Abdelkawy v ANL Container Line Pty Ltd - [2021] VSCA 342

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0020

AMRO ABDELKAWY	Applicant
v
ANL CONTAINER LINE PTY LTD	Respondent

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JUDGES:	BEACH and OSBORN JJA and FORBES AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2021
DATE OF JUDGMENT:	9 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 342
JUDGMENT APPEALED FROM:	[2020] VCC 2024 (Judge Lauritsen)

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NEGLIGENCE – Liability – Duty of care – Workplace injury – Psychiatric injury – Alleged workplace stress, constant harassment and victimisation – Whether open to trial judge to accept applicant’s evidence of the history of his employment as generally truthful and reliable and reject his claim – Whether trial judge’s conclusions as to the facts of victimisation and harassment and concerning the lack of apparent risk of psychiatric injury were against the evidence and the weight of the evidence – Plainly open to accept applicant’s account of the objective history and course of employment and to reject applicant’s subjective characterisation of that history as demonstrating a conspiracy against him or process of deliberate victimisation and harassment – Judge’s conclusions accord with the evidence and the weight of the evidence – No error demonstrated in conclusion that a reasonable employer in the position of the respondent would not have appreciated that the applicant was at risk of developing a recognised psychiatric illness – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Ibrahim	Wise Legal Solutions Pty Ltd
For the Respondent	Mr A D Clements QC with Mr G A Worth	Thomas Geer

BEACH JA
OSBORN JA
FORBES AJA:

Introduction

The applicant was employed by the respondent performing roles in the area of import customer service between July 2007 and August 2010.

During this period, and in particular in 2009 and 2010, the applicant alleges he suffered a psychiatric or psychological disorder.

The applicant ceased work on 16 August 2010.

As his solicitor put it on the appeal, in the years that followed the applicant sought to ‘rationalise’ what had occurred. In consequence he became convinced that he had been the victim of a deliberate conspiracy to harm his career.

In July 2017, the applicant issued proceedings alleging that his mental condition was the consequence of workplace stress and constant harassment and victimisation.

The applicant further alleged that the respondent knew or ought to have known that in the circumstances the behaviour complained of was likely to cause the applicant injury, and that the applicant was injured as a result of the respondent’s negligence.

By its defence, the respondent denied the allegation of constant harassment and victimisation, and further denied that it knew or ought to have known that the applicant’s work environment was likely to cause the applicant injury. It denied negligence and, in the alternative, alleged contributory negligence.

The matter came on for hearing before Judge Lauritsen in the County Court in June 2020. At trial, his Honour was confronted with a difficult task:

·the applicant was self-represented;
·the events at issue had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSCA 342
Decision Date: 9 December 2021

CaseChat Overview and Summary

In Abdelkawy v ANL Container Line Pty Ltd, the applicant sought to appeal against a decision that dismissed his claim for damages arising from alleged workplace stress, constant harassment, and victimisation. The Full Court of the Federal Court of Australia was tasked with determining whether the trial judge erred in assessing the reliability of the applicant's evidence and in concluding that the respondent was not liable for the applicant's psychiatric injury.

The legal issues before the court involved the credibility of the applicant's evidence regarding the history of his employment and whether the trial judge correctly evaluated the factual circumstances of the alleged harassment and victimisation. Specifically, the court had to consider whether it was open to the trial judge to accept the applicant's account of his employment history as generally truthful and reliable, and whether the trial judge's conclusions about the lack of risk of psychiatric injury were against the evidence and the weight of the evidence. The court also needed to determine if the trial judge erred in rejecting the applicant's subjective characterisation of his employment history as evidence of a conspiracy or deliberate victimisation.

The court found that it was open to the trial judge to accept the applicant's account of the objective history and course of employment while rejecting his subjective characterisation of it as demonstrating a conspiracy or deliberate victimisation. The court held that the trial judge's conclusions aligned with the evidence and the weight of the evidence. Furthermore, the court concluded that no error was demonstrated in the trial judge's finding that a reasonable employer in the respondent's position would not have appreciated that the applicant was at risk of developing a recognised psychiatric illness. Consequently, the application for leave to appeal was refused.

Orders