Aksentijevic v Victoria Racing Club Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURY LIST

No. SCI 2009 9783

BETWEEN

PETAR AKSENTIJEVIC	Plaintiff
V
VICTORIA RACING CLUB LIMITED	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 7, 10-14, 17-18 October 2011
DATE OF JUDGMENT:	27 October 2011
CASE MAY BE CITED AS:	Aksentijevic v Victoria Racing Club Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 538

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TORT – Employer and employee – Alleged acts of bullying by supervisor – Psychiatric injury – Whether acts of bullying established.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R McGarvie SC and Mr M Ruddle	Nowicki Carbone
For the Defendant	Mr P Scanlon QC and Ms M Britbart	Lander and Rogers

HIS HONOUR:

The plaintiff claims damages for psychiatric injury, which, he alleges, was incurred as a result of bullying conduct by his supervisor in the course of his employment with the defendant.

The plaintiff is 52 years of age. In 1991, he commenced employment with the defendant, the Victoria Racing Club, at the Flemington Racecourse as a trackman/labourer. In that capacity, the plaintiff, as part of a team of twenty or so employees, was responsible for the care and maintenance of the racetrack at the course.

In early November 2003, the plaintiff sustained an injury to his right shoulder while at work. As a result, he was off work, on WorkCover certificates, for a period of approximately ten days, returning to work on 17 November, with a certificate that he was fit for alternative duties. The plaintiff alleges that, after he returned to work, the track manager, Mr Michael Goodie, required him to undertake tasks, which he either had not done before, or which he had not been required to perform previously on his own and without the assistance of his fellow employees. The plaintiff complains that the tasks, which were so allocated to him, were demeaning and humiliating for him. As a consequence, he became stressed. Matters came to a head when, on 24 March 2004, his employer sent him home, because he was not wearing the prescribed shirt, which had been issued to him by the defendant as part of his uniform. The plaintiff considered that he was singled out by his employer on that day, as other employees, who were also not wearing the correct shirt, were not subjected to any action by the defendant. On the next day, the plaintiff attended for work, but went home early, because he was particularly stressed over the incident, which had occurred on the previous day.

The plaintiff claims that, as a result of the stresses to which he was subjected by Mr Goodie at his work, he sustained a serious psychiatric condition. He has received treatment for that condition by his general practitioners, and by psychiatrists, for the last seven and one half years. It is common ground that the plaintiff, during that period, has suffered from a serious psychiatric disorder. There is some difference of opinion between the various practitioners, who have either treated or examined the plaintiff, as to the precise nature of his condition. His current treating psychiatrist, Associate Professor Eng-Seong Tan, considers that the plaintiff is suffering from a severe form of a chronic adjustment disorder, involving acute anxiety episodes, and moderate to severe levels of depression. The plaintiff has not worked since 25 March 2004. It is common ground that he is, and has been, totally and permanently incapacitated from any further employment as a result of his psychiatric state.

The plaintiff’s statement of claim underwent a number of attempted amendments from the commencement of the trial before me. In its final form, the plaintiff relied on three causes of action. First, the plaintiff relies on a claim, based on Wilkinson v Downton[1], for injuries sustained as a result of misconduct by Mr Goodie, which was calculated to cause him physical or mental harm. The plaintiff claims that the defendant is vicariously liable for that conduct of Mr Goodie. The other two causes of action, relied on by the plaintiff, are for damages for breach of contract, and for negligence.
[1][1897] 2 QB 57.

The defendant denies the allegation by the plaintiff that he was bullied after his return to work in November 2003. In particular, it is denied that the plaintiff was allocated the tasks which he claimed he was required to perform during that time. In respect to the plaintiff’s claim in negligence, the defendant further contends that there was nothing about the plaintiff’s work, or his perceived demeanour at work, which should have alerted the defendant that there was a reasonably foreseeable risk of the plaintiff suffering psychiatric injury as a result of his conditions at work. The defendant also pleaded contributory negligence to that part of the plaintiff’s claim.

The proceeding

A number of witnesses were called to give evidence on each side relating to the basic allegations made by the plaintiff. As I have stated, there is no dispute between the parties that the plaintiff has, for the last seven and one half years, suffered from a serious psychiatric injury, which has prevented him from undertaking any further employment. As a result, the parties agreed that the reports of a number of medical practitioners, obtained by each side, be admitted into evidence, without requiring the practitioners to attend for cross-examination. The only two medical practitioners who gave evidence were Dr Andrianakis, the plaintiff’s current general practitioner, and Professor Tan, his treating psychiatrist. The evidence in chief of both of those two witnesses was adduced by the tender of medical reports prepared by them.

The procedure adopted by the parties contributed to a significant shortening of the trial, and enabled a proper focus to be maintained on the central issues in the case. Counsel are to be commended for the sensible and cooperative manner in which the trial of the proceeding was conducted.

Background

The Flemington Racecourse is a world renowned course situated in Epsom Road, Flemington. The course proper is an irregular oval shape, which lies, roughly, in an east-west direction. Within the course is a synthetic track, which, at the time of the events with which this case is concerned, was referred to as the “Visco” track. It was 2100 metres in circumference. Inside that track was a sand track, which was 1600 metres in circumference. Both of those two tracks were used for training purposes. The sand track was harrowed daily after it had been used for training of horses. As a result, mounds of sand built up under the rails, which separated the sand track from the bridle path, which was next to it. Those mounds of sand were known as the “batters”. One of the complaints of the plaintiff, to which I shall shortly refer, related to the manner in which he was required, in early 2004, to mow the grass which grew on the batters.

At the times which are relevant to these proceedings, Mr Terry Watson was the racecourse manager of Flemington Racecourse. Mr Michael Goodie was the track manager, and Mr Murray Nash was the assistant track manager. In turn, there were two foremen or leading hands, who were responsible for the track staff, namely, Mr Shane Evans and Mr Barry Dixon.

Originally, Mr Watson and Mr Goodie had both worked at Caulfield Racecourse. Mr Watson commenced his duties at Flemington in 2001, and Mr Goodie took up his position there in August 2002. In addition, a couple of other track staff were recruited by the defendant to work at Flemington from Caulfield, including Mr John Easton, who gave evidence in the case.

There was some suggestion in the evidence that, after their arrival, the staff, who had come from Caulfield, were given favourable treatment by Mr Watson and Mr Goodie. That proposition was denied by Mr Goodie and Mr Easton. In turn, there was some suggestion in the evidence, particularly by Mr Easton, that the existing staff at Flemington were not particularly welcoming to him, and his colleagues from Caulfield, when they commenced their duties at Flemington. It is not necessary for me to resolve those issues in the case. In particular, in his evidence, the plaintiff stated that the arrival of the new employees from Caulfield did not cause him any particular problems.

Before turning to the evidence on the issue of liability, I can dispose of one issue, which emerged during the evidence. In the course of cross-examination, it was put to the plaintiff that he himself had acted as a bully towards other, more vulnerable, employees, during his employment with the defendant. In particular, it was put to the plaintiff that he had made a disgusting remark to one employee about his wife, and that he had made a particularly crude suggestion to another fellow employee. In addition, it was put to him that he had ridiculed a third employee, who, it would appear, was suffering from the preliminary stages of dementia. The plaintiff denied each of those allegations. He also called, in support of his case, Mr Peter Meyers, who worked as a gardener’s labourer between 1989 and 2001. Mr Meyers stated that the plaintiff at all times acted appropriately towards his fellow employees. On the other hand, the last witness called on behalf of the defendant was a Mr Simon Ogden, who is currently employed as the site manager of the defendant. For a short time, between July 1998 and September 1999, Mr Ogden worked as a casual labourer in the same team as the plaintiff. He gave evidence, which was not objected to, describing the plaintiff as a bully, and recounting two of the incidents which were put to the plaintiff in cross-examination.

In relation to that evidence, I make the following three observations. First, I am not satisfied, on the evidence of Mr Ogden, on the balance of probabilities, that any of those incidents occurred, or that the plaintiff was a bully. I do not regard Mr Ogden as being a particularly impressive witness. Further, I note that no evidence was adduced from Mr Goodie, Mr Nash or Mr Easton, each of whom were called to give evidence on behalf of the defendant, describing the plaintiff as a bully. The fact that such evidence was not sought to be led from those three witnesses indicates that each of them would not have assisted that aspect of the defendant’s case.[2] Further, the employee, to whom the plaintiff was alleged to have made a disgusting remark about his wife, is still employed by the defendant, but he was not called to give evidence. I infer that he would not have assisted the defendant’s case if he had been called.
[2]Jones v Dunkel (1959) 101 CLR 298, 308, 312, 320-321; R v GEC (2002) 3 VR 334, 344-5 [41] (Vincent JA).

Secondly, in any event, I do not regard the evidence as being relevant to the issues in the case. The conduct, alleged by Mr Ogden, occurred about five years before the events with which this case is concerned. Apart from potentially being relevant to the plaintiff’s credibility, it is not evident to me how the evidence could otherwise have any logical bearing on the issues which I must determine. Thirdly, although objection was not taken to the evidence, I do not regard it as admissible evidence. Nevertheless, and in any event, I do not accept it.

I should add, for completeness, that Mr Easton gave evidence (which was not objected to) which I do accept, that the plaintiff made a crude suggestion to another employee on the bus on one occasion. That one instance of such conduct, in such a work environment, would fall well short of proving that the plaintiff was a bully in the workplace.

Evidence as to liability

Apart from the plaintiff himself, two other witnesses were called to give evidence on behalf of the plaintiff on the issue of liability, namely, Mr Bill Hilakari and Mr Peter Smoljko.

The plaintiff was born in Belgrade in January 1959. Having completed his education, he underwent a course as a fitter and turner. He served in the military for fifteen months, and then worked as a fitter and turner for eleven years. The plaintiff migrated to Australia at the age of 30. He worked, first, as a labourer for ten months with Don Smallgoods, and, subsequently, as a kitchen hand at the Windsor Hotel. In 1991, he married his first wife. There was a son by that marriage, who is now aged 20 years. The plaintiff and his wife separated in 1994.

As I have already stated, the plaintiff commenced employment with the defendant in March 1991. He was assigned to track maintenance team, driving tractors, mowing lawns and filling in the holes which had been made by the horses on the track. The plaintiff stated that he enjoyed his work.

The plaintiff stated that he did not have a particular job relating to collecting stones from the sand track. The employees were not permitted to enter the track, until the jockeys and horses had left it. However, while they were waiting to commence work on the track, they would pick up some rocks on the side of it. That task would only last for about ten minutes, and it was undertaken to fill in time. In cross-examination, his evidence as to that aspect of the case became somewhat confused. At one point, he appeared to maintain that, before November 2003, he and the team, in which he was working, used to collect stones from the sand track itself. However, he appeared to clarify that evidence by stating that, before November 2003, his fellow workers and he only collected stones from the scarified dirt track, and not from the sand track.

