, but Dr Farnbach in particular,
concluded that while the plaintiff did not fulfil the diagnostic conditions for post
traumatic stress disorder, her illness had such features and those symptoms were both
sustaining her depression and relevant to her treatment. The plaintiff’s PTSD features
are of moderate severity.
245
Her condition initially improved with counselling, but her symptoms intensified
when her return to work in November 2007 was not successful. Her reaction to
various antidepressants also appears to have contributed to her present condition. The
plaintiff has been certified by Dr Riseley as unfit for work continuously since 2007 and
remains under the care of her psychologist Dr Perrett-Abrahams. I am satisfied that
the plaintiff’s prognosis is poor, if recovery is achieved at all, it will take a substantial
time.
Consequences of the injury
246
The plaintiff’s injury has been extremely onerous and deleterious. In addition to the
primary symptoms of her Adjustment Disorder/Depressive condition, continuing
anxiety and depression, that have been described by the medical witnesses, the
plaintiff has somatic symptoms including temporomandibular joint dysfunction with
bruxism and tinnitus, chronic insomnia, pain, including migraine and headache,
anxiety, a disabling sensitivity to antidepressants, high blood pressure, and
debilitating rashes and skin irritations that have all required separate diagnosis, and
continue to require separate ongoing management and treatment. I have already
described the consequences for the plaintiff as reported by medical experts.
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247
From the plaintiff’s own perspective, I accept her evidence of the consequences for her
life of her illness. It was supported by both her husband’s evidence and the medical
evidence. Legibook contended that I should be reluctant to accept this evidence for
want of support from other witnesses, such as other members of the plaintiff’s family,
who were not called. I reject this contention.
248
I am satisfied that the plaintiff remains substantially compromised in most aspects of
her life, which has been reduced to one of isolation and disconnection from her family
and friends and from the world around her. The plaintiff has surrendered her
personal independence, lost her confidence, and lost her capacity to take interest in
and derive pleasure from the stimulus in life. This has been a substantial loss of
enjoyment of life, with much pain and suffering, both mental and physical.
Pre-existing susceptibility
249
Although it appeared during the trial that there was an issue whether the pl aintiff
suffered pre-existing psychological problems that were a cause of her injury, the
defendant did not ultimately press a submission to this effect. However, I will make
the following observations. The plaintiff always bears the legal onus of establis hing on
the balance of probabilities that the defendant’s negligence materially contributed to
her illness. As I have stated above, I am satisfied that this onus has been discharged.
For the defendant to successfully contend that the plaintiff’s illness and her current
presentation was primarily caused by ‘constitutional factors’, it must first discharge
an evidentiary onus of proving such constitutional factors existed and would have
produced similar symptoms. This submission fails at this first hurdle. In view of the
findings I have already made concerning pre-existing constitutional factors, I do not
consider it necessary in the circumstances to make any allowance by way of a general
contingency for such constitutional factors either as the primary cause of her
depressive condition or as being likely to be perpetuating her illness. I am satisfied
that the plaintiff’s natural character and personality made no contribution to her
illness and is not a factor that warrants any reduction in the damages that are required
to compensate her.
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Capacity to work
250
The plaintiff’s evidence, which I accept, was that she has no capacity for work because
she ‘got stressed and anxious under pressure’. She could not tolerate any loud noise
or abusive language and readily went to pieces or became teary. She also felt
incapacitated by her bruxism, with consequent severe headaches and tinnitus, and by
her eczema.
251
I am satisfied that the plaintiff’s feelings that she has no work capacity are borne out
by the expert assessments. The issue was complicated by the circumstances of the
plaintiff’s return to work program. In the early stages both the plaintiff’s treating
practitioners and the defendant’s medical assessors considered that the plaintiff could
successfully return to work. As I have found, the plaintiff’s return to work was poorly
organised and exacerbated her condition. There was no separate, or new, injury
arising from those circumstances. So much is clear from the medical evidence.
252
Although the failure of the return to work program did not immediately dissuade
medical practitioners from the view that the plaintiff might return to work in the
future, those medical practitioners have now been persuaded by the unrelenting
progression of her symptoms, particularly through her poor reactions to medication
and the somatic depression and anxiety symptoms that she has developed. Over time,
a number of medical specialists have revised their optimistic assessments that the
plaintiff might return to work.
253
I accept the opinion of Dr Sutcliffe that the plaintiff no longer has a capacity to
perform her former, or any other, employment and is likely to suffer a want of
capacity to work into the foreseeable future. Ultimately, each of Dr Epstein,
Dr Kornan,
Ms Perrett-Abrahams,
Dr Selvaratnam,
Dr Risely,
Dr Jager
and
Dr Farnbach came to share the view of Dr Sutcliffe that the plaintiff has no realistic
capacity for work in the future.
Vicissitudes
254
The defendant submitted that I should not adopt anything less than 15% discount for
vicissitudes, submitting that the proper allowance lay in the range up to 20%. The
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plaintiff suggested that such a discount was not warranted on the evidence. In Club
Italia (Geelong) Inc v Ritchie29 the Court of Appeal accepted that, in Victoria, as a rule of
thumb, the discount for vicissitudes of life in personal injury cases is usually of the
order of 15% while emphasising that each case depended on its own facts.