The plaintiff also stated that, before November 2003, he was not required to pick up manure. There was a particular employee, Mr Steve Winks, who had the task of collecting the horse manure, by picking it up in a shovel and placing it into a wheelbarrow. However, in cross-examination he accepted that his fellow workers and he would go around the Visco track with a rake, and flick the manure to one side. He also suggested, at that point, that all the workers would also sometimes walk around the sand track collecting horse manure.

The plaintiff said that the task of cutting the grass, on and beside the batters, was ordinarily undertaken by four people. One person would use a large heavy mower, which was self-propelled, and which was described as the “walk behind mower”. That machine was used to mow all the way around the track. However, it was not possible to use it under the rails or near the posts, because the wheels of the machine would sink into the soft sand which formed the batters, and into which the posts of the running rail were affixed. Accordingly, two other employees would use small garden mowers to mow under the running rails. A fourth employee would use a whipper snipper to cut around the posts, to which the rails were affixed.

In early November 2003, the plaintiff suffered a right shoulder injury, while hooking a trailer onto the back of the tractor. His general practitioner certified him off work until 16 November. On 17 November, he was certified fit for alternative duties. On his first day back at work, he worked with the other employees filling in the track. However, on the next day, when he arrived on the bus, Mr Goodie was waiting for him with a small bucket, which was about 30 centimetres high. He instructed the plaintiff that he had to pick up little stones from the sand track. The plaintiff stated that he undertook that task for the whole of the first day, pausing only for a ten minute “smoko” break in the morning, and a 40 minute lunch break. On the next three days, he was required to undertake the same task. He said that in the course of those four days, he only collected the equivalent of about one bucketful of stones. He felt that he was allocated that task, because the management was not happy with him for having taken sick leave.

On the following Monday, the plaintiff said that he had a “little bit of discussion” with Mr Goodie, presumably about the task which he had been allocated in the previous week. In response, Mr Goodie gave the plaintiff some gloves and a bucket, and instructed him to collect horse manure from the sand track. The plaintiff stated that that method was not an efficient manner of disposing of the horse manure on the track. As a result, he was jeered by his fellow employees. He began to feel extremely angry and distressed. He continued with the task, because he felt he did not have any choice but to do so. After a few days, the plaintiff asked Mr Goodie why he was requiring him to undertake those tasks. The plaintiff told Mr Goodie that he felt stressed, and that he could not eat or sleep. Mr Goodie laughed at the plaintiff in response. He stood with his arms crossed and his legs splayed, and said, “That’s how we used to do it at Caulfield”. The plaintiff said that he was then in tears, and he said to Mr Goodie “Please leave me alone”.

After a few days, the plaintiff was then allocated a third task, which was to use the walk behind mower to cut the grass on the batters. He was required to undertake that task without any assistance from any fellow employees, and without the use of the garden mowers for cutting under the rails, or any whipper snippers to cut near the posts. As a result, the task was particularly onerous and distressing. He said that, while he was carrying out that work, Mr Goodie would come and watch him, standing behind him with his arms crossed and legs apart. The plaintiff would say to him “Why me?”, and Mr Goodie would not respond, but would just walk away.

The plaintiff stated that, as a result of his treatment at work, he felt very low, humiliated and stressed. He began smashing the walls at home and becoming very cross. At one point, shortly before he ceased work with the defendant, he spoke to Mr Watson. He asked Mr Watson, “Why do you treat me like that?”, to which Mr Watson replied, “When you’re working with a group of people, you slow them down, and you don’t want to do anything. When you work like this, you work like a maniac”.

After that conversation, the plaintiff spoke to Mr Kel Saunders, his shop steward. Mr Saunders then contacted a union organiser, Mr Peter Smoljko, from the Australian Workers Union. Mr Smoljko had a meeting with Mr Watson in the absence of the plaintiff. After that meeting, Mr Smoljko stated to the plaintiff, “You are being discriminated against, we have to do something about it”.

Notwithstanding Mr Smoljko’s intervention, the plaintiff was still required to cut the batters, using only the walk behind mower, and without any mechanical or manual assistance.

The plaintiff then gave evidence about a dispute which arose concerning the fact that he was not wearing the correct uniform on 24 March 2004. He said that the workers always wore a uniform at work, consisting of overalls, boots and a jacket. A short time before he ceased work, the uniform had changed. The polo shirt was uncomfortable to wear, because it was synthetic. On 24 March, the weather was cold. He wore his uniform trousers and boots, but he wore his own personal tee shirt, and not the prescribed uniform shirt. However, he wore a jacket over the top of the tee shirt, which was zipped up. He said that the employees were permitted to wear their own jackets at work in colder weather. He was not wearing any of his uniform shirts, because they were dirty.

On 24 March, the plaintiff was given a job to drive the tractor. Mr Goodie came to assist him. As the plaintiff bent down to hook up the trailer, his shirt became untucked. When Mr Goodie saw that he was not wearing the prescribed shirt, he asked him why he was not wearing it. The plaintiff responded that his shirt was dirty. Mr Goodie insisted that the plaintiff go with him to see Mr Watson. The plaintiff refused. Mr Goodie departed, but returned with Mr Saunders. The plaintiff then accompanied Mr Goodie and Mr Saunders to Watson’s office.

Mr Watson asked the plaintiff where his uniform was, and the plaintiff replied that his tee shirt was dirty. Mr Watson said that if he was not wearing the proper tee shirt, he must go home. The plaintiff stated, “If I go home another four guys have to go home”. Mr Saunders tried to resolve the problem by suggesting that the plaintiff be supplied with a spare tee shirt at work. Mr Watson asked him who the other four workers were, and Mr Goodie responded, “Don’t worry about it, he’s got to go home”. The plaintiff was driven by Mr Goodie to the clock area, where he clocked off and went home. When he arrived home, he was extremely upset. He telephoned his wife, and she tried to calm him down. During the night he continued to feel very distressed and could not sleep. Although his wife advised him to stay home on the next day, he insisted on attending at his work. When he arrived he saw Mr Goodie, which infuriated him. The plaintiff spoke to another superior, Mr Steve Torney, who told him to go home. The plaintiff clocked off and went into the locker room, where he smashed a locker with his fist. Mr Goodie came in. The plaintiff was then on his knees begging. Mr Hilakari bandaged his hand.

When the plaintiff arrived home, he telephoned his wife. She took him to the local clinic. Dr Fung, who was then on duty, certified him off work for two days. On 29 March, the plaintiff saw Dr Wilde, his usual practitioner, and she referred him to a psychologist, Mr Sergio Giurena. In April 2004, the plaintiff consulted another general practitioner Dr Andrianakis, who referred him to Dr Polonowita, a psychiatrist. The plaintiff was treated by Dr Polonowita from April 2004 until the doctor retired in 2008. Since then, the plaintiff has been under the care of Professor Tan.

The plaintiff was cross-examined on a number of issues. In particular, he denied that he had indulged in the acts of bullying, to which I have earlier referred. He also denied that, in 2001, he had failed to remove a last hurdle at the 300 metre mark during the course of a hurdle race, and he denied that he received a final warning signed by the then racecourse manager, Mr Bradfield. He also denied that, when Mr Watson commenced duties at Flemington, Mr Watson spoke to him about his attitude to his work.

The plaintiff denied that, from time to time, he requested to work on his own, and he also denied that, when he was working on his own, he asked to work in a group. He said that he performed the duties, which were allocated to him. He said that, although Mr Murray Nash was his supervisor for a long time, nevertheless it was Mr Goodie, and not Mr Nash, who allocated his jobs to him. He said that he very rarely saw Mr Nash.

The plaintiff agreed that the surface of the sand track consists of sand compacted onto a base. He denied that it was nonsense that he was sent, by Mr Goodie, to pick up stones from the sand track. He said that, before November 2003, the employees had been required to pick up stones from the sand track, as a group. However, before November 2003, no-one had ever picked up stones off the track on their own. The plaintiff agreed that, in his evidence in chief, he stated that he was required by Mr Goodie to pick up horse manure from the track with a bucket and gloves. He agreed that, in his answers to interrogatories, he said that he used a shovel, bucket and gloves. He said that both answers were correct, that sometimes he was given a shovel, and sometimes not. He maintained that he was required by Mr Goodie to pick up manure from the sand track between November 2003 to March 2004, although that task was pointless, because the manure was distributed amongst the sand by the harrows. Later in his cross-examination, he said that he was given a shovel to assist him with that task on the second day, on which he was required to perform it. He also stated that all the workers, including himself, used to clear manure to the side of the Visco track using a bamboo rake, and also by hand.

In cross-examination, the plaintiff also maintained that he did cry openly in front of Mr Goodie on a number of occasions between November 2003 and March 2004. He stated that he did tell the doctors, who he saw, that he had broken down and cried in front of Mr Goodie. When it was put to him, by Mr Scanlon QC, that none of the doctors had recorded that fact in their reports, the plaintiff responded that the doctors had asked him questions, and he just answered the questions. He said that he did not tell the doctors that he had been crying, because they did not ask him about that matter. He also agreed that he did not refer to the fact that he was crying in his answers to interrogatories, or in the two affidavits which he swore in support of his application for leave to bring the present proceedings pursuant to s 134AB of the Accident Compensation Act 1985.

In cross-examination, the plaintiff stated that, on 24 March 2004, his tee shirt was dirty. He agreed that it was fair that Mr Goodie and Mr Watson required him to wear the uniform, which had been issued to him, but he stated that all of the six tee shirts had been dirty. He agreed that he could have washed the tee shirts, to make sure that he was wearing the correct uniform. He said that, on 25 March, he did attend work in his proper uniform. When Mr Watson spoke to him on 24 March, Mr Watson was not angry with him or yelling at him. The plaintiff denied that he said to Mr Watson, “You might be the boss in here, but I’m the boss outside”. He also denied that, on the next day, in the locker room, he said to Mr Goodie, “Get out of my fucking face”.

The plaintiff was also cross-examined about the issue of uniforms by the defendant to its employees. He stated that, before Mr Watson commenced work at Flemington, people used to wear their own clothing, including shorts. He agreed that he attended union meetings, at which he was informed that the defendant wanted the staff to look good in uniforms. Over a period of time, the employees were provided with different sets of clothing to wear as trial uniforms. The plaintiff stated that, in the end, he did not think that an agreement was reached with the union on this issue. The employees were issued with six shirts, work trousers and boots, which were the same for each employee. The defendant’s staff were each required to wear the same uniform. The plaintiff agreed that management had stated that, if an employee attended work in inappropriate clothing, the employee would be stood down, without pay, until the employee presented himself in the appropriate work attire.

Mr Bill Hilakari gave evidence on behalf of the plaintiff. Mr Hilakari commenced employment with the defendant in October 1993 at Flemington Racecourse as a maintenance painter. Between about 1995 and 2005, he was the shop steward for the Australian Workers Union. He stated that the defendant had a system for collecting stones from the sand track, and also from the dirt track, by which a group of workers walked along the track side by side in order to pick up each stone on it. He said that Mr Steve Winks had the job of collecting manure, which he did by the use of a wheelbarrow and a shovel.

Mr Hilakari stated that, in late 2003 to early 2004, the defendant supplied a uniform to the employees, but it had not been agreed to by any of the workers. It took some time for people to adjust to wearing the uniform.

Mr Hilakari was at work on 25 March 2004. After clocking on at 8.00 am, he went into the locker room. After he entered, the plaintiff came in. His hand was cut on the knuckles. Mr Hilakari did not observe the plaintiff hit the lockers with his hand. Mr Goodie came in after five or ten minutes. The plaintiff was then crouching and distressed, covering his face. Mr Hilakari could not recall whether or not the plaintiff was crying at that stage. Mr Hilakari attended to the plaintiff’s hand, and bandaged it.

In cross-examination, Mr Hilakari agreed that his duties with the defendant involved him working in the grandstands, and that he did not often work on the race track itself. He maintained that the defendant’s employees did walk in a line along the sand track to collect stones. He was unable to say whether they used a bucket to do so. However, he stated that he had observed the employees walking shoulder by shoulder carrying out that task.

Mr Hilakari agreed that there had been a lot of consultation between the union and management about the uniform, which was issued to the defendant’s employees. He was unable to say when the uniform was finally settled and issued. In particular, he was unable to say whether, in March 2004, the uniform policy was in place and implemented.

The other witness called by the plaintiff, on the issue of liability, was Mr Peter Smoljko. Mr Smoljko commenced work as an organiser for the Australian Workers Union in 1996, and he remained in that capacity for nine years. His role included working with the union members at Flemington Racecourse.

Mr Smoljko stated that, in about 1999, the defendant decided to introduce a race day uniform, in order to create a better appearance. The uniform which was issued to the employees was uncomfortable and impractical, and it remained an ongoing source of discussion between the union and the management over a number of years.

In early 2004, Mr Smoljko was called to the racecourse by Kel Saunders, the shop steward, to resolve an issue relating to the plaintiff. The plaintiff and Mr Saunders told Mr Smoljko that the plaintiff was working on the track crew, but he had been moved to another job, or an area away from the crew, and he felt that he had been singled out. Mr Smoljko was not able, in his evidence, to recollect the type of tasks, which the plaintiff had been required by the defendant to undertake. He said that the plaintiff was in a high state of anxiety, and he was quite upset and angry. He felt that Mr Goodie and Mr Watson had some type of vendetta against him.

Mr Smoljko stated that he attended a meeting concerning that matter with Mr Goodie. He was unable to recall if Mr Watson was also present. Mr Smoljko sought an explanation as to why the plaintiff had been removed from the track crew, and given alternative duties. Mr Goodie replied that the plaintiff had been moved in his employment because of his performance, and because the plaintiff was disruptive to the work group. He said that management felt that the plaintiff needed to be removed in order to increase the productivity of the group. Mr Smoljko responded that, if the performance of the group was being affected, management should have addressed the issue with the group as a whole, rather than singling out the plaintiff, and making him a scapegoat. He said that he wanted the plaintiff to return to the group. However, Mr Goodie disagreed, and said that he had the right to manage the business as he saw fit.

Following that meeting, Mr Smoljko spoke to the plaintiff, and told him to be patient and to follow instructions, and that the union would try to resolve the matter. However, shortly after that, the plaintiff ceased working with the defendant.

In cross-examination, Mr Smoljko stated that, before the introduction of the uniform policy, the workers would wear shorts, singlets and other clothing, which exposed them to a high risk of sunburn. He agreed that, over a long period of time, the defendant developed and distributed different types of clothing to its employees, until final agreement was reached as to the uniform, which was to be worn. He stated that, by late 2003 or early 2004, the work day uniform had not significantly changed. It had been trialled, and new shirts were allocated to the workers. However, the employees complained, because the shirts were synthetic and were not comfortable. Subsequently, they were replaced by cotton shirts. Mr Smoljko stated that the defendant was not consistent in implementing its policy. In particular, some employees were sent home for not wearing their uniform, but other employees were not sent home, notwithstanding they were not correctly dressed. Mr Smoljko also maintained that, while the union was negotiating the uniform with the defendant, it was not settled. He could not recall the exact date when the uniform was finalised.

Mr Smoljko stated that he attended Flemington once every four to six weeks. When he visited Flemington between November 2003 and March 2004, he did not observe the plaintiff being isolated or victimised. Mr Smoljko was unable to recollect the work, which the plaintiff stated he had been required to perform between January and March 2004. He recollected that the plaintiff had been moved off the track crew to do some work, which he found was demeaning for him at the time. Mr Smoljko also insisted that Mr Goodie was at the meeting, which he had with management concerning that issue.

In re-examination, Mr Smoljko stated that the final uniform, which was agreed, included a cotton shirt. He said that, if the shirts which were worn in March 2004 were polyester, that suggested that the uniform had not, at that stage, been finalised.

The defendant called four witnesses on the issue of liability, namely, Michael Goodie, John Easton, Murray Nash, and Terence Watson.

Mr Goodie commenced work at Caulfield Racetrack at the age of 14 and a half. At the age of 20, he was employed by the Victoria Amateur Turf Club at Caulfield as a groundsman. Subsequently, he was promoted to track foreman at Caulfield. He commenced employment as the assistant track manager at Flemington in April 2002, and, some time before November 2003, he was promoted to tracks operation manager. In 2008, he was appointed the racecourse manager of Flemington.

Mr Goodie stated that the horses usually train on the sand track between 3.45 am and 9.00 am. The track is then harrowed. In winter, it is watered and rolled during the day, but from September to April that task is done at night time, in order to minimise evaporation. He said that the surface of the sand track was as smooth as a billiard table after it is treated in that way. He said that the only way in which a stone could find its way onto the sand track is if it became detached from the tyre of the vehicle working on the track.

He said that he had never seen, or directed, any employee to pick up stones from the sand track using a bucket. In particular, he denied ever directing the plaintiff to pick up stones from the sand track using a bucket.

Mr Goodie stated that there would be no point for someone to walk around the sand track, picking up manure off it. When the track is harrowed, the manure disintegrates and mixes in with the sand, so that it cannot be seen. Mr Goodie stated that no employee has ever been given the task of picking up manure from the sand track. He stated that the manure is raked off the synthetic track, before it is power harrowed, in order to prevent it contaminating the synthetic material. Mr Goodie denied ever directing the plaintiff to use a bucket, gloves and shovel to pick up manure from the sand track or the synthetic track.

Mr Goodie further stated that, normally, the batter was cut by use of two walk behind mowers, one going in each direction, with a hand mower cutting the grass under the rails, and a whipper snipper also being used. He denied that he had ever directed the plaintiff to mow the whole of the batter using only the walk behind mower for a number of days on his own.

Mr Goodie stated that, on a normal day, the management staff would discuss the jobs, which were to be carried out on the next day. Mr Nash, the assistant track manager, would then allocate the jobs to the two foremen, Mr Shane Evans and Mr Barry Dixon. Mr Goodie denied that he ever distributed jobs to the plaintiff himself. He said that he did not have any perception, between November 2003 and March 2004, that there was something about the plaintiff’s work, which was causing him injury. He denied that he attended a meeting with Mr Smoljko at which issues relating to the plaintiff were discussed.

Mr Goodie said that, on occasions, the plaintiff would say to him that he did not want to work with the group, and, subsequently, he would say that he wanted to work again with the group. Mr Goodie did his best to accommodate the plaintiff’s wishes in that regard. He stated that he did not believe that he ever isolated the plaintiff from working on his own. He denied that he ever stood behind the plaintiff while he was working, with his arms folded and legs astride. He said that the only issue about work, which the plaintiff raised with him, was that, on occasions, he did not wish to work with the group, or, having elected to work on his own, he wished to rejoin the group. Mr Goodie stated that such requests by the plaintiff had been made by him since Mr Goodie commenced work with the defendant in August 2002. Mr Goodie said that the plaintiff was disruptive when he worked in a group, that he wanted to be the clown and the “monkey”, and that he never worked cohesively with the group.

Mr Goodie described how the finalisation of the uniforms, to be worn by the defendant’s employees, was a long drawn out process. The shirts, which were initially distributed to the employees, were deemed to be unsuitable. Accordingly, other shirts were issued to the employees. He said that the uniform, which was finally chosen, came into operation in October 2003. It consisted of high visibility orange and blue tee shirts, trousers, and safety boots.

On 24 March, the plaintiff was allocated the task of driving the tractor to tow a trailer, containing filling soil, which was used to repair holes in the track. When he commenced to hitch the trailer to the tractor, Mr Goodie noted that the plaintiff was not wearing his correct work shirt. He asked the plaintiff where the shirt was, and the plaintiff responded that it was in his locker. Mr Goodie asked him why he was not wearing it, and the plaintiff replied that it was dirty. Mr Goodie asked him where his other shirts were, and the plaintiff said, “They’re at home”. Mr Goodie said, “Well you need to wear one”. The plaintiff however refused to wear his work shirt. Mr Goodie spoke to Mr Watson, who told Mr Goodie to bring the plaintiff to him. Initially, the plaintiff refused to attend, unless he had his union delegate with him. He asked to be accompanied by Bill Hilakari, but Kel Saunders, and not Bill Hilakari, was the union representative for the groundsmen. After Mr Goodie had fetched Mr Saunders, the plaintiff accompanied them to see Mr Watson.

Mr Watson asked the plaintiff where his shirt was, and why he was not wearing it. The plaintiff stated that his shirt was dirty, and he would not wear it. Mr Watson said, “If you are not going to wear it, you can go home”. The plaintiff responded, “You may be the f’ing boss in here, but I’m the f’ing boss outside”. As a result, Mr Goodie took the plaintiff to the mess, where he clocked off, and went home. Mr Goodie stated that, on 24 March, there may have been one or two other employees who were not in uniform, but they had only recently come to Flemington, and had not been issued with their new uniform.