255
In assessing the extent to which gross economic loss is to be discounted, the court is
required to take into account a range of possible future occurrences both adverse and
favourable to the plaintiff, having regard to the evidence. The contingencies that are
usually considered include sickness and accident, loss of, or improvement in
employment prospects, or the chance of some other misfortune (or fortune) that may
appear in the circumstances. Further, a long prospective period for an assessment, or
where the plaintiff’s future prospects are not illuminated by evidence of opportunities
past and present, may warrant a larger contingency.
256
The plaintiff expressed a clear view. She did not ‘believe in retirement. I think you die
if you retire. That’s my opinion. I think you should always work as long as you
possibly can and that’s one of the things that’s been so upsetting to me is now that I
don’t have the capacity to work’. The plaintiff had worked all of her adult life
including on a part time basis when bringing up her family while her husband
continued to work. Although her preference has been for part time work since she and
her husband disposed of their businesses, her pecuniary loss claim is asses sed on this
basis, assuming employment until retirement at 65. I see no reason not to accept this
expectation. The plaintiff was able to find part time employment at a later stage in life
and has demonstrated a capacity to undertake further study or workpl ace training
when needed.
257
Prior to her illness, the plaintiff was generally fit and active, enjoying good health.
There was no evidence of underlying medical conditions that might adversely affect
her capacity to work during the next decade. The defendant submitted that the
plaintiff and her husband had already made significant adjustments to their lifestyle,
29
(2001) 3 VR 447, 464 [57].
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scaling back from operating small businesses and in a comfortable financial position
the plaintiff may not have chosen to continue in employment.
258
Other than its status as the standard discount, I see no basis in this case to apply a
discount rate of 15% and I see no reason to apply a greater discount. However, I am
satisfied that some discount for vicissitudes should be made and I will apply a
discount factor of 10%.
Assessment
Pecuniary loss
259
The parties agreed that subject to my findings concerning capacity to work and the
appropriate discount for vicissitudes, the plaintiff’s past loss of earnings totals
$156,570.38. The plaintiff’s future loss of earning capacity to age 65 is $151,093.34
which I discount for vicissitudes to $135,984.
260
I assess the plaintiff’s pecuniary loss in the sum of $292,554.38.
Pain and suffering
261
In Willett v Victoria,30 the Court of Appeal overturned a jury assessment of damages in
a claim by the plaintiff/appellant for damages for psychiatric injury caused by
workplace bullying. The court, by majority, considered the jury’s award to be
manifestly inadequate. The court determined that once liability has been determined,
the starting point for the assessment of damages for pain and suffering and loss of
enjoyment of life must be that it was common ground that the plaintiff had suffered a
serious mental disturbance of which the respondent’s conduct was a cause. The
question to then be determined was the proper compensation for the pain and
suffering and loss of enjoyment of life caused by the defendant’s negligence.
262
The majority agreed with recent observations of a differently constituted Court of
Appeal in Amaca Pty Ltd v King,31 that over the course of time society has come to
30
31
[2013] VSCA 76 (12 April 2013).
[2011] VSCA 447 (22 December 2011).
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place greater value on the loss of enjoyment of life and the experience of pain and
suffering than it did before. Salaries too have greatly increased. The court said:
Of course, an award of damages for loss of enjoyment of life and pain and
suffering is not to compensate for loss of earnings or earning capacity. We do
not suggest there is any necessary relationship between earnings and the
measure of compensation appropriate for pain and suffering. But in as much as
contemporary society pays and receives vastly greater amounts of
remuneration than that of a generation ago (even allowing for inflation) and, at
the same time as it seems to us, writes and speaks of the importance of the
quality of life to an extent not before contemplated, who doubts that modern
society may place a higher value on the loss of enjoyment of life and the
compensation of pain and suffering than was the case in the past? 32
The court noted that awards of damages have markedly increased: 33
[O]ver the last 10–20 years, awards of damages have increased significantly;
not just in personal injuries cases, but also in other areas of litigation. For
example, last year [2010] a jury in this state awarded a barrister more than
$600,000 in damages for defamation and that amount seems not have been
regarded as unreasonable…At all events, it appears that damages awarded by
juries in cases of defamation are capable of providing us with at least some
guidance as to the reasonableness of the amount awarded in this case for loss
of enjoyment of life and pain and suffering. And we bear in mind too that the
law today is not “more jealous of a man’s reputation than of his life and limb”.
263
I consider that the severity of the plaintiff’s illness as described in the medical
evidence that I have set out above was evident when she gave evidence. I am satisfied
that the impact of the plaintiff’s illness upon her since 2007 and into the foreseeable
future has been, and will continue to be, severe. The plaintiff’s own evidence of the
impact of her illness upon her is consistent with that assessment. Her medication and
somatic symptoms substantially aggravate her suffering. I bear in mind the general
considerations drawn from Willetts and Amaca.
264
I will award the plaintiff damages for pain and suffering and loss of enjo yment of life
in the sum of $300,000.
265
I will hear counsel as to the form of the judgment and on costs.
--
32
33
Ibid, [177] (footnotes omitted).
Ibid, [180], [182] (footnotes omitted).
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