On the next day, Mr Goodie went into the locker room, in order to give the plaintiff his pay slip. The plaintiff was not then in a prayer like position, crying. The plaintiff said to Goodie, “Get out of my f’ing face”, and Mr Goodie responded by turning around and walking out.

In cross-examination, Mr Goodie agreed that it would be a meaningless task to require an employee to pick up stones or manure from the sand track. He stated that no-one had ever picked up manure from the sand track. He said that the only area, in which stones were picked up by the groundsmen, would be the dirt track, or on the roads after they were graded. He disputed the evidence of Mr Hilakari that he had observed workers walking, shoulder by shoulder, on the sand track collecting stones.

In cross-examination, Mr Goodie agreed that the most efficient way of dealing with the manure on the sand track was to harrow it, or by dragging equipment consisting of a number of tyres over it, which distributed the manure on the track. He said that it would be a complete waste of time to require someone to pick up manure from the sand track. The manure on the Visco track was either picked up, or raked off, the track, before the track was power harrowed.

Mr Goodie further stated that the normal method of mowing the batters was to use the walk behind mower, with normal garden mowers, and whipper snippers being used under the rail. However, the use of whipper snippers ceased after Mr Goodie started, because he poisoned the grass under the rail to save work. Mr Goodie agreed that it would be most inefficient to require one employee to mow all the batters using only the walk behind mower. In particular, it would be almost impossible to use the walk behind mower under the rail.

Mr Goodie further stated, in cross-examination, that the plaintiff could be quite disruptive, and play the role of the joker, when he was in a group. Mr Goodie spoke to the plaintiff about his conduct on more than one occasion. The plaintiff agreed to improve his attitude, but he did not adhere to that promise. However, Mr Goodie denied that it was for that reason that he allocated to the plaintiff tasks working on his own. The plaintiff would ask to work on his own, and on other occasions he would ask to work with the group. Mr Goodie did his best to accommodate the plaintiff’s wishes.

Mr Goodie stated that the plaintiff never complained to him about picking up stones or manure, or about being required to mow the batters with only the walk behind mower. He said that Mr Saunders came to see him about the plaintiff on a number of occasions between 2002 and 2004. Generally, Mr Saunders would speak to Mr Goodie when the plaintiff was not happy about working with the group, and wanted to work alone, or if the plaintiff wanted to work with the group, when he was working on his own. Mr Goodie was able to recall one complaint brought to him by Mr Saunders, between November 2003 and March 2004, that the plaintiff did not want to work on his own, but wished to work in the group. Mr Goodie responded that he would look at the plaintiff’s position in a fair way. In re-examination, Mr Goodie said that he did not notice any sign of stress in the plaintiff between November 2003 and March 2004.

Mr McGarvie cross-examined Mr Goodie about the issue relating to the uniforms. He said that the primary purpose of the uniforms, on a non-race day, was to enhance the safety of the employees. In particular, it was important that the employees wore uniforms, which were highly visible. He agreed that the synthetic shirt was not agreed upon, because the workers did not find it to be comfortable, and therefore it was changed to a cotton shirt. He also agreed that, on 24 March, when the plaintiff was hitching the trailer to the tractor, the plaintiff was wearing a jacket. He stated that, at that time, workers were entitled to wear jackets over their shirts. Mr Goodie only became aware that the plaintiff was wearing the incorrect shirt, when the plaintiff bent over, and his shirt became untucked. Mr Goodie denied that he deliberately chose to make an issue out of the matter, in order to be confrontational. Rather, he said that the issue was important, because it was club policy that the employees wear the shirts which had been distributed to them. Mr Goodie particularly denied that he took advantage of the issue as an opportunity to make life miserable for the plaintiff.

Mr Goodie agreed that, in Mr Watson’s office, the plaintiff said that there were at least three or four other workers who were not wearing their shirts. Mr Goodie responded by saying, “It’s not three or four, and it’s in hand”. He said that the worker, who was out of uniform, had not been issued with his uniform at that stage. Mr Goodie also agreed that Mr Saunders suggested providing the plaintiff with a spare shirt. However, that solution was not feasible, because the defendant did not have any spare shirts at the time. He maintained that the plaintiff said to Mr Watson, “You may be the f’ing boss in here, but I’m the f’ing boss outside”. Notwithstanding that the plaintiff used obscene language to the racecourse manager, he was not given a written warning.

Mr Watson was the final witness who gave evidence for the plaintiff, but it is useful to summarise his evidence next. Mr Watson is currently a consultant to a number of race clubs. He said that, when he first commenced at Flemington, he spent a lot of the time on the track getting to know the workers. By late 2003, he was spending less time on the track. However, he would still be there for about 30 percent of his time. He said that he had a number of discussions with the plaintiff about what he would like to do. Sometimes, the plaintiff would want to work with the group, and, on other occasions, he chose to work away from the group. The defendant would accommodate those requests. It was not always possible to do so, but, generally, the defendant did its best to accede to the plaintiff’s requests. Mr Watson denied that the defendant was trying to isolate the plaintiff. Rather, he said that the management staff went out of their way to try to make him enjoy his work. He said that the plaintiff was the employee, who the management tried the most for. In fact, the management made an exception for the plaintiff, in allowing him the freedom to be able to pick his duties. In particular, Mr Watson stated that he did not recall a conversation between himself, Mr Saunders and the plaintiff, in which the plaintiff made a complaint about being isolated in his work.

Mr Watson agreed that it was not normal routine to collect manure from the sand track, because the harrows mixed the manure into the track. He also stated that the areas inside the track were mowed by normal hand mowers and whipper snippers. Mr Watson said that he did not ever see an employee working alone, for four months, mowing inside the track, or walking around the track picking up manure for two weeks, or walking around the sand track continuously for four days picking up stones.

Mr Watson stated that there were many discussions with the staff, the union and the defendant relating to uniforms. The defendant had decided to introduce a uniform to the staff. Management took a lot of time, before the final uniform was chosen. During the process, the staff were permitted to have a lot of input into what they would be wearing. The uniform was finally settled by agreement with the staff, the union and the VRC. All of the staff were presented with their new uniforms. It was agreed that all the staff would wear the uniform, and that if an employee failed to do so, the employee would be sent home.

Mr Watson recalled that, on one day, the plaintiff did not wear the correct uniform to work. Mr Goodie told him that the plaintiff had attended work out of uniform, and Mr Watson requested Mr Goodie to bring the plaintiff to his office. When the plaintiff entered his office, Mr Watson stated that there was an arrangement in place, to which the employees agreed, and that the plaintiff would need to go home to get his uniform. In response, the plaintiff left the course and went home, but he did not return.

In cross-examination, Mr Watson stated that stones were only rarely collected from the sand track. That would only occur if the Maribyrnong River flooded, leaving debris on the sand. Ordinarily, employees would not be manually picking up stones between November and March, because there would be no need to do it.

Mr Watson also agreed that there would be no need for an employee to be assigned to pick up manure from the sand track as a daily chore. The harrow reduced the manure to microscopic proportions. He said that the manure was flicked off the Visco track, although it may also be picked up from it. It was important to prevent the synthetic fibres of the track becoming contaminated.

Mr Watson also agreed that the appropriate method of mowing the batters was to use hand mowers under the rails, and a whipper snipper. He said that it would be very difficult to mow that area using the walk behind mower, and he did not believe that anyone was required to do it.

In answer to questions from myself, Mr Watson stated that he did not recall seeing the plaintiff, in November 2003, picking up stones from the sand track. He stated that that would not have occurred. Mr Watson made a point of going out around the track each day. He also stated that he did not see the plaintiff walking around the sand track, picking up manure, for two weeks in November and December 2003. He said that it would be hard to think anyone was doing that, because it was not a normal thing to do on the track. Mr Watson would have seen the plaintiff carrying out that task, if that was indeed the case. Mr Watson also stated that he did not believe anyone ever used the walk behind mowers to cut under the rail, and he did not see the plaintiff doing it. He said you would not miss someone using a mower like that cutting under the rail.

In cross-examination, Mr Watson stated that he could not recall the plaintiff asking him, during that period, why he was isolating the plaintiff. He could not recall saying to the plaintiff that he had been isolated, because he slowed down the group when he worked with it. The only conversations, which Mr Watson had with the plaintiff concerning that topic, concerned requests by the plaintiff that he be allowed to work on his own, or with the group, and the management did what it could to accommodate those requests.

Mr Watson did recall an occasion, when Mr Smoljko had a conversation with him concerning the plaintiff’s situation. Mr Watson could not recall what was discussed. He did not recollect Mr Smoljko saying to him that the plaintiff had been required to perform demeaning work. He did accept that it was possible that he said to Mr Smoljko that the plaintiff was isolated, not because of a request by the plaintiff, but because it would improve the productivity of the group, which he was disrupting.

Mr Watson agreed that the primary function of the uniforms, issued to the employees for non-race days, was to protect them from the sun, and for safety reasons. The employees were permitted to wear their own jackets, over the uniform shirts, before the defendant supplied its own jackets to the workers. Nevertheless, the workers were required to wear the uniform shirt. He said that he considered that issue was important, when the plaintiff came to him on 24 March. The defendant, the union and the employees had agreed that the uniform would be worn, commencing on a particular date, and, on that day, the plaintiff attended without his proper uniform on. Mr Watson agreed that the plaintiff had stated that there were another four employees, who also were not wearing the uniform. However, those employees had commenced recently, and had not yet been issued with their uniforms. Mr Watson also recollected that Mr Saunders suggested that the defendant supply the plaintiff with a tee shirt, but that was not a ready solution, because it was a matter of principle. Mr Watson did not consider that it was unfair to require the plaintiff to wear his correct shirt.

In re-examination, Mr Watson stated that, if the plaintiff had been walking around the sand track for four days picking up stones, and for two weeks picking up manure, there was no possibility that Mr Watson would have missed seeing him doing those tasks. He said that the plaintiff was never removed from the track crew at his direction.

Mr Murray Nash, who at the relevant times was the assistant track manager at Flemington, also gave evidence for the defendant. He is currently a trades and procurement manager employed by the defendant.

Mr Nash stated that, at the end of each day, the managers had a meeting, at which the next day’s work was scheduled. On the next morning, Mr Nash would allocate the jobs to the workers. He said that, during the period between 2000 and 2004, he was probably the person who would spend most of the time on the track as supervising the workers. He supervised them from the vehicle, and sometimes he walked around the track. During the day, Mr Nash would visit most of the groups of the employees on a number of occasions. That role took him close to the sand track. In cross-examination, he denied that he spent most of his time working on his own on the track. Rather, he said that he was mobile supervising the other workers.

Mr Nash said that after the sand track was used for training by the horses, it was then harrowed using the chain harrows, or it had the device, containing a number of tyres, dragged over it. That process removed the manure from the track by spreading it. After the harrows or the tyres had been around the track, the manure is not normally visible. Mr Nash said that he never saw the plaintiff walking around the sand track picking up manure. Mr Nash would have seen the plaintiff carrying out that task, if he had been doing it.

Mr Nash also stated that the sand track does not contain any stones. If someone was given the task of walking around the sand track picking up stones, Mr Nash would have seen him doing it. He said he never saw the plaintiff carrying out that task. If the plaintiff had been undertaking that task, Mr Nash would have seen him doing it. Nor did Mr Nash see the plaintiff working, for a couple of weeks or more, using only the walk behind mower in order to mow the batters. He said that the walk behind mower would not fit under the rail. Mr Nash would have seen the plaintiff undertaking that task, in that way, if he had been doing it. Normally, the task is performed using the ordinary garden mowers and the whipper snippers.

Mr Nash did not receive any complaints from the plaintiff about the type of work, which he was required to undertake. Mr Nash did understand that the plaintiff had asked, through Mr Goodie, to work on his own on occasions, and that that request was accommodated.

In cross-examination, Mr Nash said that the plaintiff tended to hold up the other members of the group, in which he was working. The plaintiff was not one of the “better” employees of the defendant. Mr Nash understood, from Mr Goodie, that the plaintiff was keen on working on his own on some occasions, and Mr Nash felt that that was a possible solution to the problem of the plaintiff disrupting the work group.

Mr Nash stated that he organised the mowing of the batters. He said that, normally, the grass under the rail is poisoned. He said that people, normally, use whipper snippers on the sand area of the batters, because you could not mow that part using the walk behind mower. He agreed that it was not necessary that all four workers, performing the mowing of the batters, work in close proximity to each other, and that they could be some distance apart. He agreed that, if he saw someone with a walk behind mower near the poles, he would not take particular note of it.

Mr Nash agreed that, if an employee was asked to pick up stones from the sand track, that would be a ludicrous waste of time. Mr Nash added that he had never seen that job carried out by any employee. He also said that if someone was asked to pick up manure from the sand track, that would be quite extraordinary. He said that, at that time, the manure was not cleaned off the Visco track, because, by then, the management was not concerned about that aspect of the maintenance of the track. Rather, the manure was picked up by the harrows, which drove around the Visco track. He agreed that it would be absurd to assign to an individual worker the task of picking up manure from the Visco track with a bucket and a pair of gloves. He did not believe that the plaintiff had been given such a task in late 2003 and 2004. Mr Nash did not have a recollection of seeing the plaintiff, between November 2003 and March 2004, undertaking any task, which he thought was unusual.

In re-examination, Mr Nash said that, if the plaintiff had been given the job of picking up stones around the sand track for one week, and then for two weeks picking up manure from the track, and then for four months mowing the batters only using the walk behind mower, Mr Nash would have noticed. He said that there was no chance that he would have missed seeing the plaintiff undertaking these tasks. He said that that did not happen.

The other witness, who gave evidence for the defendant on the issue of liability, was Mr John Easton. Mr Easton commenced work at Flemington, as a groundsman, in August 2003, and he is still employed there in that capacity. Previously, Mr Easton had worked at Caulfield Racecourse as a groundsman for three years. Mr Easton stated that, when he commenced work at Flemington, generally, Mr Nash allocated to him the duties which he was to undertake from day to day.

Mr Easton said that, between August 2003 and March 2004, he was never assigned the task of picking up stones from the sand track. There are no stones on the sand track, and he has never observed any other groundsman picking up stones from that track.

Mr Easton also stated that the only track, from which manure was removed, is the Visco track. The manure is flicked off that track, with a rake, onto the bridle path which is adjacent to it. Mr Easton has never been allocated the task of collecting manure from the sand track. He has never seen any other groundsman picking up manure from the sand track. When the sand track is harrowed, or when the tyre device is run over it, the manure is spread in such a way that it is not still identifiable on the surface of the sand.

When Mr Nash commenced work at Flemington, the batters were mowed using a walk behind mower as close as possible to the legs of the rails. Hand mowers were used under the rail, and whipper snippers were used to cut around the legs of the rail. Mr Nash has never seen the walk behind mower used to mow under the rails.

Mr Nash knew the plaintiff between August 2003 and March 2004. He regarded the plaintiff as being quite “cocky”. The plaintiff would complain that he was not happy with the job, which he was given. He regularly complained about that matter over a seven month period. Mr Easton understood the plaintiff to be referring to the filling job and the mowing job, when he complained. Mr Easton further stated that there was a culture at Flemington that everyone seemed to worry about what the other workers were doing, and what job they were not being given. The plaintiff tended to complain probably more than others. However, Mr Easton never saw him exhibit any signs of emotional upset or distress.

When Mr Easton commenced work at Flemington, the groundsmen did not wear any prescribed uniform. However, a new uniform was implemented in October 2003, and the workers were issued with the uniform at that time. They were expected to wear it, and Mr Easton understood that he would be sent home if he did not wear it. Mr Easton described Mr Goodie as a hard but fair boss, and he said that he had never seen Mr Goodie victimise or harass anyone.

In cross-examination, Mr Easton stated that the tasks were allocated to the employees by Mr Nash, Mr Dixon or Mr Evans. He said that the equipment, which was used to mow the batters, was the walk behind mower, a couple of hand mowers, and a whipper snipper. The walk behind mower was used to cut a line as close as possible to the rails, and the light hand mowers were used under the rail. It would be impossible to mow under the rails using the walk behind mower, because the tyres of that machine would sink into the sandy surface of the batter.

Mr Easton agreed that it would be most unusual for an employee to be required to collect manure from the Visco track using a shovel. He said that the manure was never picked up from the Visco track by someone walking around it with a bucket and gloves.

Mr Easton agreed that the area, in which the groundsmen worked, was quite large. The employees were allocated to undertake particular tasks in groups. Each group might be assigned different tasks in different areas of the racecourse. If the plaintiff was at the northern end of the course, and Mr Easton to the southern end of the course, he would not know what the plaintiff was doing.

Mr Easton agreed that there were very regular complaints by the plaintiff from late 2003 and 2004, and that they were getting louder and more strident as time went on. The plaintiff made it clear that he felt that he was being treated very badly, and he was complaining about the jobs, which he was doing.

In re-examination, Mr Easton stated that between, August 2003 and March 2004, he worked every day on the track on a full time basis. He never saw the plaintiff mowing the batters, using only the walk behind mower. If the plaintiff had been required to undertake that task in that manner, Mr Easton would have noticed it.

The issues

The foregoing review of the evidence demonstrates that there are a number of factual disputes between the parties. However, the central allegation, in the plaintiff’s claim, is that, after the plaintiff returned to work in November 2003, Mr Goodie bullied him, and, as a consequence, he suffered psychiatric injury. That bullying is alleged to have consisted, first, of Mr Goodie requiring the plaintiff to pick up stones, and subsequently manure, from the sand track, and then requiring the plaintiff to mow the batter around the sand track alone, and only with the use of a walk behind mower. (I shall collectively refer to those tasks as “the three tasks”). Secondly, it is alleged that the plaintiff was discriminated against and bullied by Mr Goodie, by being sent home from work, on 24 March 2004, because he was not wearing the prescribed uniform shirt on that day.

Each of the three causes of action, pleaded by the plaintiff, are based on the allegation of bullying, to which I have just referred. Mr Scanlon, on behalf of the defendant, accepted that, if I were satisfied that the plaintiff was treated by Mr Goodie in the manner which I have just described, the plaintiff would thereby establish, against Mr Goodie, all the elements of a claim for damages for the intentional infliction of psychiatric injury under the principles first stated by Wright J, of the Court of Queen’s Bench, in Wilkinson v Downton[3]. In my view, that concession by Mr Scanlon is correct.[4] Further, Mr Scanlon also accepted that the defendant, as the employer of Mr Goodie, would be vicariously liable for such conduct of Mr Goodie for the purposes of such a claim made by the plaintiff for damages. Again, in my view, that concession so made by Mr Scanlon is correct.[5]
[3][1897] 2 QB 57, 58 to 59 (Wright J).
[4]See, for example, Bunyan v Jordan (1936) 57 CLR 1, 10-11 (Latham CJ); Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, 485-8 [66]-[82] (Spigelman CJ); 529 [397] (Basten JA); McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289, [122]-[127] (Ashley J); Carter & Anor v Walker & Anor [2010] 340, [252 and following].
[5]Nationwide News v Naidu (above), 488-9 [87]-[89] (Spigelman CJ); 510 [259]-[261] (Beazley JA); 532 [409] (Basten JA); State of New South Wales v Lepore & Anor (2003) 212 CLR 511, 546 [74] (Gleeson CJ), 561 [131] (Gaudron J), 592 [232] (Gummow and Hayne JAJ), 617-8 [318], 620 [326] (Kirby J); Blake v J.R. Perry Nominees Pty Ltd [2010] VSC 272, [46]-[47], [69] (J Forrest J).

In light of those concessions, Mr McGarvie did not, in his final address, press for any further consideration by me of the claims made by the plaintiff based on negligence or on breach of contract.

Thus, the issues, which I must determine, are basically issues of fact. The critical issue is whether Mr Goodie required the plaintiff to perform the three tasks in the manner which he described, and whether Mr Goodie acted, in the manner alleged by the plaintiff, concerning the failure of the plaintiff to wear his correct uniform shirt to work on 24 March 2004.

In addressing those issues, it is clear that there has been no suggestion that there would have been any utility to the defendant for the plaintiff to perform the task of collecting stones from the sand track for a period of four days, or of collecting manure from the sand track and the Visco track using a bucket for a period of two weeks or more. The plaintiff maintains that those tasks were allocated to him solely for the purpose of bullying him. The defendant firmly denies that those tasks were given to the plaintiff. It did not contest – and indeed Mr Goodie and Mr Watson each conceded in cross-examination – that if, hypothetically, such tasks were allocated to an employee, the only motivation for doing so would be in order to bully the employee.

Similarly, it was not suggested in the evidence that it would be sensible, efficient or normal for an employee of the defendant to attempt to cut the lawn on the batters alone, and solely by using the walk behind mower. On all the evidence, it is clear that the performance of such a task in that manner would be highly inefficient and inappropriate. Further, and importantly, it would be most burdensome to require an employee to perform such a task in that manner. The defendant did not seek to argue to the contrary. Indeed, its witnesses accepted that if, hypothetically, an employee was required to perform that task in that manner, it would be most oppressive and difficult for him to do so. Again, the defendant, and in particular Mr Goodie, firmly denied that the plaintiff had been required to perform the task in that manner between November 2003 and March 2004, or at any other time.

The factual issues relating to the question of the uniform are less starkly defined. There were some differences between the plaintiff, on the one hand, and Mr Goodie and Mr Watson on the other hand, as to the conversation which transpired in Mr Watson’s office. However, those differences are mainly matters of degree. The plaintiff maintains that Mr Goodie acted in the manner described by him for the purposes of further demoralising and upsetting him. On the other hand, both Mr Goodie and Mr Watson maintained that they acted in that manner for the purpose of upholding company policy, which had been made clear to all of the employees of the defendant. Mr McGarvie, in his final address, accepted that, if I were not satisfied that Mr Goodie had allocated to the plaintiff the three tasks, the actions by the defendant, on 24 March, would not, alone, be sufficient to constitute the actions of bullying which would underpin the plaintiff’s claim for Wilkinson v Downton damages. However, he argued that the actions of Mr Goodie, on that day, constituted the culmination of a series of acts of bullying by Mr Goodie, and that they were, in a sense, the last straw which broke the plaintiff’s psyche. He also submitted that the attitude adopted by Mr Goodie to the plaintiff on 24 March relating to the shirt issue, is demonstrative of the malice which, he maintained, Mr Goodie had borne to the plaintiff in the preceding four months.

Analysis of evidence

I had the opportunity to observe the plaintiff at some length, both in evidence in chief, and in cross-examination. There were some limitations in assessing the credibility of his evidence from the manner in which he gave it. While the plaintiff has a reasonable understanding of English, it is not perfect. Further, he is somewhat restricted in expressing himself. In assessing the plaintiff’s credibility, I have taken those matters into account.

Nevertheless, I did not find the evidence of the plaintiff, and his account of it, particularly convincing. The description, which he gave of the work, which he was required to undertake between November 2003 and March 2004, sounded somewhat contrived, and it had about it an air of unreality. In forming that impression, I was, of course, conscious that the plaintiff’s case is that he was treated by the defendant, at that time, in a rather bizarre manner. Nevertheless, and bearing that in mind, I did not find his description of the work which he was required to undertake during that time to be particularly persuasive.

Overall, the plaintiff was not inconsistent in the evidence he gave. There was, however, one matter, in respect of which I have come to the conclusion that he was not truthful in his evidence.

In cross-examination, Mr Scanlon put to the plaintiff that, rather than being bullied, he himself was a bully at work. The plaintiff denied that allegation. In the course of cross-examination which followed, the plaintiff denied that his nickname at work was “Axe Handle”. The plaintiff agreed with Mr Scanlon that he knew what an “axe” was, but he did not know what an “axe handle” was. In a later passage in cross-examination, it was put to the plaintiff that a fellow employee, Mr Grant, described the plaintiff as “Axe Handles”. The plaintiff agreed with that proposition, stating that that nickname was derived from his surname. He then denied that, by admitting that his nickname was “Axe Handles”, he had thereby contradicted his earlier evidence. He sought to explain the inconsistency, by claiming that he had understood Mr Scanlon, in the first passage of the cross-examination, to be asking him if his nickname was “Hacks Handle”. I found that explanation to be contrived and untruthful. In the first passage of the cross-examination on that matter, Mr Scanlon had taken care to elicit from the plaintiff that he knew what an “axe” is.

In the context of the issues, which I must decide, the inconsistency in the plaintiff’s evidence, on that point, is not significant. However, the plaintiff’s case is that he was bullied at work. He well understood that he was being cross-examined on the basis that he was bully, rather than being the victim of bullying. It is in that context that the inconsistency, and the false explanation, occurred. At that stage, certainly from a subjective point of view, it could not be said that the cross-examination was then insignificant.

I consider that the plaintiff’s two supporting witnesses on the issue of liability, Mr Smoljko and Mr Hilakari, were honest witnesses. Mr Smoljko’s memory was somewhat limited, particularly in relation to the meeting which he said he had with Mr Goodie. I shall return to that topic later. However, both the plaintiff’s witnesses did seek to give a truthful account to the court of what they had recollected.

Mr Goodie was, of course, the principal witness called for the defence. I did not detect any conscious attempt by Mr Goodie to give untruthful evidence. He gave his evidence in a forthright and frank manner. From time to time, on minor issues, he did tend to endeavour to put the best gloss on some of the matters, about which he was giving evidence. However, and by the same token, he was also prepared to make appropriate concessions in cross-examination. For example, he readily accepted, in cross-examination, that the shop steward, Mr Saunders, did make at least one complaint to him, between November 2003 and March 2004, about the plaintiff not being happy about working on his own. That concession was significant, given that the plaintiff had not called Mr Saunders to give evidence.

Mr McGarvie submitted that I should not accept Mr Goodie as a truthful witness. In particular, he relied on three matters. First, he submitted that there was an inconsistency between a section of a statement made by Mr Goodie dated 17 September 2008, and the evidence given by Mr Goodie, relating to the type of duties which were the ordinary work of a groundsman. In the statement, Mr Goodie appears to state that the duties, complained of by the plaintiff in his affidavit, sworn in support of the serious injury application, were “normal every day duties”. It is clear that if, in that passage, Mr Goodie was saying that such tasks as picking up stones from the sand track, and collecting manure from the sand track and the Visco track, were ordinary every day duties, he was clearly wrong. He maintained (consistently with his evidence before me) that no-one had ever been asked to collect stones or manure from the sand track, or manure from the Visco track. In the next sentence in the statement, it is said “It is not true that labourers never had to collect horse manure from the sand track”. When cross-examined, Mr Goodie did not seem to understand the implications of the double negative contained in that sentence. He seemed to consider that the sentence was in fact asserting, consistently with his evidence, that no-one was ever required to collect horse manure from the sand track.

On their face, those matters are inconsistent with Mr Goodie’s evidence. Mr McGarvie sought to rely on those inconsistencies to indicate Mr Goodie is not a truthful witness. In my view, whatever the import of the passages in the statement, to which I have just referred, I do not consider that any inconsistency between those passages in Mr Goodie’s statement, and his evidence, reveal Mr Goodie to have been untruthful in his evidence before me. Mr McGarvie does not maintain that the passages in the statement, to which I have referred, are truthful. Rather, he seemed to argue that they were untruthful. However, there is no reason why Mr Goodie would have deliberately made a written statement in 2008 which was untruthful. The statement was never put forward as part of the defence in the case. There is no evidence that Mr Goodie intended or believed that it be used, in any manner, to resist the plaintiff’s claim. There is no logical purpose for Mr Goodie to have intentionally told such an untruth in the statement.

Furthermore, I note that the statement was prepared by an insurance investigator, who also appears to have prepared a similar statement for Mr Watson. That statement, of Mr Watson, contains clear errors. That factor casts doubt on the reliability of the statements as records of the recollections of both Mr Watson and Mr Goodie.

In support of his submission that Mr Goodie was not a truthful witness, Mr McGarvie also referred to the evidence of Mr Goodie that, in the meeting in Mr Watson’s office on 24 March 2004, the plaintiff said to Mr Watson “You might be the f’ing boss in here, but I’m the f’ing boss outside”. Mr McGarvie contended that that evidence, of Mr Goodie, is inconsistent with the evidence of Mr Watson, namely, that no employee swore at him in his own office. However, I note that it was not put to Mr Watson, in cross-examination, that the plaintiff did not swear at him, in the manner described by Mr Goodie, on 24 March 2004. It is clear that the plaintiff was particularly upset with his treatment on that day, and it is not improbable that he did speak to Mr Watson, in his office, in an emotional manner. In any event, a difference of that type, between the evidence of Mr Watson and Mr Goodie, if there be such a difference, would not be such as to reveal Mr Goodie as a deliberately untruthful witness.

The third matter, on which Mr McGarvie relied, in support of the proposition that Mr Goodie was an untruthful witness, concerned Mr Goodie’s evidence that, when he entered the locker room on 25 March, the plaintiff said to him, “Get out of my f’ing face”. Mr Hilakari’s evidence was that the plaintiff did not say anything at that point. The plaintiff, himself, could not remember what he said, because his mind, at that stage, was a blank. I am not prepared to find that Mr Goodie’s evidence, on that small point, should not be preferred to the evidence of Mr Hilakari. However, in any event, any such inconsistency would, again, not justify a conclusion that Mr Goodie was a deliberately untruthful witness to me on that matter. The conversation occurred some seven years ago. Different witnesses to a conversation can have different perceptions as to the language used. Memories as to the conversation can differ, sometimes markedly, without one, or other, of the witnesses to the conversation being deliberately dishonest as to their recollection.

The three witnesses, called in support of the defendant’s case, namely, Mr Watson, Mr Easton and Mr Nash, were each, in my view, clearly honest witnesses. Mr McGarvie did not contend to the contrary. I noted, as they each gave evidence, that they were each decent, patently truthful witnesses. Mr Watson’s memory, as to some events and conversations, was not always precise, although, as I shall later note, he did have a particularly good memory of the conversation, which took place in his office on 24 March. Mr Watson was prepared to make appropriate concessions, and each of the three witnesses were, in my view, conscientious in the way they gave their evidence.

In summary, then, as I stated, I did not find the manner in which the plaintiff gave his evidence, about the critical events in this case, to be particularly convincing. That observation is not an appropriate reason, of itself, to reject the plaintiff’s evidence. However, it is a relevant matter which I must take into account in determining whether the plaintiff has established, on the balance of probabilities, the particular acts of bullying, which he alleges were committed by Mr Goodie between November 2003 and March 2004.

On the other hand, I did not detect any conscious effort by Mr Goodie to be untruthful, or to deceive the court. That assessment of Mr Goodie’s demeanour does not, of itself, necessarily lead to the conclusion that he was being truthful. A witness’ demeanour is but one factor which is to be taken into account in determining the truthfulness and accuracy of the witness. In particular, I would not determine the matters, which are in issue before me, by reference only to my assessment and comparison of the manner in which each of the critical witnesses gave their evidence. As I have already noted, I regard Mr Nash, Mr Watson and Mr Easton each as truthful witnesses, and indeed Mr McGarvie did not make any submission to the contrary.

The plaintiff, of course, bears the onus of proving his case on the balance of probabilities. The allegation, which the plaintiff makes against Mr Goodie in this case, is quite serious. The conduct attributed to Mr Goodie is by no means as egregious as the conduct of the supervisor in Nationwide News Pty Ltd v Naidu[6]. Nevertheless, the plaintiff alleges that Mr Goodie significantly abused his office as the track manager, and took advantage of the dominion, which that office gave him over his employee, in order to humiliate and demean that employee. That conduct, attributed to Mr Goodie, would be a clear breach of the bullying policy adopted and implemented by the defendant. In the Further Amended Statement of Claim, it is pleaded that the behaviour, alleged to have been indulged in by Mr Goodie, was “misconduct”, which “was calculated to cause physical and/or mental harm to the plaintiff including recognisable psychiatric illness and/or injury”. Those considerations are relevant to my assessment of the evidence upon which the plaintiff relies to establish, on the balance of probabilities, that Mr Goodie indulged in the conduct alleged by him.[7]
[6]Citation above.
[7]Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 449-50; Gianoutsos v Glykis (2006) 65 NSWLR 539, 548 [49] (McClellan CJ); West v Nationwide News Ltd [2003] NSWSC 505, [48] (Simpson J); Walker v Department of Education and Early Childhood Development [2011] FCA 259, [36] (Tracey J); Evidence Act 2008 (Vic) s 140.

Of course, as pointed out by Mr McGarvie, when a team of workers is cutting the batters using the walk behind mower, the ordinary hand mowers and the whipper snipper, each of those workers are not necessarily working in close proximity to each other. Mr McGarvie submitted, therefore, that Mr Watson, Mr Nash and Mr Easton might have observed the plaintiff using the walk behind mower on his own, without realising that he was not doing so as a member of a team. However, that explanation is highly improbable, in light of the fact that the plaintiff has maintained that he performed that particular task for three or more months. If he was seen using the walk behind mower, under the rails, during that period, on more than one occasion, I do not consider that Watson, Nash and Easton would each have ignored the matter, by assuming that the plaintiff was carrying the function out as part of a team.

The final matter, on which the plaintiff relies in support of his claim that Mr Goodie bullied him, concerns the issue, which arose on 24 March 2004, because the plaintiff did not wear the correct shirt to work. There are a number of differences in the accounts given by the plaintiff on the one hand, and Mr Goodie and Mr Watson on the other hand, as to what occurred on that day. However, there are also a number of central factors, which are common to the accounts of each party. First, it was not disputed by the plaintiff that, at that date, a uniform had been issued to him by the defendant, which he was required to wear to work. There is some debate in the evidence as to when the uniform, which was finally agreed between all the parties, was issued to the employees of the defendant. It is not necessary for me to resolve that debate. The plaintiff himself, in his evidence, stated that, as at 24 March 2004, the defendant had issued to him a uniform, which included a particular shirt, and which he was required to wear. In cross-examination, he agreed that he knew that, if he did not attend work in the prescribed uniform, he could be stood down and sent home. Mr Watson gave evidence, which I accept, that it had been made clear to all the employees of the defendant that, at that time, they were expected to wear the uniform, once the uniform was issued to them.

It is also common ground that, on 24 March, the plaintiff was wearing the incorrect shirt to work. At the time, at which the issue arose between himself and Mr Goodie and Mr Watson, the plaintiff was wearing a jacket, which totally concealed the shirt. However, as he was attaching the trailer to the tractor, the shirt became untucked. The plaintiff agreed that Mr Goodie was present, at that stage, in order to assist him to attach the trailer to the tractor. It was then that Mr Goodie noted that the plaintiff was not wearing the correct shirt. There is some difference between Mr Goodie and the plaintiff as to the precise conversation, which then transpired between them. Certainly, each of them agreed that the plaintiff stated that, when asked why he was not wearing the correct shirt, he responded that his shirt was dirty. I accept the evidence of Mr Goodie that he also asked the plaintiff where his other shirts were, to which the plaintiff responded that they were at home.

Mr McGarvie, in his final address, contended that Mr Goodie then acted in a high handed manner by insisting that the plaintiff see Mr Watson. However, I accept the evidence of Mr Goodie and Mr Watson that, when the plaintiff refused to wear a prescribed shirt, Mr Goodie spoke to Mr Watson, who instructed Mr Goodie to bring the plaintiff to him.

It was also suggested that Mr Goodie acted oppressively, by not permitting the plaintiff to have the assistance of Mr Hilakari at the meeting. However, Mr Saunders was the appropriate union representative for the groundsmen. There is no evidence that Mr Saunders was ineffective in that role, or that he failed to stand up for the rights of the workers, who he was appointed to represent.

The evidence of each of the plaintiff, Mr Watson and Mr Goodie was to the effect that, when the plaintiff attended at the meeting, it was Mr Watson who told him that he should go home, because he was not wearing the correct shirt. Mr Watson’s evidence was that he sent the plaintiff home, in order to collect the proper tee shirt. The plaintiff stated that he was in fact simply sent home. Mr Goodie’s evidence on that point supports the evidence of the plaintiff. According to Mr Goodie, when the plaintiff stated that his shirt was dirty and he would not wear it, Mr Watson responded “Well, if you are not going to wear it, you can go home”. The difference is probably immaterial. The fact is that the plaintiff was sent home, because he refused to wear the correct shirt, and because he refused to fetch the shirt, which he claimed to be dirty.

According to the evidence of Mr Goodie, the plaintiff responded by saying to Mr Watson, “You may be the f’ing boss in here, but I’m the f’ing boss outside”. The plaintiff denied making that statement to Mr Watson. Mr Watson’s evidence itself was silent on the point. I have already discussed this matter earlier, when considering the credibility of Mr Goodie. On balance, I accept that the plaintiff did make that statement to Mr Watson. The evidence is that he was, at that stage, particularly upset, and acting in an emotional manner. However, I do not regard the point as being material.

It is also common ground that the plaintiff did point out to Mr Watson that there were other workers, who were not wearing the correct work shirt on that day. The plaintiff maintained, in his evidence, that Mr Goodie pre-empted any further discussion of that matter, by insisting that the plaintiff go home in any event. Mr Goodie, in cross-examination, said that when the plaintiff raised the issue, Mr Goodie responded by saying that there were not three or four employees who were all incorrectly attired, and that in any event the matter was in hand. Mr Watson himself stated that he was aware that some employees were not wearing the correct shirt, because they had not yet been issued with it. I accept the evidence of Mr Goodie and Mr Watson, that they each understood that the other workers, who were incorrectly attired, had an acceptable excuse, namely, that they had not yet been provided with the prescribed uniform.

Mr Watson and Mr Goodie also agreed that Mr Saunders suggested that the matter be resolved by the defendant providing the plaintiff with another shirt. Mr Goodie responded that the defendant did not have any spare shirts. Mr Watson stated that his view was that, in any event, the matter was a point of principle, namely, that the plaintiff was required to wear his own prescribed uniform.

The claim by the plaintiff is that the insistence by Mr Goodie, on 24 March, that he wear his correct uniform, and the actions of Mr Goodie, in taking him to see Mr Watson, and having him sent home, on that day, was part of conduct by Mr Goodie by which he bullied the plaintiff. Mr McGarvie submitted that Mr Goodie, on 24 March, acted in a high handed and oppressive manner. Further, he submitted that Mr Goodie acted in a discriminatory and selective way, by only insisting that the plaintiff, and not the other workers, wear the correct uniform.

I do not accept that submission. First, it is plain from the evidence of Mr Goodie and Mr Watson, which I accept, that the plaintiff, on that day, was demonstrating a refusal to wear the correct uniform. Secondly, as the plaintiff accepted, it had been made clear to all the defendant’s employees that, if they were not wearing the correct prescribed uniform, they would be sent home. Mr Watson and Mr Goodie had been recruited from Caulfield to Flemington, in order to improve the standards, both of the racecourse at Flemington, and of the staff who worked on it. Other employers might have responded differently to the manner in which Mr Watson and Mr Goodie reacted to the plaintiff’s refusal to wear the correct uniform on that date. However, that is not the issue. I am not satisfied that, in acting in the manner in which he did, Mr Goodie was attempting to victimise, bully or isolate the plaintiff. Nor do I consider that the conduct of Mr Goodie, on that day, demonstrated any pre-existing animosity or antagonism felt by Mr Goodie to the plaintiff.

In his evidence, the plaintiff stated that he became quite distressed at work, as a result of the tasks which were allocated to him by Mr Goodie between November 2003 and March 2004. In particular, he stated that, in the presence of Mr Goodie, he cried on five or six occasions. On the other hand, Mr Goodie stated that he did not have any perception that the plaintiff was stressed, or unwell, during that period.

The plaintiff’s evidence, that he manifested distress at work, was not supported by any other witness. In cross-examination, he admitted that he did not state that he had cried in front of Mr Goodie in his answers to interrogatories, or in the two affidavits which he swore in support of his serious injury application. In all the medical reports, which have been tendered in this case, there is no reference at all to a history, in which the plaintiff claimed to have cried when at work. Such a symptom would, I expect, be somewhat significant, particularly for the purposes of any medico-legal examination, which was directed to determining the cause, as well as the nature, of the plaintiff’s psychiatric condition. The plaintiff did state, in his evidence, that he told Dr Andrianakis that he had cried at work. In cross-examination, Dr Andrianakis also said that he had been told by the plaintiff that he had cried. However, there is no reference to the plaintiff crying, in Dr Andrianakis’s reports. Nor is there any reference to it in his notes. I do not regard Dr Andrianakis’s memory, of being told of that matter by the plaintiff, as being reliable. In those circumstances, I am not satisfied that the plaintiff exhibited any untoward distress while at work between November 2003 and 24 March 2004.

The plaintiff also stated in his evidence that, at one stage, he approached Mr Watson, and asked him “Why do you treat me like that?”. He said that Mr Watson responded that, when the plaintiff was working with a group of people, he slowed them down, but that when he did not, he worked like a “maniac”. In cross-examination, Mr Watson denied recollecting any such conversation. Further, Mr Watson’s evidence was that, rather than isolating the plaintiff in order to make him work more diligently, the defendant, at various times, endeavoured to accommodate the plaintiff’s wishes, both when he wished to work on his own, and also when he wished to work in a group.

I prefer the evidence of Mr Watson on this point, and I do not accept the plaintiff’s evidence as to the conversation which he alleges he had with Mr Watson. There is no suggestion that Mr Watson was a dishonest witness. The type of conversation, which the plaintiff recounted in his evidence, is one which would, in my view, have been retained in the memory of Mr Watson, if it had occurred. Further, there is no suggestion that Mr Watson was not a fair and decent employer. It would, in my view, have been quite contrary to Mr Watson’s approach for him to have permitted the isolation of the plaintiff, for the sole reason of disciplining him, as is suggested in the plaintiff’s version of the conversation. Therefore I am not satisfied that that conversation took place.

It is convenient, at this stage, to deal with the evidence of Mr Smoljko that, after the plaintiff complained to him about his work, he spoke to Mr Goodie. Mr Smoljko’s evidence was that when he asked Mr Goodie why he was isolating the plaintiff, and giving him demeaning work, Mr Goodie responded that the plaintiff had been disruptive to the group, and it was necessary to remove him in order to increase the productivity of the group. Mr Goodie, on the other hand, flatly denied that he spoke to Mr Smoljko about that topic. Mr Watson did have a recollection of speaking to Mr Smoljko, at that time, relating to the plaintiff’s work. Mr Watson did not have a good memory as to the topic which was discussed, but he considered that, probably, Mr Smoljko relayed to him a request by the plaintiff either that he work alone, or that he be returned to the group. Mr Watson did state that it was possible that he said to Mr Smoljko that the plaintiff was isolated because he was disrupting the group.

As I stated, I consider to Mr Smoljko to be an honest witness. However, his recollection, as to the meeting in question, was not good. He was unable to recall the topics which were discussed. His lack of recollection is understandable, given the passage of the years, and the fact that the plaintiff’s circumstances were but one of many matters, with which he had to deal in his capacity as an organiser with the Australian Workers Union. I accept Mr Goodie’s denial that Mr Smoljko spoke to him. I do accept that Mr Smoljko spoke to Mr Watson about the plaintiff’s work at that time. However, I am not satisfied, on all the evidence, that Mr Watson told Mr Smoljko that the plaintiff was deliberately isolated from the group because he was being disruptive. There is no evidence that the plaintiff was removed from the group for that purpose, or for any other purpose. Rather, Mr Watson’s evidence was that, from time to time, the plaintiff would request to work alone, and that, at other times, he would ask to work with the group. Mr Watson’s evidence was that the defendant did its best to accommodate those requests. Based on that evidence, I am not satisfied that the defendant did remove the plaintiff from the group, and require him to work alone, either because he was disruptive when working with the group, or for any other reason.

I do accept that the plaintiff was complaining about aspects of his work during that period leading up to March 2004. Mr Easton’s evidence, which I accept, is that the plaintiff was prone to complain about his work, not only during that period, but since Mr Easton commenced employment with the defendant at Flemington in August 2003. I also accept the evidence of Mr Watson and Mr Goodie that, on a number of occasions, both before and during that period, the plaintiff was given to asking to be allocated work which he could do on his own, and, on other occasions, he would ask to work with the group.

Mr Easton stated, in cross-examination, that the plaintiff’s complaints increased in stridency, and in frequency, during the period from November 2003 to March 2004. During the same period, Mrs Aksentijevic (whose evidence I accept) observed that the plaintiff was coming home stressed and upset, and that he was becoming quite frustrated with the work, which he was performing. I do accept that, during that period, the plaintiff was becoming increasingly dissatisfied with the circumstances, in which he was working. The precise cause of that dissatisfaction is not apparent. Mr Watson stated that the defendant was doing its best to accommodate the plaintiff’s wishes to work either on his own or in a group. However, as a matter of practicality, it was not always possible for the defendant to be able to accommodate each request made by the plaintiff. Mr Goodie agreed, in cross-examination, that during that period, Mr Saunders did, on one occasion, approach him concerning the work which the plaintiff was performing. I therefore accept that it was the plaintiff’s perception, at that time, that he was not being given the type of work, by his employer, which he would wish to undertake. It is also clear that that perception was giving rise, in the plaintiff, to a feeling of grievance against his employer. However, the fact that the plaintiff had that perception, and that feeling of grievance, does not mean that the plaintiff’s evidence, as to the tasks which he was then being required to perform, should be accepted.

It is also clear that matters came to a head, for the plaintiff, on 24 March 2004. On any account, the plaintiff was most upset by being required to go home, when it was noticed that he was not wearing the correct work shirt. It is also clear that it was that incident which precipitated the plaintiff’s psychiatric condition, from which he still suffers.

It is of course not in dispute that the plaintiff has suffered from a serious psychiatric illness over the last seven and a half years. It is also not in dispute that the first occasion upon which the plaintiff consulted any medical practitioner, in respect of that condition, was on 25 March, after he left work and returned home in a highly distressed state. However, the fact that the plaintiff did suffer such a psychiatric injury does not prove the truth of the complaints, which he has made about Mr Goodie. Dr Tan, his current treating psychiatrist, stated that the history, which he took from the plaintiff, and on which he formed his opinion, was a critical diagnostic tool. Dr Tan stated that if, in fact, the plaintiff was not required to undertake the tasks, which he described to Dr Tan, then his conclusion, that the plaintiff’s injury arose out of the manner in which he was treated by a superior at work, would be significantly undermined. Dr Tan stated that, in those circumstances, he would not regard the plaintiff as suffering from a chronic adjustment disorder, but Dr Tan would still be treating the plaintiff for anxiety and depression.

Conclusion

In light of the foregoing analysis, I now state the conclusions, which I have reached on the critical question, namely, whether I am satisfied, on the balance of probabilities, that Mr Goodie bullied the plaintiff between November 2003 and March 2004 in the manner alleged by the plaintiff.

In summary, I did not find the plaintiff to be a particularly convincing witness. On the other hand Mr Goodie presented as a credible witness. It is not in dispute that Mr Watson, Mr Nash and Mr Easton were each witnesses of truth. I consider that their evidence was reliable and credible.

There are significant factors which weigh against a conclusion, on the balance of probabilities, that Mr Goodie bullied the plaintiff in the manner alleged. They include:

(1)The plaintiff has not proven that Mr Goodie had any possible motive or reason to commence bullying him in November 2003, and to continue to do so until March 2004. I am satisfied on the evidence that, apart from the allegations in this case, Mr Goodie was fair, but firm, with the employees who worked under him. The plaintiff had no difficulty working with Mr Goodie until November 2003. No reason has been properly demonstrated as to why Mr Goodie would, in November 2003, commence to bully the plaintiff, and why he would continue to do so for the next four months.
(2)The allegation of bullying against Mr Goodie is inherently improbable. In particular, the allegation that the plaintiff was allocated a number of meaningless and unproductive tasks is inconsistent with the evidence that Mr Goodie was dedicated to improving the performance, appearance and reputation of Flemington Racecourse. Secondly, Mr Goodie was well aware of the anti-bullying policy of the defendant. There is no reason why he would have wished to take such a significant risk with his career, by indulging in conduct, which he knew was significantly unacceptable to his employer, and which might result in his dismissal.
(3)The plaintiff’s claim, that he was required to undertake the three tasks allocated to him between November 2003 and March 2004, is not supported by any other witness. To the contrary, Mr Watson, Mr Nash and Mr Easton each gave evidence, which I accept, that they did not see the plaintiff perform any of those tasks. I also accept that each of those witnesses would have observed the plaintiff performing those tasks, if in fact he had been undertaking them. In my view, it is inconceivable that each of those three witnesses did not see the plaintiff undertaking any, let alone all, of the three tasks, which the plaintiff claims he performed between November 2003 and March 2004, if he was in fact performing them.

Each of those factors, individually, significantly undermine the plaintiff’s case. The collective weight of them is, in my view, powerful. Based on those factors, and on my assessment of the plaintiff and Mr Goodie as witnesses, I am not satisfied, on the balance of probabilities, that the plaintiff was required to undertake the task of collecting stones from the sand track, of collecting manure from the sand track and the Visco track, or of cutting the batters alone and solely by use of the walk behind mower, as he has alleged.

Further, for the reasons which I have already set out, I do not regard the reaction of Mr Goodie, on 24 March 2004, to the fact that the plaintiff attended work in his incorrect uniform, to have been such as to constitute an act of bullying or oppressive behaviour towards the plaintiff. As I stated, other employers may (or may not) have reacted differently in such a situation. However, I am not satisfied that the reaction by Mr Goodie on that day constituted bullying, or behaviour by which he victimised the plaintiff. Nor was his conduct such as to manifest, or support the existence of, any pre-existing animosity or antagonism felt by Mr Goodie towards the plaintiff.

In those circumstances, I am not satisfied, on the balance of probabilities, that the critical allegation relied on by the plaintiff, namely, that Mr Goodie bullied him, is proven. The plaintiff’s case is singularly based on that allegation. As I am not satisfied that that allegation has been proven on the balance of probabilities, it follows that the claim made by the plaintiff, based on the principles in Wilkinson v Downton, must fail. It also follows that the plaintiff’s claims based in negligence, and in breach of contract, would also fail. Accordingly, the plaintiff’s action must be dismissed.

Injury and damages

Notwithstanding that conclusion, I should also, briefly, record some common ground, and any necessary findings which I would otherwise have needed to make, on the issue of damages.

As I stated, it was common ground that the plaintiff has suffered from a serious psychiatric injury over the last seven and one half years. The medical reports, which were tendered in evidence, differ, to a degree, as to the precise nature of that condition. However, the defendant, correctly, has accepted that, as a result of that condition the plaintiff has been permanently disabled from working since 25 March 2004, and that he is unlikely to obtain gainful employment again.

It was agreed between the parties that, if the plaintiff been employed in the same position since 24 March 2004, he would have earned $319,374. He has also lost superannuation benefits valued at $24,432 for that period. There is no evidence that the plaintiff has suffered from any other ill health, or underlying physical condition, which would have prevented him working during that period. If I had assessed damages, I would have discounted his past loss of earnings by five percent for the vicissitudes of life.

It was also agreed that the plaintiff’s loss of future earnings would have been assessed in the sum of $438,165. In addition, his loss of future superannuation would be calculated in the sum of $35,066. If I had been required to assess the plaintiff’s damages, I would have discounted those amounts by 15 percent for the vicissitudes of life.

It was also agreed between the parties that the “Fox v Wood”[9] component of the plaintiff’s loss consists of the sum of $7,000.
[9]Fox v Wood (1981) 148 CLR 438.

As a result of the plaintiff’s permanent psychiatric condition, it is clear that he has suffered, and will continue to suffer, a significant diminution in his capacity to enjoy life, and that he has suffered and will continue to suffer substantial emotional and psychological pain. I would have awarded the plaintiff general damages in the sum of $200,000.

Orders

As I am not satisfied, on the balance of probabilities, that the plaintiff was subjected to the bullying which he has alleged against Mr Goodie, it follows that the plaintiff’s claim must fail. Accordingly, the proceeding should be dismissed. I shall hear counsel on any question of costs.

[2011] VSC 538

27 October 2011